REVIEW of a decision of the Court of Appeals. Reversed and remanded.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of
an unpublished court of appeals decision
summarily affirming the dispositional order of the Milwaukee County Circuit
Court, Judge Thomas R. Cooper, terminating Bobby G.'s parental rights to his
biological son Marquette. Based on Bobby
G.'s admissions and answers to interrogatories, the circuit court granted the
State partial summary judgment at the first step of the termination of parental
rights proceedings, the fact-finding phase relating to the grounds for
termination. The circuit court ruled that Bobby G. had
failed to assume parental responsibility for Marquette under Wis. Stat.
§ 48.415(6) (2003-04)
and declared Bobby G. unfit as a parent.
At the second step of the termination of parental rights proceedings,
the dispositional phase,
after hearing testimony, including from Bobby G., the circuit court determined
that it was in Marquette's best interests to terminate Bobby G.'s parental
rights.
¶2 Bobby G.'s appellate counsel filed a no-merit report in the court
of appeals pursuant to Wis. Stat. §§ 809.107(5m) and 809.32(1). The court of appeals, upon review of the
no-merit report and the record, adopted the no-merit report and affirmed the
order of the circuit court. Bobby G.
sought review, and his new pro bono counsel challenges the termination of
parental rights before this court.
¶3 Bobby G. primarily raises a constitutional question for review,
asking this court to decide that it is unconstitutional to terminate a father's
parental rights based on a failure to assume parental responsibility under Wis.
Stat. § 48.415(6) when the father did not know of the child's existence
until after the petition for termination of parental rights was filed. Bobby G. argues that an unmarried biological
father has a constitutionally protected interest in the opportunity to develop
a relationship with his child. In the
discussion of the constitutional issues, the parties raise, both implicitly and
explicitly, the issue of the proper interpretation of § 48.415(6). Because we can resolve the case on statutory
grounds, we decline to address the constitutional issues presented by Bobby
G. Were the court or any member thereof
to interpret the statute as not requiring that an unmarried biological father
have the opportunity to develop a relationship with his child after he learns
of the existence of the child, the constitutional issue the parties address at
length would have to be decided.
¶4 In examining whether grounds for termination of parental rights
existed in the instant case under Wis. Stat. § 48.415(6), the circuit
court did not consider Bobby G.'s efforts to assume parental responsibility for
Marquette after he learned he was the biological father but before the grounds
for termination were adjudicated.
Rather, the circuit court concluded as a matter of law that it need not
consider at the grounds phase Bobby G.'s efforts undertaken after the petition
for termination was filed, even though Bobby G. did not learn he was
Marquette's father until after the petition was filed. The circuit court declared that it would
instead consider Bobby G.'s efforts at the dispositional phase. At the dispositional phase, the circuit court
held that Bobby G.'s attempts to assume parental responsibility were irrelevant
before reaffirming that the grounds for termination had been established by
clear and convincing evidence.
¶5 For the reasons set forth, we hold that in determining whether a
party seeking termination of parental rights has proven by clear and convincing
evidence that a biological father has failed to assume parental responsibility
under Wis. Stat. § 48.415(6), a circuit court must consider the biological
father's efforts undertaken after he discovers that he is the father but before
the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case
proceeded under an erroneous interpretation of the statute. Accordingly, the facts were not fully
developed; to the extent facts were developed, these facts and their import are
in dispute. The parties disputed whether
Bobby G. assumed parental responsibility after he learned of his paternity but
before adjudication of the grounds for termination. Accordingly, with facts in dispute, the
circuit court erred as a matter of law in granting partial summary judgment. Moreover, Bobby G. requested a jury trial,
which the circuit court denied because it erroneously found no material facts
or inferences therefrom in dispute.
Neither the circuit court nor this court can deprive Bobby G. of a jury
trial by deciding the factual dispute.
¶6 For the reasons set forth, we reverse the decision of the court of
appeals affirming the summary judgment.
We remand the cause to the circuit court for a fact-finding hearing in
accordance with Wis. Stat. § 48.424 to determine whether grounds exist for
termination of Bobby G.'s parental rights to Marquette and, if necessary, for a
dispositional hearing in accordance with § 48.427 on whether Bobby G.'s
parental rights should be terminated in the best interests of Marquette.
I
¶7 Although we have discussed this case as presenting a question of
law, we cannot forget that this case affects a little boy whose fate still
hangs in the balance. At the heart of
this case is a child named Marquette, who was born on August 31, 2003, to
Denise W. but has never lived with his mother.
Since discharge from the hospital after birth, Marquette has lived
exclusively with his foster parents, Dr. Jeffrey and Karen, who are committed
to adopting Marquette and have given Marquette extraordinary care. Marquette was born prematurely and has faced
serious health problems that have required significant medical attention.
¶8 A CHIPS
case was initiated on Marquette's behalf by the Bureau of Milwaukee Child
Welfare in September 2003. Denise W. was
not married at the time of Marquette's conception and birth, so the State
attempted to identify Marquette's biological father. Denise W. initially named Earley S. as
Marquette's biological father. On
October 3, 2003, the circuit court ordered a genetic test for Earley S., which
on November 11, 2003, excluded Earley S. as Marquette's biological father. The following day, Denise W. identified John
J., Sr., as another possible father for Marquette. In February 2004, however, John J., Sr., was
also excluded as Marquette's biological father.
In March 2004, Denise W. named "Bobby" as a potential
father. Denise W. did not have a last
name or address for "Bobby."
