REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DIANE S. SYKES, J. This
termination of parental rights (TPR) case presents two issues for our review:
1) whether partial summary judgment pursuant to Wis. Stat. § 802.08 (2001-02)
is available in the first phase of a TPR case, at which parental unfitness is
adjudicated; and 2) whether the circuit court is required at the initial TPR
hearing to advise the nonpetitioning party of his or her right under Wis. Stat.
§ 48.422(5) to a continuance to consult with counsel on the issue of judicial
substitution.
¶2 Alexander V.'s father filed a petition to terminate Kelley H.'s
parental rights to Alexander, alleging as grounds that Kelley had been denied
physical placement and visitation by court order for more than one year
pursuant to Wis. Stat. § 48.415(4).
Kelley requested a jury trial.
At the fact-finding hearing the circuit court granted the guardian ad
litem's motion for summary judgment on the issue of unfitness, based upon the
undisputed fact that Kelley had been denied placement and visitation by a court
order that had been in place, unmodified, for more than two years. After a dispositional hearing, the circuit
court terminated Kelley's parental rights.
The court of appeals affirmed, concluding that although the circuit
court had committed two procedural errors——by employing summary judgment
procedure and failing to advise Kelley of her statutory right to a continuance
to consult with counsel about judicial substitution——these errors were
harmless. Steven V. v. Kelley H.,
2003 WI App 10, 263 Wis. 2d 241, 663 N.W.2d 817. We affirm, although on different reasoning.
¶3 A parent who contests a TPR petition has a statutory right to a
jury trial at the fact-finding hearing at which his or her parental unfitness
is adjudicated——the so-called "grounds" or "unfitness"
phase of a TPR proceeding. Wis. Stat. §
48.31(2). The statutory grounds for
termination of parental rights are specified in Wis. Stat. § 48.415, and
several of these may be proved by official documentary evidence. See, e.g., Wis. Stat. § 48.415(1m),
(4), (9), and (9m).
¶4 By statute and as a matter of procedural due process, parental
unfitness must be proved by clear and convincing evidence. Wis. Stat. § 48.31(1); Santosky v. Kramer,
455 U.S. 745 (1982). The jury trial
right, however, is entirely statutory, not mandated by constitutional due
process, and is therefore generally subject to the provisions of the civil
procedure code, including the summary judgment statute, Wis. Stat. § 802.08,
unless the TPR statutes provide otherwise.
See Wis. Stat. § 801.01(2).
The TPR statutes do not provide otherwise, either explicitly or
implicitly.
¶5 We conclude that partial summary judgment in the unfitness phase
of a TPR case is available where the requirements of the summary judgment
statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31
have been met. An order granting
partial summary judgment on the issue of parental unfitness where there are no
facts in dispute and the applicable legal standards have been satisfied does
not violate the parent's statutory right to a jury trial under Wis. Stat.
§§ 48.422(4) and 48.31(2), or the
parent's constitutional right to procedural due process.
¶6 Accordingly, partial summary judgment may be granted in the
unfitness phase of a TPR case where the moving party establishes that there is
no genuine issue as to any material fact regarding the asserted grounds for
unfitness under Wis. Stat. § 48.415, and, taking into consideration the
heightened burden of proof specified in Wis. Stat. § 48.31(1) and required by
due process, the moving party is entitled to judgment as a matter of law. We overrule Walworth County Dep't of
Human Servs. v. Elizabeth W., 189 Wis. 2d 432, 525
N.W.2d 384 (Ct. App. 1994), to the extent that it outright prohibited
summary judgment in TPR proceedings.
The circuit court's use of summary judgment procedure was not error.
¶7 We also withdraw the language in M.W. and I.W. v. Monroe County
Dep't of Human Servs., 116 Wis. 2d 432, 342 N.W.2d 410 (1984), that
purported to articulate a requirement that the circuit court advise any
nonpetitioning party in a TPR case of his or her right under Wis. Stat. §
48.422(5) to a continuance to consult with counsel about judicial
substitution. M.W. and I.W.
described too broadly the statutory duties of the circuit court at the initial
TPR hearing under Wis. Stat. § 48.422(1).
In fact, the statute does not require the circuit court to advise
nonpetitioning parties of the statutory right to a continuance to consult with
counsel regarding judicial substitution.
The circuit court's failure to do so here was not error.
I.
FACTS AND PROCEDURAL HISTORY
¶8 On August 8, 2001, Steven V., Alexander's father, filed a petition
in Grant County Circuit Court to terminate Kelley H.'s parental rights to
Alexander. As grounds for termination
Steven alleged continuing court-ordered denial of physical placement and
visitation for more than one year pursuant to Wis. Stat. § 48.415(4). In his petition, Steven alleged that Kelley
had been denied custody, placement, and visitation of Alexander by an order of
the Brown County Circuit Court that had been in place and remained unmodified
for more than one year.
¶9 Steven's petition did not contain the order to which it referred,
but the motion for summary judgment that is the focus of this appeal did. The documentary record reflects that on May
12, 1999, in Brown County Circuit Court, the Honorable William C. Griesbach
awarded Steven sole legal custody and physical placement of Alexander, and
denied Kelley custody, placement, and visitation. In written "Findings of Fact, Conclusions of Law, and
Judgment of Custody and Placement," filed on June 28, 1999, the circuit
court found that Kelley had physically neglected Alexander and had emotionally
abused him by trying to "brainwash him" into believing that his
father was evil. The court also found
that Kelley had attempted to arrange the murder of Steven and his wife, had
absconded to California with Alexander, and had made false accusations of child
abuse against Steven and his wife. The
court awarded sole custody and physical placement of Alexander to Steven, and
denied Kelley custody, placement, and "any and all visitation,"
concluding that contact between mother and child would endanger Alexander's
physical and especially emotional health.
The court also imposed a number of conditions that Kelley would need to
satisfy before any modification of the ban on visitation would be
considered.
¶10 An initial hearing on the TPR petition was held in Grant County
Circuit Court on September 4, 2001, before the Honorable Robert B.
VanDeHey. Kelley appeared with her
attorney and requested a jury trial.
¶11 On September 17, 2001, Alexander's guardian ad litem filed a
"Motion for Summary Judgment or in the Alternative Directed Verdict"
in which he asserted that no genuine issue of material fact existed as to the
grounds for termination alleged in the petition and that Steven was entitled to
judgment as a matter of law. The
motion was supported by an affidavit of the guardian ad litem recounting the
procedural history of the Brown County custody proceeding, and included a copy
of Judge Griesbach's June 28, 1999, order.
¶12 Kelley responded to the motion by arguing that Elizabeth W.
prohibits summary judgment in TPR proceedings.
Kelley conceded that directed verdicts were permissible in TPR cases,
but insisted that before a directed verdict could be entered in her case, the
court was required to empanel a jury to hear evidence.