¶9 On April 13, 2004, the Milwaukee County Circuit Court, Judge Kevin
Martens, found Marquette to be a child in need of protection and services
pursuant to Wis. Stat. § 48.13.
¶10 On June 16, 2004, the State filed a petition to terminate Denise
W.'s parental rights to Marquette, as well as the parental rights of
Marquette's biological father. The petition for termination of parental
rights named "'Bobby' and any unknown father" as Marquette's
biological father. The Bureau of
Milwaukee Child Welfare began efforts to identify and locate "Bobby."
¶11 By August 24, 2004, the Bureau of Milwaukee Child Welfare had identified
"Bobby" as Bobby G. and served him with a summons for the termination
of parental rights proceedings on August 27, 2004. Bobby G. learned about Denise W.'s child only
when he was served with the summons.
¶12 On November 24, 2004, Bobby G. was adjudicated Marquette's father
as a result of court-ordered genetic testing.
The termination of parental rights case was then adjourned to January
11, 2005, to allow Bobby G. to obtain counsel.
¶13 On January 11, 2005, Bobby G. made a formal appearance in the
termination proceedings, contesting the termination and demanding a jury
trial. Throughout the termination of
parental rights proceedings, Bobby G. emphasized that he wished to exercise his
right to a jury trial on the issue of grounds for termination.
¶14 As part of the termination of parental rights proceeding, the State
submitted the following eleven requests for admissions to Bobby G., and Bobby
G. answered "yes" to each:
Admission #1:
Admit that Bobby G[] has never assumed parental responsibility for
Marquette S[].
Admission #2:
Admit that Bobby G[] has never established a substantial parental
relationship with Marquette S[].
Admission #3:
Admit that Bobby G[] has never exercised responsibility for the daily
supervision of Marquette S[].
Admission #4:
Admit that Bobby G[] has never exercised responsibility for the
education of Marquette S[].
Admission #5:
Admit that Bobby G[] went six months or longer without having face to
face contact with Marquette S[].
Admission #6:
Admit that Bobby G[] was unaware that he was the father of Marquette S[]
until after June 16, 2004.
Admission #7:
Admit that Bobby G[] was not involved in assisting in, or providing for,
the pre-natal care of Marquette S[].
Admission #8:
Admit that Bobby G[] went six months or longer without having any
communication with Marquette S[].
Admission #9:
Admit that Bobby G[] has never paid child support for Marquette S[].
Admission #10:
Admit that Bobby G[] has never met Marquette S[].
Admission #11:
Admit that Bobby G[] was unaware that he was the father of Marquette S[]
until he was informed of DNA test results indicating his paternity.
¶15 The State also submitted 24 interrogatories along with the requests
for admissions. The interrogatories
probed the nature of Bobby G.'s relationship with Marquette, including what
efforts Bobby G. had made to provide for Marquette and for Denise W. The interrogatories requested information
about Bobby G.'s conduct through April 20, 2005, that is, including a period of
time after the petition for termination of parental rights had been filed.
¶16 Many of Bobby G.'s responses to the interrogatories support the
admissions that Bobby G. took no steps to assume parental responsibility before
he learned of the existence of his son. Several of the responses to the
interrogatories demonstrated, however, that after he learned of his son's
existence Bobby G. made repeated efforts to communicate with his son and was
interested in developing a parental relationship. According to the interrogatories, after he
learned that he was Marquette's father, Bobby G. communicated with the
caseworkers assigned to Marquette's case, inquiring how he could establish
communication with his son. Thus the
circuit court was aware at the grounds phase of the termination proceedings
that Bobby G. was attempting to reach out to his son.
¶17 On June 27, 2005, the State filed a notice of motion and motion for
partial summary judgment. Bobby G.
argued that summary judgment was inappropriate because there were material
facts in dispute and he wanted a jury to decide them.
¶18 On September 16, 2005, more than a year after the petition for
termination was filed, the circuit court heard argument on the State's motion
for partial summary judgment. The State
argued that given Bobby G.'s admissions that he did not know about Marquette
prior to the filing of the petition for termination of parental rights and had
not developed a substantial relationship with Marquette prior to the filing of
the petition for termination of parental rights, the State was entitled to
summary judgment on the issue of whether grounds existed under Wis. Stat.
§ 48.415(6) to terminate Bobby G.'s parental rights. Bobby G. opposed summary judgment, but he did
not file a supporting affidavit.
Bobby G. argued that it was a
"factual case" for a jury.
¶19 At the end of the hearing on the motion for summary judgment, the
circuit court granted the State's motion, declaring that the ground for
termination was proved and that Bobby G. was unfit. The circuit court's sole basis for its ruling
was that Bobby G. had failed to assume his parental responsibilities before he
even knew of the existence of his biological child. The circuit court stated:
And, quite frankly, there are no factual issues as it
relates to a failure to assume. He
didn't know he was the father; didn't take part. There is [sic] no other facts. There are no facts in dispute for the jury to
consider and I am going to grant the State's motion for summary judgment on
failure to assume as it relates to the father for Marquette.
¶20 The circuit court expressed uneasiness with terminating Bobby G.'s
parental rights on a failure to assume parental responsibility during the time
when he did not know of the existence of his son, describing the unfairness of
the situation as follows:
I'd be less than honest if I didn't say that these
kinds of fact situations described here as it relates to your client [Bobby G.]
leaves a very bad taste in my mouth.
That is a euphemism. But what it
is is, there is a kind of an unfairness; there is something wrong about
somebody who didn't know he was the father, finds out he is the father, wants
to do the right thing by his biological child and is prohibited from doing
so. That is the unfairness kind of, and
that is the thing that leaves the bad taste.
¶21 The circuit court also expressed concerns, however, about the best
interests of the child, stating as follows:
[The] [f]lip side is maybe this child is just the
bi-product [sic] of an act of sexual intercourse and that is all that his
involvement was. And then we have to
deal with the best interests of the child.
What is best for this little child, because that is really what the best
interest phase is about. It's about the
child is on equal footing with the parent as to what is best for that little
child. And maybe I think the caselaw
even says it is probably in a stronger position than the parent.
My concerns in terms of the fairness can be taken care
of in this second phase, and that is why I asked the district attorney for
their position on that. I believe the
concerns your client [Bobby G.] mentions can be properly addressed.
¶22 On October 25, 2006, the circuit court held a dispositional hearing
to determine whether termination of Bobby G.'s parental rights would be in
Marquette's best interests.
¶23 The State presented one witness, Dr. Jeffrey, Marquette's foster
father. Dr. Jeffrey testified about how
he and his wife managed Marquette's special medical and developmental needs,
how Marquette had bonded with and had become attached to the foster family, and
how the foster family was committed to adopting Marquette. Dr. Jeffrey also testified that Denise W. had
dwindling contact with Marquette, that Marquette had little contact with his
biological siblings, and that Bobby G. had never met or spoken with Marquette.
¶24 Bobby G. also testified. He
explained his relationship with Denise W. and described his attempts to remain
in communication with her. According to
Bobby G.'s testimony, Bobby G. and Denise W. met during the summer of 2002 when
they were inmates in the Milwaukee County Jail.
They exchanged letters for about four months while incarcerated. Approximately four weeks after they were
released from jail in December 2002, Bobby G. and Denise W. met and had sexual
intercourse. Bobby G. stated he made
several attempts afterward to see Denise W., but his repeated visits to her
residence proved unfruitful. A neighbor
informed him that Denise W. had moved.
Bobby G. admitted that he did not try to communicate with Denise W.
thereafter.
¶25 Bobby G. testified that he had not known that Denise W. was
pregnant and that he was unaware of Marquette's existence until he was served
with the summons for the termination of parental rights proceedings.
¶26 Bobby G. also explained in detail his efforts to begin a father-son
relationship with Marquette upon learning of Marquette's existence after the
petition to terminate his parental rights to Marquette was filed.
¶27 In addition to testifying about his communications with the Bureau
of Milwaukee Child Welfare, Bobby G. testified that he had enrolled in several
personal development programs at the prison where he was incarcerated,
including drug and alcohol programs, domestic violence programs, and a class on
parenting skills.
¶28 After hearing the testimony and evidence presented at the
dispositional phase, the circuit court concluded that terminating Bobby G.'s
parental rights to Marquette was in Marquette's best interests. Acknowledging that Bobby G. was trying to do
"the right thing" for his biological child, the circuit court
concluded that those efforts came too late.
And the law says if you have sexual intercourse with a
woman, it is logical to presume that that woman would become pregnant.
Now, as a practical matter you didn't know [that
Marquette existed] and all of those things, but the Supreme Court has stated a
law that your obligation towards the child started at that point, and the fact
that you didn't know and all those things as a practical matter is true but in
a legal sense it is not a defense.
So your rights were terminated for failure to assume,
and that's because you had sex with this lady and she became pregnant and she
didn't know you were the father. She
named other people ahead of time, but you had a legal obligation from that
point in time.
¶29 The circuit court did not consider relevant the evidence adduced
concerning Bobby G.'s efforts to establish a substantial parental relationship
with Marquette. The circuit court announced:
So a great deal of the testimony that we took as it's
[sic] relates to you today really isn't particularly relevant.
¶30 The circuit court ordered termination of Bobby G.'s parental rights
to Marquette on November 4, 2005.
¶31 Bobby G. filed a notice of appeal, and on March 9, 2006, his
attorney submitted a no-merit report to the court of appeals. Appellate counsel identified two possible
challenges for an appeal in the no-merit report and explained why neither had
arguable merit.
¶32 First, appellate counsel examined whether the circuit court had
erred in granting the State's motion for partial summary judgment. Because Bobby G. admitted he had no
substantial relationship with Marquette and had taken no efforts to care for
Marquette before the termination proceedings began, and because Bobby G. did
not file any affidavits in opposition to the State's motion for summary
judgment attesting that he did express concern for the child either before or
after birth, appellate counsel concluded that summary judgment was proper.
¶33 Second, appellate counsel examined whether the circuit court had
erred in exercising its discretion at the dispositional stage by terminating
Bobby G.'s parental rights. Because the
circuit court applied the proper standard of law, considered the relevant
facts, and used a rational process, appellate counsel concluded that the
circuit court properly exercised its discretion.
¶34 The court of appeals accepted the no-merit report by order dated
April 25, 2006. The court of appeals
explained its decision as follows:
The no-merit report thoughtfully and expertly analyze
[sic] these issues. Accordingly, this
court adopts the no-merit brief as our own statement of the case, and
independently conclude [sic] that the two issues identified in the no-merit
report lack all arguable merit. Upon our
review of the record, we further conclude that it presents no additional issues
of arguable merit. Accordingly, we
affirm the circuit court's dispositional
order . . . (internal citations omitted).
¶35 Bobby G. filed a letter to this court on May 23, 2006, which this
court, the State, and the guardian ad litem treated as a petition for review.