¶13 On October 15, 2001, the circuit court conducted a hearing at which
counsel and the court discussed the procedural issues occasioned by the
guardian ad litem's motion. Ultimately,
the court scheduled a fact-finding hearing for November 2, 2001, and stated
that Kelley would have until October 25, 2001, to identify any facts in dispute
that would necessitate a jury trial for fact-finding with respect to the TPR
grounds alleged in Steven's petition.
¶14 Kelley did not respond by the October 25, 2001, deadline. At the November 2, 2001, hearing, the
parties were presented with an order of the court apparently prepared and
submitted sometime earlier by the guardian ad litem but dated, signed, and
filed on November 2, 2001. The order
memorialized what had occurred at the prior hearing, and further provided as
follows:
[t]his matter will be scheduled for fact finding on
November 2, 2001 at 2:30 p.m. at which time the Court will rule in favor of the
Guardian ad Litem's motion for directed verdict unless Attorney Gaskell, on
behalf of Kelley H., files notification to the Court on or before October 25,
2001 that a legitimate issue exists to be tried at trial.
The order also stated that the
Motion for Summary Judgment or in the Alternative for Directed Verdict would be
heard on October 15, 2001, that is, the date of the prior hearing, two weeks
before the order was signed and entered.
¶15 Despite these incongruities, the parties agreed at the November 2
hearing that there were no facts in dispute as to the existence of an
unmodified court order denying Kelley placement and visitation with Alexander,
and that the order had been in place for more than one year. Kelley's attorney stated that "it's
clear that, based on what the elements are as grounds in this case, that the
Court does have the authority to direct a verdict in regard to that——or summary
judgment, I guess, type motion."
There was a brief discussion about whether the reasons for Kelley's
noncompliance with the conditions set forth in Judge Griesbach's order for
modification of the visitation ban would be relevant at the unfitness phase or
at the dispositional phase. Kelley's
position was not entirely clear, although at one point her attorney conceded
that "if the reasons why she did not comply with that order we believe
would not be relevant at the first phase of that, then I agree that
fact-finding hearing is not required and we don't need a trial."
¶16 The circuit court concluded that the reasons for Kelley's
noncompliance "are very relevant but not at this stage." The court then took judicial notice of the
file in the Brown County case, which "substantiate[s] that both elements
are present, first that [Kelley H.] has been denied periods of physical
placement by court order in an action affecting the family and that the notice
was given, and second that at least a year elapsed since the order denying
periods of physical placement was issued, and there was no
modification." The court then
scheduled a dispositional hearing, and discussed with counsel the parameters of
that hearing. On November 9, 2001, the
circuit court entered a written order directing a verdict in favor of Steven on
the issue of Kelley's parental unfitness pursuant to Wis. Stat. § 48.415(4). The dispositional hearing was held on April
11 and 12, 2002, after which the circuit court concluded that it was in
Alexander's best interests to terminate Kelley's parental rights, and entered
judgment accordingly.
¶17 Kelley moved for new fact-finding and dispositional hearings,
arguing that she had been denied her right to a jury trial for fact-finding and
her right to due process, and that there was insufficient evidence to support
termination. She also argued that at
the time of the initial hearing she had not been informed of her right under
Wis. Stat. § 48.422(5) to a continuance to consult with counsel regarding
judicial substitution. The circuit
court denied the motion.
¶18 Kelley appealed, reiterating the claims of error stated in her
post-judgment motion. The court of
appeals held that pursuant to Elizabeth W., the circuit court had erred
by granting what amounted to summary judgment at the grounds phase. However, the court concluded that the error
was harmless because there was no dispute of fact relevant to the grounds for
termination, and Kelley was not prejudiced by the error. Kelley H., 263 Wis. 2d 241,
¶¶22-28. The court of appeals also
suggested that Elizabeth W.'s prohibition on summary judgment in TPR
proceedings might be overbroad, considering that certain grounds for
termination were provable by undisputed court order. Id., ¶¶15-21. The
court nevertheless considered itself bound by Elizabeth W., and stated
that any argument that the case had been incorrectly decided must be directed
to this court. Id., ¶21.
¶19 The court of appeals also held that the circuit court's failure to
inform Kelley of her right to request a continuance to consult with her
attorney about judicial substitution was error, citing language in this court's
decision in M.W. and I.W. that purports to impose such a warning
requirement. Id., ¶¶31-35. While the statutory right to a continuance
to confer with counsel about judicial substitution was not in fact at issue in M.W.
and I.W., this court's opinion contained broad language specifying the
circuit court's statutory duties at the initial TPR hearing, including a duty
to advise the nonpetitioning party of his or her right to a continuance to
consult with counsel about judicial substitution. See M.W. and I.W., 116 Wis. 2d at 440-41. The court of appeals majority declined to
treat this language as dicta, but ultimately concluded that the circuit court's
error in failing to follow it was harmless.
Kelley H., 263 Wis. 2d 241, ¶¶34-35, 41-42.
II.
STANDARD OF REVIEW
¶20 The two questions in this case——whether the summary judgment
statute applies in TPR cases and whether a circuit court is statutorily
required to advise a nonpetitioning party in a TPR case of his or her right to
a continuance to consult with counsel about judicial substitution——are
questions of law subject to de novo review.
Brandon S.S. v. Laura S., 179 Wis. 2d 114, 127, 507
N.W.2d 94 (1993).
III. ANALYSIS
¶21 Parental rights termination adjudications are among the most
consequential of judicial acts, involving as they do "the awesome
authority of the State to destroy permanently all legal recognition of the
parental relationship." Evelyn C.R. v. Tykila S., 2001 WI 110, 246
Wis. 2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519
U.S. 102, 127-28 (1996)). Termination
of parental rights permanently extinguishes "all rights, powers,
privileges, immunities, duties and obligations existing between parent and
child." Wis. Stat.
§ 48.40(2).
¶22 A parent's interest in the parent-child relationship and in the
care, custody, and management of his or her child is recognized as a
fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753
(1982). The United States Supreme Court
has described the fundamental nature of parental rights in this way:
It is plain that the interest of a parent in the
companionship, care, custody, and management of his or her children
"come[s] to this Court with a momentum for respect lacking when appeal is
made to liberties which derive merely from shifting economic
arrangements." Kovacs v. Cooper,
336 U.S. 77, 95 (1949)(Frankfurter, J., concurring).
The Court has
frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been
deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399
(1923), "basic civil rights of man," Skinner v. Oklahoma, 316
U.S. 535, 541 (1942), and "rights far more precious . . . than property
rights," May v. Anderson, 345 U.S. 528, 533 (1953). "It is cardinal with us that the
custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder." Prince
v. Massachusetts, 321 U.S. 158, 166 (1944).
Stanley v. Illinois, 405
U.S. 645, 651 (1972).