II
¶36 This court reviews a circuit court's grant of summary judgment
independently, applying the same methodology as the circuit court but
benefiting from the circuit court's analysis.
Summary judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law. Wis. Stat. § 802.08(2).
¶37 Although relying primarily on a constitutional rather than a
statutory analysis, Bobby G. asserts that summary judgment was improper in the
instant case because the circuit court failed to consider the evidence that
Bobby G. made attempts to establish a relationship after the filing of the
termination petition and after he learned of Marquette's existence.
¶38 In contrast, the State contends that under Wis. Stat.
§ 48.415(6), Bobby G.'s conduct after the petition for termination was
filed is irrelevant and that the statute so interpreted is constitutional. The State claims it has established under
Wis. Stat. § 48.415(6) Bobby G.'s "failure to assume parental
responsibility" by the uncontested, admitted facts in the admissions and
interrogatories that Bobby G. had no involvement with Marquette from conception
through the filing of the petition for termination of parental rights.
¶39 Partial summary judgment at the grounds phase of a termination of
parental rights proceedings is permitted,
although the court has also acknowledged that not all termination of parental
rights cases are suited for partial summary judgment. The court has explained that "[t]he
grounds for unfitness most likely to form the basis of a successful motion for
partial summary judgment in a [termination of parental rights] 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."
¶40 The court has cautioned that "[i]n many [termination of
parental rights] 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-ŕ-vis the child." The court has further explained that
"summary judgment will ordinarily be inappropriate in [termination of
parental rights] cases premised on these fact-intensive grounds for parental
unfitness." The court has identified Wis. Stat.
§ 48.415(6) as a fact-intensive ground probably not suited for partial
summary judgment, but the court has not held that this ground could never form
the basis for partial summary judgment.
The court has instead stressed that "[t]he propriety of summary
judgment is determined case-by-case."
¶41 The propriety of summary judgment in the present case depends on
the proper interpretation of Wis. Stat. § 48.415(6) and whether any facts
or inferences therefrom are in dispute.
If § 48.415(6) is interpreted to mean, as the circuit court
declared, that the State need prove only Bobby G.'s failure to assume parental
responsibility between the time of conception and the filing of the petition
for termination of parental rights, regardless of whether Bobby G. knew or had
reason to believe that his child existed, then the facts may be viewed as
undisputed and summary judgment lies.
If, however, under § 48.415(6) a circuit court must weigh a
father's efforts to establish a parental relationship with a child after he
learns of his paternity but before the grounds for termination are adjudicated,
then the circuit court erred as a matter of law in its interpretation of the
statute, in refusing to consider evidence of Bobby G.'s efforts, in granting
summary judgment, and in failing to accord Bobby G. the jury trial he
requested.
¶42 We must therefore decide the proper interpretation of Wis. Stat.
§ 48.415(6). Statutory
interpretation ordinarily is a question of law that this court decides
independently of the circuit court and court of appeals but benefiting from the
analyses of these courts.
III
¶43 We begin our statutory interpretation with the text of Wis. Stat.
§ 48.415(6).
¶44 Wisconsin Stat. § 48.415(6) provides as follows:
(6) Failure to assume parental responsibility. (a) Failure to assume parental
responsibility, which shall be established by proving that the parent or the
person or persons who may be the parent of the child have never had a
substantial parental relationship with the child.
(b) In this subsection, "substantial parental
relationship" means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection and care of the
child. In evaluating whether the person
has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has ever
expressed concern for or interest in the support, care or well-being of the
child, whether the person has neglected or refused to provide care or
support for the child and whether, with respect to a person who is or may be
the father of the child, the person has ever expressed concern for or
interest in the support, care or well-being of the mother during her pregnancy
(emphasis added).
¶45 Wisconsin Stat. § 48.415(6)(a) provides that failure to assume
parental responsibility is a ground for termination of parental rights. Failure to assume parental responsibility is
established by proof that the parent has never had a substantial parental
relationship with the child. The statute
defines "substantial parental relationship" as the "acceptance
and exercise of significant responsibility for the daily supervision,
education, protection and care of the child."
¶46 Section 48.415(6)(b) gives the following non-exclusive examples of
what a court may consider in evaluating whether the person has had a
substantial parental relationship with the child: whether the person has ever
expressed concern for or interest in the support, care, or well-being of the
child, whether the person has neglected or refused to provide care or support
for the child, and whether, with respect to a person who is or may be the
father of the child, the person has ever expressed concern for or interest in
the support, care, or well-being of the mother during her pregnancy.
¶47 Section 48.415(6) contains no express directive regarding whether a
circuit court must consider that the father did not know of or have reason to
believe of the existence of the child before the petition for termination was
filed when deciding whether the father never had a substantial parental
relationship with the child.
¶48 The State argues that Bobby G.'s efforts to assume parental
responsibility after the petition to terminate was filed and after he learned
of his paternity but before grounds for termination were adjudicated are
irrelevant. We are not persuaded by this
argument for several reasons.
¶49 First, Wis. Stat. § 48.415(6)(b) explicitly uses language that
evidences the relevancy of whether a father knew or had reason to believe he
was the father before the petition for termination of parental rights was
filed. Section 48.415(6)(b) requires
that "[i]n evaluating whether the person has had a substantial parental
relationship with the child," the circuit court may consider "whether
the person [father here] has neglected or refused to provide care
or support for the child (emphasis added)." The words "neglected" and
"refused" convey a willful or deliberate omission. The word "neglected" is not
synonymous with negligence here. Rather,
in the context of child support, "neglect" is commonly understood to
mean a willful failure to provide support; a breach of the duty to support. Likewise, the word "refuse," as
commonly understood, involves a decision to reject a certain choice or course
of action. Accordingly, the words "neglected"
and "refused" in § 48.415(6)(b) carry with them the sense that
the father knew or had reason to believe he was the father but nevertheless did
not provide care or support. In deciding
whether a father neglects or refuses to provide care or support for the child,
a circuit court should consider whether these failures were willful or
deliberate. A circuit court therefore
would have to take into account whether the father knew or had reason to
believe he was the father when considering whether the father
"neglected" or "refused" to care for the child.
¶50 Second, Wis. Stat. § 48.415(6) contains no express directive
regarding whether the circuit court can consider only parental efforts
undertaken prior to the filing of the petition for termination of parental
rights. The text seems to say the
circuit court is not so limited.
Wisconsin Stat. § 48.415(6)(a) requires that the party seeking
termination must prove a parent's failure to assume parental responsibility by
demonstrating that the parent has "never had a substantial parental
relationship with the child" (emphasis added). "Never" means never.
¶51 Likewise, a circuit court may consider under § 48.415(6)(b)
whether a parent has "ever" expressed concern for or interest
in the well-being of the child or whether the father has "ever"
expressed concern for or interest in the well-being of the mother during her
pregnancy. "Ever" means
ever.
¶52 The words "never" and "ever" in Wis. Stat.
§ 48.415(6) certainly do not suggest that the relevant period for
consideration in termination of parental rights cases ends at the filing of the
petition. The words "never"
and "ever" signal that the circuit court must consider all facts
available, including a parent's conduct after the petition for termination was
filed, when deciding whether a substantial parental relationship exists.
¶53 Third, the introductory language in Wis. Stat. § 48.415
provides that a circuit court's finding that a ground exists for the
termination of parental rights is made "at the fact-finding hearing." This language does not require that the
evidence regarding the grounds be limited to what has transpired as of the date
of filing of the petition. All the
statute requires is that at the time of the fact-finding hearing the State
prove the statutory grounds for termination by clear and convincing evidence.
¶54 Fourth, Wis. Stat. § 48.31(1), although relied upon by the
State, does not support the State's position that the relevant cut-off date for
evidence relating to the assumption of parental responsibility is the date the
petition for termination is filed.
Wisconsin Stat. § 48.31(1) provides that a "'fact-finding'
hearing means a hearing to determine if the allegations in a petition . . . to
terminate parental rights are proved by clear and convincing
evidence." The State claims that
the "allegations in the petition" necessarily include only those
facts that precede its filing. The State
urges that a father's post-termination petition conduct is admissible only for
grounds for termination that contain a predictive element and that
§ 48.415(6) does not include a predictive element. The State cites no support except a comment
to the jury instruction Wis JI——Children 180.
The comment, however, acknowledges that the issue of the time period
arises in several grounds and concludes that "the question of timing the
jury's consideration of prepetition and postpetition evidence must be resolved
by the trial judge in the context of the jurisdictional ground at issue."
¶55 Likewise, Wis. Stat. § 48.424, which describes the
fact-finding hearing at the grounds phase that must occur as part of a
termination of parental rights proceeding, also does not command the conclusion
that evidence must be limited to a parent's conduct that occurred before the
petition for termination of parental rights was filed. Sub-section 48.424(1) states in relevant
part: "[t]he purpose of the fact-finding hearing is to determine whether
grounds exist for the termination of parental
rights . . . ."
Nothing about this provision limits the evidence to pre-petition
conduct. Sub-section 48.424(2) provides
in relevant part that a "fact-finding hearing shall be conducted according
to the procedure specified in s. 48.31 . . . ." This provision directs our attention only to
§ 48.31, which we already concluded does not limit the scope of the
fact-finding hearing to the facts alleged in the petition to terminate parental
rights.
¶56 Fifth, the State's position on Wis. Stat. § 48.415(6) is not
in accord with the express purposes of the Children's Code, which codifies the
statutory provisions on termination of parental rights. Our interpretation of § 48.415(6)
comports with the purposes of the Code.
¶57 The legislature expressly intended to protect, whenever
appropriate, the biological family unit.
As one of the express goals of the Children's Code, the legislature
declared as follows:
While recognizing that the paramount goal of this
chapter is to protect children and unborn children, to preserve the unity of
the family, whenever appropriate, by strengthening family life through
assisting parents and the expectant mothers of unborn children, whenever
appropriate, in fulfilling their responsibilities as parents or expectant
mothers. The courts and agencies
responsible for child welfare, while assuring that a child's health and safety
are the paramount concerns, should assist parents and the expectant mothers of unborn
children in changing any circumstances in the home which might harm the child
or unborn child.
Wis. Stat. § 48.01(a).
¶58 With regard to the termination of parental rights, the legislature
has expressly announced that efforts must be made to reunite biological
families whenever appropriate. The
termination of parental rights is not supposed to occur until efforts at
reunification have failed. The goal is
therefore:
To allow for the termination of parental rights at the
earliest possible time after rehabilitation and reunification efforts are
discontinued in accordance with this chapter and termination of parental rights
is in the best interest of the child.
Wis. Stat. § 48.01(gr).