¶23 Thus, due process requires that "[w]hen the State moves to
destroy weakened familial bonds, it must provide the parents with fundamentally
fair procedures." Santosky,
455 U.S. at 753-54. These include the
requirement of a hearing, Stanley, 405 U.S. at 649, and proof of
parental unfitness by clear and convincing evidence, Santosky, 455 U.S.
at 747-48.
¶24 Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights. Sheboygan
County DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648
N.W.2d 402. In the first, or
"grounds" phase of the proceeding, the petitioner must prove by clear
and convincing evidence that one or more of the statutorily enumerated grounds
for termination of parental rights exist.
Wis. Stat. § 48.31(1); Waukesha County Dep't of Soc. Servs. v.
C.E.W., 124 Wis. 2d 47, 60, 368 N.W.2d 47 (1985).
¶25 There are 12 statutory grounds of unfitness for termination of
parental rights, see Wis. Stat. § 48.415(1)-(10), and if a petitioner
proves one or more of the grounds for termination by clear and convincing
evidence, "the court shall find the parent unfit." Wis. Stat. § 48.424(4); Julie A.B.,
255 Wis. 2d 170, ¶26. There are no
"degrees of unfitness" under the statutory scheme; a court has no
discretion to refrain from finding a parent unfit after all the elements of a
statutory ground have been established.
Id., ¶¶36-37.
¶26 The consistent legislative objective throughout the Children's Code
is "the best interests of the child." Wis. Stat. § 48.01(1).
However, in TPR cases, the "best interests" standard does not
"dominate every step of every proceeding." Julie A.B., 255
Wis. 2d 170, ¶22. The best
interests of the child do not "prevail" until the parent has been
declared unfit after fact-finding by the court or jury at the grounds phase of
the TPR proceeding. Id. A finding of parental unfitness is a
necessary prerequisite to termination of parental rights, but a finding of
unfitness does not necessitate that parental rights be terminated. Once the court has declared a parent unfit,
the proceeding moves to the second, or dispositional phase, at which the
child's best interests are paramount. Id.,
¶28.
¶27 At the dispositional phase, the court is called upon to decide
whether it is in the best interest of the child that the parent's rights be
permanently extinguished. Wis. Stat.
§ 48.426(2). "The outcome of
this hearing is not predetermined, but the focus shifts to the interests of the
child." Julie A.B., 255
Wis. 2d 170, ¶28. In making this determination,
which we have described as "one of the most wrenching and agonizing in the
law," the court "should welcome" any evidence relevant to the
issue of disposition, including any "factors favorable to the
parent," and must at a minimum consider the six "best interests"
factors set forth in Wis. Stat. § 48.426(3).
Id., ¶29.
A. Summary judgment in TPR proceedings
¶28 We are concerned here with the "grounds" or
"unfitness" phase of a TPR case, and specifically whether the use of
summary judgment procedure under Wis. Stat. § 802.08 at this first phase of the
proceeding violates the parent's rights under the TPR statutes or procedural
due process. Kelley asserts that this
question has already been answered by the court of appeals' decision in Elizabeth
W.
¶29 Elizabeth W. involved a petition to terminate parental
rights on grounds of abandonment and continuing need of protection or
services. Elizabeth W., 189
Wis. 2d at 434. The circuit
court granted a motion for summary judgment against Elizabeth, having concluded
that the affidavit and supporting documents filed by her attorney in opposition
to the motion were nonevidentiary and insufficient to defeat the petitioner's
motion. Id. at 435. After a dispositional hearing, the circuit
court terminated Elizabeth's parental rights to her two children. Id.
¶30 The court of appeals reversed, broadly concluding that
"summary judgment is inappropriate in TPR cases where a parent contests
the termination." Id. at
436. The court premised this conclusion
on the principle that parental rights are fundamental liberty interests
protected by the due process clause of the Fourteenth Amendment, and therefore
any state action to terminate parental rights "'must be accomplished by
procedures meeting the requisites of the Due Process Clause.'" Id. at 436-37 (quoting Santosky,
455 U.S. at 753). The court stated that
a hearing on the issue of unfitness is required by statute, Wis. Stat.
§§ 48.422(2), 48.31(1), as well as by due process. Id. at 437. The court of appeals then concluded that:
[A] TPR proceeding can never be without material issues
of fact if a parent refuses to voluntarily terminate his or her right to the
child. . . . By contesting the termination, a parent automatically raises the
issue of whether he or she is a fit parent.
This creates a genuine issue of material fact which cannot be disposed
of by summary judgment.
Id. at 438.
¶31 The principles underlying the decision in Elizabeth W.
were unquestionably sound and well-established; we conclude, however, that the
court's holding was overbroad. Neither
due process nor the TPR statutes require an absolute prohibition on summary
judgment in the grounds or unfitness phase of a TPR proceeding. That a parent has contested the termination
of his or her parental rights does not automatically mean there are material
facts in dispute regarding the grounds for unfitness.
¶32 The code of civil procedure applies to "all civil actions
and special proceedings" unless a "different procedure is prescribed
by statute or rule." Wis. Stat. §
801.01(2). Parental rights termination
proceedings under Chapter 48 are civil proceedings, and this general rule of
civil procedure applicability has been cited in the context of TPR cases on
numerous occasions: Evelyn C.R., 246 Wis. 2d 1, ¶17 (default judgment as
a sanction for violation of a court order pursuant to Wis. Stat. §§ 802.10(7),
804.12(2)(a), and 805.03 is available in TPR proceedings; also, the harmless
error rule of Wis. Stat. § 805.18(2) applies in TPR cases); Brandon S.S.,
179 Wis. 2d at 143-44, (citing the general rule that the civil procedure code
governs Chapter 48 proceedings but concluding that the general intervention
statute, Wis. Stat. § 803.09, conflicts with the exclusive procedure in Wis.
Stat. § 48.42(2) for determining proper parties to a TPR proceeding); Waukesha
County DSS, 124 Wis. 2d at 53, 66-70 (rules regarding jury instructions,
preremptory strikes and summation pursuant to Wis. Stat. § 805.13(3),
805.08(3), and 805.10 apply in TPR proceedings); Door County Dep't of Health
& Family Servs. v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct.
App. 1999)(directed verdict pursuant to Wis. Stat. § 805.14(4) applies in TPR
proceedings); J.A.B. v. Waukesha County Human Servs. Dep't, 153 Wis. 2d
761, 765, 451 N.W.2d 799 (Ct. App. 1989)(same).
¶33 There is nothing in the TPR statutes that explicitly or
implicitly prohibits the use of summary judgment procedure under Wis. Stat. §
802.08 in the unfitness phase of a TPR case.
Nor do the TPR statutes prescribe a procedure different from Wis. Stat.
§ 802.08 for TPR cases in which there is no genuine dispute of fact on the
issue of unfitness under Wis. Stat. § 48.415.
Kelley argues that a court order granting partial summary judgment on
parental unfitness conflicts with the right to a jury trial at the fact-finding
hearing, which she contends is an absolute right under the statutes, Wis. Stat.
§§ 48.422(3), (4), and 48.31(2), and as a matter of due process. We disagree.
¶34 The jury trial right at the fact-finding hearing in the unfitness
phase of a TPR case is entirely statutory, not mandated by constitutional due
process, and is therefore subject to the general provisions of the civil
procedure code, including the provisions regarding summary judgment, Wis. Stat.
§ 802.08. A parent may, pursuant to
Wis. Stat. § 48.422(4), request a jury for the fact-finding hearing, and the
jury, if one is requested, makes findings of fact on the grounds for unfitness
alleged in the TPR petition pursuant to Wis. Stat. § 48.31(3) and (4). The circuit court, however, is always
responsible for conclusions of law, as is specifically recognized in the TPR
statutes. See Wis. Stat. §
48.31(4). If a motion for summary
judgment is made and supported as prescribed by Wis. Stat. § 802.08, the
circuit court may properly conclude at the fact-finding hearing that there is
no genuine issue of material fact in dispute and the moving party is entitled
to partial summary judgment on parental unfitness as a matter of law. See Wis. Stat. § 802.08(2).
¶35 Summary judgment is a legal conclusion by the court, and, if
carefully administered with due regard for the importance of the rights at
stake and the applicable legal standards, is just as appropriate in the
unfitness phase of a TPR case where the facts are undisputed as it is in any
other type of civil action or proceeding which carries the right to a jury
trial. Summary judgment procedure requires notice,
an opportunity to respond, and a hearing, and imposes on the moving party the
burden of demonstrating both the absence of any genuine factual disputes and
entitlement to judgment as a matter of law under the legal standards applicable
to the claim. Wis. Stat. § 802.08(2)
and (3).
¶36 In many TPR cases, the determination of parental unfitness will
require the resolution of factual disputes by a court or jury at the
fact-finding hearing, because the alleged grounds for unfitness involve the
adjudication of parental conduct vis-à-vis the child. See Wis. Stat. § 48.415(1)(abandonment); Wis. Stat. §
48.415(2)(child in continuing need of protection or services); Wis. Stat. §
48.415(3)(continuing parental disability); Wis. Stat. § 48.415(5)(child abuse);
Wis. Stat. § 48.415(6)(failure to assume parental responsibility);
Wis. Stat. § 48.415(7)(incestuous parenthood). Summary judgment will ordinarily be
inappropriate in TPR cases premised on these fact-intensive grounds for
parental unfitness.
¶37 Some statutory grounds for unfitness, however, are expressly
provable by official documentary evidence, such as court orders or judgments of
conviction. See Wis. Stat. § 48.415(1m)(relinquishment,
provable by court order); Wis. Stat. § 48.415(4)(continuing denial of periods
of physical placement or visitation, provable by court order); Wis. Stat. §
48.415(8)(homicide or solicitation to commit homicide of parent, provable by
judgment of conviction); Wis. Stat. § 48.415(9)(parenthood as a result of
sexual assault, provable by judgment of conviction); Wis. Stat. §
48.415(9m)(commission of serious felony against one of the person's children,
provable by judgment of conviction); Wis. Stat. § 48.415(10)(prior involuntary
termination of parental rights to another child, provable by court order). Some of these so-called "paper
grounds" for parental unfitness have been recently adopted, seriously
undermining the broad holding of Elizabeth W.
¶38 In 1995, the legislature enacted a new ground for termination in
cases of parenthood as a result of sexual assault: Wis. Stat. § 48.415(9)
provides that conception as a result of sexual assault "may be proved by a
final judgment of conviction . . . indicating that the person
who may be the father of the child committed, during a possible time of
conception, a sexual assault as specified in this paragraph against the
mother." Wis. Stat.
§ 48.415(9). Later in the same
session, the legislature enacted two more new grounds for unfitness: commission
of a serious felony against one of the parent's children, "as evidenced by
a final judgment of conviction," see Wis. Stat. § 48.415(9m);
and prior involuntary termination of parental rights to another child, provable
by court order, see Wis. Stat. § 48.415(10).
¶39 Each of these newly-created grounds for involuntary termination of
parental rights expressly provides that circuit court orders or judgments
constitute proof of unfitness. Similarly,
the ground for termination alleged in this case, continuing denial of periods
of physical placement or visitation, is expressly provable by evidence of a
court order. See Wis. Stat.
§ 48.415(4)(a) and (b). This
evinces the legislature's manifest intent to enable unfitness determinations to
conclusively flow from certain existing court orders that satisfy the statutory
requirements. We fail to see how this
intent is furthered by requiring the empanelment of a jury to receive evidence
of the existence of a court order or judgment about which there is no
dispute. The availability of partial
summary judgment in the grounds phase of a TPR proceeding where the entire
proof of unfitness under the statute is an undisputed court record furthers the
legislature's purpose and is consistent with the general rule that the
provisions of the code of civil procedure apply to all civil actions and
proceedings.
¶40 Kelley's argument that applying summary judgment at the unfitness
phase of a TPR case violates due process is not well-developed. Its premise seems to be that there is a
constitutional right to fact-finding by a jury in all TPR cases, even where the
facts of unfitness are undisputed. This appears also to be the premise of Elizabeth
W., although the court of appeals did not apply the Supreme Court's
three-part test for determining what process is constitutionally due in TPR
cases. In Santosky, the Supreme
Court held:
[T]he nature of the process due in parental rights
termination proceedings turns on a balancing of the "three distinct
factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96
S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): the private interest affected by the
proceeding; the risk of error created by the State's chosen procedure; and the
countervailing governmental interest supporting the use of the challenged
procedure.
Santosky, 455 U.S. at
754.
¶41 Applying this test here, we reiterate that the private interest
affected by a TPR proceeding is unquestionably very strong. However, the remaining two factors in the
three-factor test weigh heavily against a conclusion that a jury trial is
constitutionally required in TPR cases.
¶42 The risk of error in applying partial summary judgment at the
grounds phase of a TPR proceeding where the facts of unfitness are undisputed
is extremely low. The grounds for
unfitness most likely to form the basis of a successful motion for partial
summary judgment in a TPR case are those that are sustainable on proof of court
order or judgment of conviction, the reliability of which is generally readily
apparent and conceded. Furthermore, as
we have noted, a finding of unfitness is only the first of two steps in the
process. A finding of
unfitness——whether on fact-finding by the court or jury where the facts are
disputed or on partial summary judgment where the facts are undisputed——does
not mandate termination of parental rights, nor does it foreclose the parent's
opportunity to present evidence and argue against termination at the
dispositional hearing.