¶59 Because biological parents' rights are deserving of protection, the
legislature expressly mandated fair procedures to safeguard parental rights in
their biological children. As such, the
legislature intended:
To provide judicial and other procedures through which
children and all other interested parties are assured fair hearings and their
constitutional and other legal rights are recognized and enforced, while
protecting the public safety.
Wis. Stat. § 48.01(ad).
¶60 A biological parent's rights, of course, are not the only interests
at stake. The Children's Code attempts
to strike the appropriate balance between competing interests, including those
of the biological parent in his or her relationship with the child, those of
the child in permanence and stability in familial relationships, and those of
the State in securing efficient and speedy resolution of termination of
parental rights proceedings. Thus, the
legislature announced that the courts need not reunite families in all
instances:
The courts should recognize that they have the
authority, in appropriate cases, not to reunite a child with his or her
family. The courts and agencies
responsible for child welfare should also recognize that instability and
impermanence in family relationships are contrary to the welfare of children
and should therefore recognize the importance of eliminating the need for
children to wait unreasonable periods of time for their parents to correct the
conditions that prevent their safe return to the family.
Wis. Stat. § 48.01(a).
¶61 The legislature explicitly requires that the Children's Code
"shall be liberally construed to effectuate" the stated legislative
purposes. Wis. Stat. § 48.01.
¶62 To effectuate the stated legislative purposes requires a circuit
court, in determining whether grounds exist under § 48.415(6), to consider
the efforts of a biological parent to assume parental responsibility after the
filing of the termination of parental rights petition but before adjudication
of the grounds for termination.
Furthermore, as a matter of sound judicial administration, a circuit
court should make determinations on parental rights with access to the fullest
information concerning the biological parents and children, including
information on whether the parent has assumed parental responsibility up to the
hearing on the grounds for termination.
¶63 Sixth, the State's position on Wis. Stat. § 48.415(6) is also
inconsistent with the specific statutory provisions the legislature enacted to
protect a putative father's rights in a termination of parental rights
proceeding. "Terminations of
parental rights affect some of parents' most fundamental human rights." Termination proceedings require heightened
legal safeguards against erroneous decisions. For instance, Wis. Stat. § 48.42(2)(b)2.
protects a nonmarital father's right to notice of a termination
proceeding. Likewise, § 48.422(6)(a)
and (6)(b) protect a putative father's right to participate at the termination
of parental rights proceeding.
¶64 If we were to accept the State's interpretation of Wis. Stat.
§ 48.415(6) as allowing evidence of a father's conduct only up to the date
of the filing of the petition to terminate parental rights, the statute would
in many instances create an irrebutable presumption that a man who does not
know he is the father of a child before the filing of the petition for termination
cannot assume parental responsibility for the child. The creation of this irrebutable presumption
is not in accord with the various statutory provisions protecting the rights of
a putative father and guaranteeing a father's participation in the termination
proceedings. We must interpret the
statutory scheme holistically to avoid absurd results.
¶65 Seventh, the State's position on Wis. Stat. § 48.415(6)
contravenes the statutory history of Wis. Stat. § 48.415(6), that is, the
previously enacted and repealed statutory provisions, from the adoption of
§ 48.415(6) in 1979 until the 2003-04 version governing the present
case.
¶66 Section 48.415(6) was originally enacted in 1979 and establishes
"failure to assume parental responsibility" as a ground for the
termination of parental rights. In the 1979 statute, the failure to assume
parental responsibility may be established by demonstrating that the father did
not establish a substantial parental relationship "prior to the
adjudication of paternity although the father had reason to believe he was the
father and had an opportunity to establish a substantial relationship
(emphasis added)." Section
48.415(6)(a)2. stated in relevant part as follows:
(a) Failure to assume parental responsibility may be
established by a showing that a child has been born out of wedlock, not subsequently
legitimated or adopted, that paternity was not adjudicated prior to the filing
of the petition for termination of parental rights and:
. . . .
2. That although paternity to the child has been
adjudicated under s. 48.423, the father did not establish a substantial
parental relationship with the child prior to the adjudication of paternity
although the father had reason to believe that he was the father of the child
and had an opportunity to establish a substantial parental relationship with
the child (emphasis added).
¶67 Subsection (b) of Wis. Stat. § 48.415(6) enumerated
non-exclusive factors a circuit court could consider in evaluating whether a
person has had a substantial parental relationship with the child. One of these factors was whether the parent
"has neglected or refused to provide care or support even though the
person has had the opportunity and ability to do so" (emphasis
added). Section 48.415(6)(b) read as
follows in 1979:
(b) In this subsection, "substantial parental
relationship" means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection and care of the
child. In evaluating whether the person
has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has
ever expressed concern for or interest in the support, care or well-being of
the child or the mother during her pregnancy and whether the person has
neglected or refused to provide care or support even though the person had the
opportunity and ability to do so (emphasis added).
¶68 In 1987, the legislature amended Wis. Stat. § 48.415(6)(a)2. The amended statute still provided that the
party seeking termination could prove failure to assume parental responsibility
by demonstrating that the father did not establish a substantial parental
relationship with the child prior to the adjudication of paternity although the
person had reason to believe he was the father of the child. The 1987 amendment deleted, however, the
statutory language in § 48.415(6)(a)2. that expressly addressed whether a
father had an opportunity to develop a substantial relationship with his
biological child.
¶69 Subsection 48.415(6)(a)2. was amended in 1987 to read as follows:
2. That although paternity to the child has been
adjudicated under s. 48.423, the father did not establish a substantial
parental relationship with the child prior to the adjudication of paternity
although the father had reason to believe that he was the father of the child
and had an opportunity to establish a substantial parental relationship with
has never assumed parental responsibility for the child.