¶43 Finally, the countervailing governmental interest in avoiding
pointless jury trials where there is nothing to try is substantial. Jury trials are expensive and
time-consuming. Parental rights
termination cases generally require the participation of at least three
publicly-financed attorneys (the guardian ad litem, and the attorneys for the
county and the parent), as well as the circuit court judge, court staff, and
jurors. Elizabeth W.'s
bright-line prohibition of summary judgment in TPR cases appears to require the
empanelment of a jury to listen to evidence even when it is a foregone
conclusion that a directed verdict is the only possible outcome. To mandate a jury trial where the parent
does not dispute the facts regarding unfitness alleged in the petition is a
complete waste of judicial resources.
¶44 Accordingly, although the private interest at stake is
fundamental, we conclude that due process does not mandate a jury trial in the
unfitness phase of a TPR case. The jury
trial right in TPR cases is statutory only, and is therefore subject to the
provisions of the code of civil procedure, including summary judgment procedure
as specified in Wis. Stat. § 802.08.
Due process requires a hearing, Stanley, 405 U.S. at 649, and
clear and convincing proof of unfitness, Santosky, 455 U.S. at 747-48,
and summary judgment procedure under Wis. Stat. § 802.08 accommodates
both. Elizabeth W.'s broad
prohibition against the use of summary judgment in the unfitness phase of a TPR
case was statutorily and constitutionally unwarranted, and we therefore
overrule it.
¶45 We also conclude that partial
summary judgment was properly granted in this case. The guardian ad litem's motion was presented, somewhat
irregularly, as "Motion for Summary Judgment or in the Alternative Directed
Verdict," but the motion was legally sufficient as a motion for summary
judgment, and was accompanied by an affidavit of the guardian ad litem
attaching the unmodified Brown County Circuit Court order denying Kelley
placement and visitation. Kelley was
given an opportunity to respond to the motion.
She filed a written response, which the court considered and discussed
with the parties at the October 15, 2001, hearing. Judge VanDeHey postponed ruling on the motion until the November
2, 2001, hearing, at which Kelley was present, represented by counsel, and was
again given an opportunity to be heard.
¶46 At the November 2 hearing, Kelley conceded that there was no
dispute of fact regarding the grounds alleged in the petition——that she had
been denied physical placement and visitation by court order and that the court
order had remained in effect, unmodified, for more than one year. The circuit court took judicial notice of
the Brown County Circuit Court order and concluded that it satisfied the
statutory elements necessary for unfitness under Wis. Stat. § 48.415(4). Although the written order that was entered
after the hearing used the terminology of a directed verdict, we conclude it is
sufficient as an order granting partial summary judgment of unfitness.
¶47 Kelley makes a fallback argument that summary judgment was
inappropriate because she was entitled to present evidence regarding her
reasons for having failed to comply with the conditions for re-establishing
visitation set forth in the Brown County judgment. She cites State v. Fredrick H., 2001 WI App 141, 246
Wis. 2d 215, 630 N.W.2d 734, in which the court of appeals held
that such evidence was relevant at the grounds phase of a TPR proceeding, and,
further, that a circuit court's refusal to allow such evidence at the grounds
phase deprived the parents of the right "to meaningfully participate in
the termination proceedings." Id.,
¶13.
¶48 Fredrick H. is no longer valid in light of our decision in Julie
A.B. The court in Fredrick H.
relied on language from B.L.J. v. Polk County Dep't of Soc. Servs., 163
Wis. 2d 90, 470 N.W.2d 914 (1991), which described the unfitness
phase of a TPR proceeding as encompassing an intermediate determination by the
circuit court regarding whether the degree of parental unfitness was sufficient
to warrant termination of parental rights.
Frederick H., 246 Wis. 2d 215, ¶14 (quoting B.L.J., 163
Wis. 2d at 104). The court in Frederick
H. held that mitigating evidence regarding parental efforts to regain
visitation was relevant to this discretionary determination regarding the
degree of parental unfitness. Id.,
¶¶15-17. However, in Julie A.B.,
we expressly withdrew the language from B.L.J. that imposed this
intermediate degree-of-unfitness determination. Julie A.B., 255 Wis. 2d 17, ¶¶36-37. Frederick H. is thus inconsistent
with Julie A.B., and we therefore overrule it.
B. Continuance to Consult on Substitution of Judge
¶49 Kelley also contends she is entitled to a new hearing because the
circuit court failed to inform her, at the initial hearing, that she had a
right under Wis. Stat. § 48.422(5) to a continuance to consult with
counsel regarding substitution of judge.
Kelley relies on Burnett County Dep't of Soc. Servs. v. Kimberly M.W.,
181 Wis. 2d 887, 892, 512 N.W.2d 227 (Ct. App. 1994), which in turn relied on
language in M.W. and I.W., 116 Wis. 2d at 441, which appears to
impose such a duty on the circuit courts.
¶50 Parties to TPR proceedings may request a continuance of the initial
hearing to consult with counsel about judicial substitution. Wis. Stat. § 48.422(5). However, the circuit court does not have an
affirmative duty to advise parties of this right. Wis. Stat. § 48.422(1).
¶51 As is pertinent here, Wis. Stat. § 48.422 provides:
Hearing on the petition. (1) . . . At the hearing on the petition to
terminate parental rights the court shall determine whether any party wishes to
contest the petition and inform the parties of their rights under sub. (4) and
s. 48.423 [relating to persons alleging their paternity].
. . . .
(4) Any party
who is necessary to the proceeding or whose rights may be affected by an order
terminating parental rights shall be granted a jury trial upon request if the
request is made before the end of the initial hearing on the petition.
(5) Any
nonpetitioning party, including the child, shall be granted a continuance of
the hearing for the purpose of consulting with an attorney on the request for a
jury trial or concerning a request for the substitution of a judge.
Wis. Stat. § 48.422. In M.W. and I.W., this court broadly
construed Wis. Stat. § 48.422 as follows:
The statutory direction is unequivocal: A parent has the right to representation in
court unless there is a waiver; and, in any case, the trial court has the duty
to make a full explication of the statutory rights —— the right to
representation, the right to a continuance, the right to request a jury trial,
and the right to request a substitution of judge.
M.W. and I.W., 116
Wis. 2d at 441.
¶52 M.W. and I.W. was mistaken that the statute is unequivocal
in this regard. In fact, as Court of
Appeals Judge Lundsten noted in his concurrence in this case, the statute
unequivocally does not direct the circuit court to inform parties of the
right to a continuance to consult with counsel regarding judicial
substitution. Kelley H., 263
Wis. 2d 241, ¶48. M.W. and
I.W. did not purport to impose such a duty as a constitutional requirement
or as a matter of judicial administration.
We withdraw this language from M.W. and I.W.; the circuit court
does not have a statutory duty to inform a party in a TPR case of the right to
a continuance to consult with counsel about judicial substitution. The circuit court's failure to do so here
was not error.
¶53 Accordingly, for the foregoing reasons, we conclude that partial
summary judgment may be granted in the unfitness phase of a TPR case where the
moving party establishes that there is no genuine issue of material fact
regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, and,
taking into consideration the heightened burden of proof specified in Wis.
Stat. § 48.31(1) and required by due process, the moving party is entitled to
judgment as a matter of law. We further
conclude that Wis. Stat. § 48.422(1) does not impose upon the circuit court a
duty to advise parties of the right under Wis. Stat. § 48.422(5) to a
continuance to consult with counsel regarding judicial substitution.
By the Court.—The decision of the court of
appeals is affirmed.
¶63 DAVID T. PROSSER, J. (dissenting). Last term I expressed concern that summary
judgments were eating into the constitutional right of trial by jury in civil
cases. Trinity Evangelical v. Tower
Ins. Co., 2003 WI 46, ¶¶71-86, 261 Wis. 2d 333, 661
N.W.2d 789 (Prosser, J., dissenting).
The decision prompting this concern involved an insurance company that
was accused of acting in bad faith toward its insured. The circuit court granted summary judgment
to the insured, finding that the insurer was liable to the insured as a matter
of law. The court found that every
element of the tort of bad faith was established beyond dispute without the
need for a trial. Thus, the court
denied the insurer the right to a jury's determination of the facts, reserving
for jury determination only the issue of damages. After receiving the court's instructions, the jury awarded the
insured the staggering sum of $3.5 million in punitive damages. This court upheld the award and all the procedures
leading up to it.
¶64 The present case heightens my apprehension because it involves more
than a suit among private parties over money.
It involves a government effort to terminate a mother's rights to her
child. The type of proceeding, the
nature of the parties, and the potential stakes all are different. Once again, however, this court strips a
defendant of the right of trial by jury——this time, a right granted by
statute——by asserting that there is simply no disputed issue of fact for a jury
to decide. As the court sees it,
convening an "expensive and time-consuming" jury of citizens from the
community to assess whether a mother is "unfit," before the judge
decides whether to terminate her parental rights, would serve no purpose. See Majority op., ¶43. In short, a jury trial would be
"pointless." Id.
¶65 The founders of our Nation believed that "trial of fact by
juries rather than by judges was an essential bulwark of civil
liberty." Galloway v. United
States, 319 U.S. 372, 397 (1943) (Black, J., dissenting). Justice Black anticipated the tension in
this case when he observed that either a judge or a jury must decide facts and
"to the extent that we [in the judiciary] take this responsibility, we
lessen the jury function." Id.
at 407. The judicial duty to preserve
the right of trial by jury "may be peculiarly difficult, for here it is
our own power which we must restrain."
Id.
¶66 The majority opinion speaks of the low risk of error in some
judicial fact-finding and the "complete waste of judicial resources"
in the jury trial requested here.
Majority op., ¶¶42-43. But it
fails to recognize that trial by jury is intended to protect civil litigants
from overreaching and abuse by officials in all three branches of government,
not just the judiciary. The American
jury represents a classic check on government power. Hence, "the jury is not controlling merely the immediate
case before it, but the host of cases not before it which are destined to be
disposed of by the pre-trial process. . . . [T]he jury,
like the visible cap of an iceberg, exposes but a fraction of its true
volume." Harry Kalven, Jr. &
Hans Zeisel, The American Jury, 31-32 (1966).
¶67 The decision in this case undermines a basic right crafted by the
legislature. In curtailing this right,
the court will impact the dynamics of termination proceedings in ways that are
not yet fully apparent. It may impair the legitimate interests of
parents and complicate the operation of the termination law. Because I believe the court is making a
serious mistake, I respectfully dissent.
I
¶68 Chapter 48——the Children's Code——addresses a wide range of matters
affecting children. In the subchapter
on procedure, Wis. Stat. § 48.31 establishes fact-finding hearings (1) to
determine if the allegations in a petition for children alleged to be in need
of protection or services under Wis. Stat. § 48.13 are proved by
clear and convincing evidence; (2) to determine if the allegations in a
petition for unborn children alleged to be in need of protection or services
under Wis. Stat. § 48.133 are proved by clear and convincing
evidence; and (3) to determine if the allegations in a petition to terminate
parental rights are proved by clear and convincing evidence.
¶69 Subsection (2) of § 48.31 then reads:
(2) The
hearing shall be to the court unless the child, the child's parent,
guardian, or legal custodian, the unborn child by the unborn child's guardian
ad litem, or the expectant mother of the unborn child exercises the right to
a jury trial by demanding a jury trial at any time before or during the
plea hearing.
Wis. Stat. § 48.31(2)
(emphasis added).
¶70 This provision permits either a parent or a child or a child's
representative to demand a jury trial in a termination proceeding. The legislature's intent in § 48.31(2)
is reinforced in Wis. Stat. § 48.422(4), which reads: "Any
party who is necessary to the proceeding or whose rights may be affected by an
order terminating parental rights shall be granted a jury trial upon request
if the request is made before the end of the initial hearing on the
petition."
Wis. Stat. § 48.422(4) (emphasis added). The circuit court is required to
inform the parties of this right.
Wis. Stat. § 48.422(1).
¶71 Subsection (2) of § 48.31 continues:
If a jury trial is demanded in a proceeding under s.
48.13 or 48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42
[petition for termination of parental rights], the jury shall consist of 12
persons unless the parties agree to a lesser number.
¶72 This language makes plain that while the legislature considers each
of the three fact-finding hearings significant, it considers the fact-finding
hearing on a termination petition to be more significant than a hearing under
§ 48.13 because the jury in the termination hearing is a jury of 12
persons, not 6 persons.
¶73 Subsection (2) adds that "At the conclusion of the hearing,
the court or jury shall make a determination of the
facts . . . ."
Subsection (4) of § 48.31 thereafter provides:
The court or jury shall make
findings of fact and the court shall make conclusions of law relating to the
allegations of a petition filed under s. 48.13, 48.133 or 48.42, except that
the court shall make findings of fact relating to whether the child or unborn
child is in need of protection or services which can be ordered by the court.
The jury's fact-finding duties
are also alluded to in Wis. Stat. §§ 48.415 (introduction) and
48.424(3) and (4).
¶74 Subsection (4) of § 48.31 and subsection (3) of § 48.424
outline situations in which the court plays an exclusive role in termination
proceedings. Judicial authority to deny
a party a jury trial because the court believes that grounds exist for a
partial summary judgment is not mentioned in these statutes.
¶75 The legislature's intent in these statutes is not ambiguous. The legislature intends to afford affected
parties in termination cases the same right to a jury trial as defendants in
criminal cases. The fact that parents
may demand a jury trial on the issue of their "fitness" does not mean
that they will always exercise this right.
It means that officials seeking termination are likely to be more
cautious in their approach and more thorough in making the case than they would
be if they didn't have to deal with people who are not part of the courthouse
establishment.