The insertions are shown by
underlining and the deletions are shown as stricken.
¶70 Subsection (b) of Wis. Stat. § 48.415(6) was also revised in
1987 as part of the same bill to eliminate the final phrase of subsection
(6)(b) stating "even though the person had the opportunity [to provide
care and support] and ability to do so."
Subsection (b) as amended in 1987 (with tracked changes) reads as
follows:
(b) In this subsection, "substantial parental
relationship" means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection and care of the
child. In evaluating whether the person
has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has
ever expressed concern for or interest in the support, care or well-being of
the child or the mother during her pregnancy and whether the person has
neglected or refused to provide care or support even though the person had
the opportunity and ability to do so.
¶71 According to the Legislative Research Bureau's analysis: "This
bill modifies the current grounds for an involuntary [termination of parental
rights] based on the failure of a parent to assume parental responsibility for
a nonmarital child by eliminating the provision in which it must be shown that
a father had an opportunity to establish a substantial parental relationship
with the child prior to a paternity adjudication but failed to do so. This bill provides that it must be shown that
a father never assumed parental responsibility for the child prior to the
adjudication of his paternity."
¶72 As a result of this 1987 amendment, the party seeking termination
did not have to prove that the father had an opportunity to establish a
substantial relationship with his biological child, although the party seeking
termination still had to prove that prior to the adjudication of paternity the
father had reason to believe that he was the father of the child and had never assumed
parental responsibility for the child.
¶73 In 1989, the legislature once again amended Wis. Stat.
§ 48.415(6)(a)2. The 1989 amendment substituted the language
"filing of a petition for termination of parental rights" for the
previous language "adjudication of paternity." Thus, as of 1989 the party seeking
termination could prove failure to assume parental responsibility by
demonstrating that the father did not establish a substantial parental
relationship prior to the filing of a petition for termination of parental
rights rather than prior to the adjudication of paternity.
¶74 After the 1989 amendment,
Wis. Stat. § 48.415(6)(a)2. read as follows with tracked
changes:
(a) Failure to assume parental responsibility may be
established by a showing that a child is a nonmarital child who has not been
adopted or whose parents have not subsequently intermarried under s. 767.60,
that paternity was not adjudicated prior to the filing of the petition for
termination of parental rights and:
. . . .
2. That although paternity to the child has been
adjudicated under s.48.423, the father did not establish a substantial parental
relationship with the child prior to the adjudication of paternity filing
of a petition for termination of parental rights although the father had
reason to believe he was the father of the child and has never not
assumed parental responsibility for the child.
¶75 A Drafter's Note included in the Wisconsin Legislative Reference
Bureau drafting file on 1989 AB 272 describes the reason for this 1989 change
as follows: "The amendment of s.
48.415(6)(a)2 was [assistant district attorney] Meryl Manhardt's idea. She said that sometimes it takes 6 months or
more to have a paternity hearing and during this time the father starts
spending just enough time with the child so that it can't be proven that he
never assumed parental responsibility."
¶76 The 1989 legislature expressly and unequivocally changed the
relevant time frame during which the party seeking termination had to show that
the father failed to assume parental responsibility. The party seeking termination would need to
submit evidence of the lack of a substantial relationship only for the period
up to the time when the petition for termination of parental rights was
filed. Nevertheless, the party seeking
termination still had to prove that prior to the filing of the termination petition
the father had reason to believe that he was the father of the child and had
not assumed parental responsibility for the child.
¶77 In 1995, the legislature consolidated, renumbered, and amended Wis.
Stat. § 48.415(6). The 1995 version of § 48.415(6) remained
unchanged through 2005 and is the version of § 48.415(6) governing the
instant case. The 1995 amendment was
part of a bill prepared by the Joint Legislative Council's Special Committee on
Children in Need of Protection or Services.
¶78 The language and structure of Wis. Stat. § 48.415(6) were
substantially changed in 1995. Section
48.415(6)(a) reads as follows with the 1995 amendments (with the insertions and
deletions shown):
§ 48.415(6)(a) Failure to assume parental
responsibility may, which shall be established by a showing
proving that a child is a nonmarital child who has not been adopted
or whose parents have not subsequently intermarried under s. 767.60, that
paternity was not adjudicated prior to the filing of the petition for
termination of parental rights and: 1.
The the parent or the person or persons who may be the father
parent of the child have been given notice under s. 48.42 but have
failed to appear or otherwise submit to the jurisdiction of the court and that
such person or persons have never had a substantial parental relationship
with the child; or.
(b) In this subsection, "substantial parental
relationship" means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection and care of the
child. In evaluating whether the person
has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has ever
expressed concern for or interest in the support, care or well-being of the
child or the mother during her pregnancy and, whether the person
has neglected or refused to provide care or support for the child and
whether, with respect to a person who is or may be the father of the child, the
person has ever expressed concern for or interest in the support, care or
well-being of the mother during her pregnancy.
¶79 For ease of reading, here is the statute without tracked changes:
§ 48.415(6)(a) Failure to assume parental
responsibility, which shall be established by proving that the parent or the
person or persons who may be the parent of the child have never had a
substantial parental relationship with the child.