II
¶76 Jury trials in Wisconsin child custody cases date back more than a
century. See Chapter 90, Laws of
1901 ("An act to regulate the treatment and control of dependent,
neglected and delinquent children in counties having over one hundred and fifty
thousand population."). After
defining "dependent child," "neglected child," and
"delinquent child" in Section 1, the legislature asserted in Section
2 that:
In all trials under this act of any dependent or
delinquent child, any person interested therein may demand a jury of six, or
the judge of his own motion may order a jury of the same number to try the
case. Such jury when demanded or
ordered shall be obtained in the manner provided in chapter 194 of the
Wisconsin statutes of 1898 and the provisions of sections 4750 to 4758, both
inclusive, of said chapter 194, shall be applicable to all such trials.
§ 2, ch. 90, Laws of 1901.
¶77 This early provision evolved over time. Since 1901, however, our legislature has always conferred a right
to demand trial by jury in certain cases involving the custody and control of
children. Historically, this right
predates the appearance of summary judgment in Wisconsin law.
¶78 The first summary judgment rule was adopted by Supreme Court Order
in 1931. See In the Matter of
the Promulgation of Rules Relating to Pleading, Practice and Procedure in the
Courts of the State of Wisconsin, 204 Wis. viii, creating
Wis. Stat. § 270.635.
This rule was quite limited in scope.
Some 45 years later, on January 1, 1976, this court replaced a modified
§ 270.635 with Wis. Stat. § 802.08, as part of the
Wisconsin Rules of Civil Procedure. 67
Wis. 2d 585, 630-31 (1975).
¶79 As part of the same rule-making process, the court adopted
Wis. Stat. § 801.01(2), which read:
(2)
Scope. The sections in this title
govern procedure and practice in circuit and county courts of the state of
Wisconsin in all civil actions and special proceedings whether cognizable as
cases at law, in equity or of statutory origin except where different
procedure is prescribed by statute or rule. They shall be construed to secure the just, speedy and
inexpensive determination of every action.
67 Wis. 2d at 588
(emphasis added). This latter provision
is the court-made rule the majority relies on to apply summary judgment to
§ 48.31 fact-finding proceedings.
Essentially, the majority is saying that the civil procedure code,
including summary judgment, applies to all civil actions except those for which
a different procedure is prescribed by statute. A proceeding to establish a ground for termination in a TPR case
is a civil action, and it does not prescribe an exception for summary
judgment. Therefore, summary judgment
applies in a proceeding to establish a ground for termination of parental
rights.
¶80 There are several difficulties with this conclusion. First, because
Wis. Stat. §§ 48.31(2) and 48.422(4) establish a right to demand
a trial by jury, they arguably prescribe, "by statute," "a
different procedure" from summary judgment.
¶81 It must be acknowledged that Wis. Stat. § 805.01(2)
also uses the word "demand"——any "party entitled to a trial by
jury . . . may demand a trial in the mode to which
entitled"——and this "demand" language has not prevented summary
judgment in the typical civil case.
However, the language in § 805.01 has a history very different from
the language in Wis. Stat. § 48.31. The language in § 805.01 was lifted from Rule 38 of the
Federal Rules of Civil Procedure, which was drafted long after the
"demand" language in § 48.31(2). There is something quite disconcerting about borrowing the
interpretation of one statute to nullify a longstanding right in another
statute.
¶82 Second, the Judicial Council Committee's Note to
Wis. Stat. § 801.01, prepared shortly before the rule's
promulgation, offers an interpretation of the rule that is different from the
interpretation provided by the majority.
The Note explains that the statutes contained in chapters 801 through
807 are general in their application to civil actions and govern all matters of
practice and procedure "except to the extent that contrary provisions
otherwise provide." Wisconsin
Rules of Civil Procedure, 67 Wis. 2d 589 (1976). Thus, the Note explains:
they are subject to the special rules applicable to
actions affecting marriage under ch. 247, small claims actions under ch. 299,
actions to recover forfeitures under ch. 288, illegitimacy proceedings under
ch. 52, probate proceedings under chs. 851-879, provisional and extraordinary
remedies under chs. 264-268 and any other special rule governing particular
kinds of actions or special proceedings.
Id. (emphasis
added).
¶83 The exceptions cited in the Judicial Council Committee's Note
should be compared to the majority's analysis in ¶35, n.3. The chapter numbers have changed over the
past quarter century but there is considerable overlap in the subject
areas. Consequently, the majority's
analysis appears to conflict with the Judicial Council Committee's Note.
¶84 Chapter 48 proceedings are not specifically mentioned in the
Judicial Council Committee's Note.
However, fact-finding proceedings under Chapter 48——which at the time of
adoption of the Wisconsin Rules of Civil Procedure included proceedings to
determine "delinquency"——obviously have special rules. Juvenile delinquency proceedings and
termination proceedings are "special proceedings." They are not the same as general civil
actions and thus implicate "any other special rule governing particular
kinds of actions." Wisconsin
Rules of Civil Procedure, 67 Wis. 2d 589.
¶85 Finally, this court adopted Wis. Stat. §§ 801.01
(scope of chs. 801-847) and 802.08 (summary judgment) "pursuant to its
inherent authority and sec. 251.18, Stats." Preface to Wisconsin Rules of Civil Procedure, 67
Wis. 2d 585. Wisconsin Stat.
§ 251.18 in 1975 and Wis. Stat. § 751.12 now are the
statutes that have authorized this court to promulgate rules of pleading,
practice, and procedure. They both
contain the admonition that court-made rules "shall not abridge,
enlarge, or modify the substantive rights of any litigant." This raises the question whether a
legislatively conferred right of trial by jury is a substantive right. If it is, then this court may not abridge
that right by rule. If it is not, then
this court has been given the awesome power to abolish the right of trial by
jury by rule in any situation in which the right is not protected by the
state or federal constitution.
¶86 It would be ill advised for this court to embrace the premise that
its court-made rule wipes out an unconditional legislatively established right
of trial by jury in termination cases whenever a judge finds that there is no
issue of material fact concerning an alleged statutory ground for
termination. Arguably, the legislature
authorized a jury to determine whether a statutory ground for unfitness exists
so that no judge could unilaterally terminate a parent's rights.
III
¶87 The majority opinion minimizes my concern that the statutory right
of jury trial in termination cases has been impaired by emphasizing that
summary judgments are available only "where the requirements of the
summary judgment statute and the applicable legal standards in
Wis. Stat. §§ 48.415 and 48.31 have been met." Majority op., ¶5. "Accordingly, partial summary judgment may be granted in the
unfitness phase of a TPR case where the moving party establishes that there is
no genuine issue as to any material fact regarding the asserted grounds for
unfitness under Wis. Stat. § 48.415, and . . . the
moving party is entitled to judgment as a mater of law." Id., ¶6.
¶88 The majority explains that there are now 12 grounds of unfitness in
§ 48.415 for the termination of parental rights, "and several of
these may be proved by official documentary evidence." Id., ¶3. The majority cites the following:
a. 48.415(1m)——relinquishment;
b. 48.415(4)——continuing denial of periods of
physical placement or visitation;
c. 48.415(8)——homicide or solicitation to commit
homicide of parent;
d. 48.415(9)——parenthood as a result of sexual
assault;
e. 48.415(9m)——commission of serious felony
against one of the person's children;
f. 48.415(10)——prior involuntary termination of
parental rights to another child.
Id., ¶37.
¶89 Significantly, the court has listed half the grounds of unfitness
as being subject to potential summary judgment because they may be proved by
official documentary evidence. However,
in some cases, child abuse under § 48.415(5) and incestuous parenthood
under § 48.415(7) may also be proved by documentary evidence. Therefore, at least two-thirds of the
grounds of unfitness may be determined without a jury trial. In fact, the majority implies that summary
judgment may be granted, where appropriate, on a case-by-case basis,
irrespective of the grounds. Majority
op., ¶37, n.4. It overrules Walworth
County Department of Human Services v. Elizabeth W., 189
Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), a case in which the
court of appeals disapproved summary judgment for the grounds of abandonment
and continuing need of protection or services, neither of which is a candidate
for summary judgment on the majority's list.
¶90 One consequence of this is that the party initially petitioning for
termination of parental rights——sometimes the child's other parent——may
deliberately choose a ground of unfitness that will maximize the chances of
avoiding a jury trial.
¶91 This is not the only problem the court has created. A termination of parental rights proceeding
is frequently preceded by a CHIPS proceeding pursuant to
Wis. Stat. § 48.13 as well as a disposition hearing under
Wis. Stat. § 48.335. At
the CHIPS fact-finding hearing, the parent is entitled to a jury trial.
Wis. Stat. § 48.243(1)(g). Often, however, the parent does not contest the child's need for
protection or services because the parent is overwhelmed with personal problems
and needs time to recover. Now,
however, because failure to contest a petition at the CHIPS fact-finding
hearing may eliminate the chance for a parent ever to present testimonial
evidence on the issue of the parent's unfitness, there will be an incentive for
the parent to contest the initial CHIPS proceeding. In any event, the court may employ summary judgment at the CHIPS
fact-finding hearing. N.Q. v.
Milwaukee County Dep't of Social Servs., 162 Wis. 2d 607, 611-12,
470 N.W.2d 1 (1991).
¶92 At the CHIPS disposition hearing, there is no requirement of proof
by clear and convincing evidence. S.D.S.
and K.A.S. v. Rock County Dep't of Soc. Services, 152
Wis. 2d 345, 356-57, 448 N.W.2d 282 (Ct. App. 1989). Rather, because CHIPS dispositional hearings
"emphasize the child's future well-being and family values, not
culpability," the greater weight of the credible evidence standard
applies. Id. at 357.
¶93 What this means is that the predicate fact-finding leading up to an
involuntary termination proceeding may be based upon a waiver, or summary
judgment, or a reduced burden of proof.
¶94 In this case, a judge in Brown County conducted a CHIPS
fact-finding hearing and a CHIPS dispositional hearing. The dispositional hearing had a reduced
burden of proof. The child's father
later petitioned in Grant County for a termination of the mother's rights on
the ground set out in § 48.415(4) (continuing denial of periods of physical
placement or visitation). Subsection
(4) reads:
(4) Continuing Denial of Periods of Physical Placement or
Visitation. Continuing denial of
periods of physical placement or visitation, which shall be established by
proving all of the following:
(a) That the parent has been denied periods of physical placement by
court order in an action affecting the family or has been denied visitation
under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or
938.365 containing the notice required by s. 48.356(2) or 938.356(2).
(b) That at least one year has elapsed since the order denying periods
of physical placement or visitation was issued and the court has not
subsequently modified its order so as to permit periods of physical placement
or visitation.
Wis. Stat. § 48.415(4)
(emphasis added). Wisconsin Stat.
§§ 48.345, 48.363, and 48.365 involve dispositional hearings with a
reduced burden of proof.
¶95 In this case, Kelley H. was denied physical placement and denied
visitation of her son by court order.
At least one year elapsed from the date the order was issued and the
court had not modified the order so as to permit periods of physical placement
or visitation.
¶96 The Grant County Circuit Court would not permit Kelley H. to
explain, at the fact-finding hearing on unfitness, why at least one year had
elapsed since the order denying periods of physical placement or visitation was
issued and why the court had not subsequently modified its order so as to
permit periods of physical placement or visitation. That evidence could not come in, the court said, until the
dispositional hearing. See
Majority op., ¶¶15-16. This court
affirms that ruling. As a practical
matter, this court is saying that there are no facts——including a parent's
serious illness, temporary incarceration, or involuntary absence from the
jurisdiction, or a judge's illness or death——that will ever legally excuse a
failure to modify the placement/visitation order within a year after it is
issued. This strikes me as going well
beyond what the court decided in Sheboygan County DHHS v. Julie A.B.,
2002 WI 95, ¶¶36-37, 255 Wis. 2d 170, 648 N.W.2d 402.
¶97 The legislature has established multiple legal grounds of parental
unfitness that may serve as the foundation for a termination of parental
rights.
Wis. Stat. § 48.415(1)-(10). I agree that there are no "degrees of unfitness" under
this statutory scheme. Majority op.,
¶25. On the other hand, there may be
"defenses" or "explanations" for some of these
grounds that ought to be raised by the defendant for consideration by the
fact-finder making the determination of unfitness, as opposed to the court
determining the best interests of the child; for when the court considers the
best interests of the child, the court's decision revolves around the child,
not the parent.
¶98 In my view, depriving the fact-finder, especially a jury, of the
full story before the fact-finder determines that grounds of unfitness exist,
is not what the legislature intended.
Depriving a parent of the right to the jury trial granted by statute is
even worse. The right of trial by jury
should not be granted by judges on a case-by-case basis, because the
legislature conferred a blanket right. See
Majority op., ¶37, n.4.
IV
¶99 As the majority correctly observes, few judicial decisions are as
consequential as a termination of parental rights. Majority op., ¶21. A
termination judgment severs permanently "the parent's interest in the
companionship, care, custody, and management of his or her child," T.M.F.
v. Children's Service Society, 112 Wis. 2d 180, 184, 332
N.W.2d 293 (1983), who is usually the parent's own flesh and blood. It is thus one of "the most severe
forms of state action," M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996)
(citing Santosky v. Kramer, 445 U.S. 745, 759 (1982)), invoking the
outer reaches of governmental power.
¶100 The Wisconsin legislature has recognized the vital stakes in a
termination decision and established a balanced regimen to assure fairness to
all concerned parties. Courts should
resist the temptation to try to improve the process by modifying either the
substance or procedures of the law. In
doing so, they may inadvertently shortchange interests that the legislature
sought to protect and unravel the entire statutory scheme. I cannot agree that the majority has
improved the process established by the legislature and thus, I respectfully
dissent.