(b) In this subsection, "substantial parental
relationship" means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection and care of the
child. In evaluating whether the person
has had a substantial parental relationship with the child, the court may
consider such factors, including, but not limited to, whether the person has ever
expressed concern for or interest in the support, care or well-being of the
child, whether the person has neglected or refused to provide care or support
for the child and whether, with respect to a person who is or may be the
father of the child, the person has ever expressed concern for or
interest in the support, care or well-being of the mother during her pregnancy
(emphasis added).
¶80 The 1995 version omits the phrase "a father had reason to
believe he was the father of the child," which had appeared in every
version of Wis. Stat. § 48.415(6)(a)2. since 1979. Thus the 1995 text no longer explicitly
provides that the party seeking termination must prove that the father had
never assumed parental responsibility for the child even though the father had
reason to believe he was the father of the child.
¶81 Furthermore, the 1995 version of Wis. Stat. § 48.415(6)(a)
eliminated the 1989 statutory language requiring the party seeking termination
to show that the father failed to establish a substantial parental relationship
prior to the filing of the petition for termination. The 1995 statute also eliminated the 1985
statutory language requiring the party seeking termination to show that the
father failed to establish a substantial parental relationship prior to the
adjudication of paternity. Thus,
unlike prior versions of 48.415(6), the 1995 statute contains no express
language about the timeframe in which the party seeking termination must prove
that the father has never assumed parental responsibility.
¶82 Despite the significant changes in language in 1995, the Note of
the Joint Legislative Council's Special Committee that drafted the amendments
to Wis. Stat. § 48.415(6) (printed in 1995 Wis. Act 275) states that no
change was made to the prior statute except to expand the ground to include
mothers, marital children, and fathers for whom paternity was adjudicated prior
to the filing of the termination petition. The Note to § 48.415(6)(a) printed with
1995 Wis. Act 275 states:
Under current law, the parental rights of the father of
a nonmarital child, that is, a child who is neither conceived nor born while
his or her parents are intermarried, who has not been adopted or whose parents
have not subsequently intermarried and for whom paternity has not been
adjudicated prior to the filing of the TPR petition may be terminated if:
(1) the person or persons who may be the father of the child have been given
notice about the PR petition but have failed to appear or otherwise submit to
the jurisdiction of the court and have never had a substantial parental relationship
with the child; or (2) that although paternity has been adjudicated, the father
did not establish a substantial parental relationship with the child prior
to the filing of the TPR petition although the father had reason to believe he
was the father of the child and has not assumed parental responsibility for
the child.
This bill expands this ground for involuntary TPR to
include: (1) mothers as well as fathers; (2) marital children as well as
nonmarital children; and (3) fathers for whom paternity was adjudicated prior
to the filing of the TPR petition (second emphasis added).
¶83 The Note might lead one to believe that the drafters did not view
the 1995 omission of the concept included since 1979, that the circuit court
should consider whether the father had reason to believe that he was the
father of the child, as substantively changing the statute. We agree with this conclusion. As discussed previously, the words
"refuse" and "neglect" incorporate the concept of
willfulness and deliberateness, that is, that the father had reason to believe
he was the father but nevertheless did not provide care or support for the
child. The Note also might lead one to
believe that the drafters intended to require the father to have established a
substantial parental relationship with the child prior to the filing of the
petition to terminate parental rights.
This view is not supported by the drafting history. The legislative drafting file on 1995 S.B.
501 at the Wisconsin Legislative Reference Bureau contains a Memorandum from
staff attorneys at the Legislative Council to Senator Joanne Huelsman,
Representative Shirley Krug, Representative Bonnie Ladwig, and the Legislative
Reference Bureau commenting on recommended amendments.
¶84 One recommended amendment was to "[s]pecify the pertinent time
period during which the parent must have failed to assume parental
responsibility, for example, in the year prior to the time the [termination of
parental rights] petition was filed."
A handwritten "No" appears next to this recommendation. This amendment was not adopted.
¶85 The reasonable inference from the 1995 text of § 48.415(6)(a)
and this drafting memorandum is that the legislature's removal of references to
both the date of adjudication of paternity and the date of filing of the
termination petition removed the limitation on the proof of failure to assume
parental responsibility to any date preceding the hearing on the grounds for
termination.
¶86 Furthermore, the use of the words "never" and
"ever," as we explained previously, support a circuit court's
considering all evidence as of the hearing on the grounds for termination.
¶87 Our interpretation of the word "never" in Wis. Stat.
§ 48.415(6)(a) is supported by the same Memorandum from staff attorneys at
the Legislative Council. A recommended
amendment was to "[s]pecify that the parent has 'not' had a substantial
parental relationship rather than 'never' had a substantial parental
relationship." The staff attorneys'
comment to this recommendation was, "This does appear to be a substantive
difference." A handwritten
"No" appears next to this recommendation.
¶88 The Legislative Council Special Committee on Adoption and
Termination of Parental Rights Law, which had proposed the 2005 amendment,
explained the need for the change as follows:
"According to testimony received by the Special Committee,
requiring a showing that the person has never had a substantial
relationship with the child can be difficult if the parent ever showed any
interest or had any contact with the child" (Report at 11).
¶89 For the reasons set forth, we are unpersuaded by the State's
position on Wis. Stat. § 48.415(6).
On the basis of the text of Wis. Stat. § 48.415(6), the purposes of
the Children's Code, and the statutory evolution of § 48.415(6), we hold,
contrary to the State's proffered interpretation, that under § 48.415(6) a
father's efforts to assume parental responsibility for a biological child
undertaken after he learns of the existence of the child but before the
adjudication of the ground must be considered by the circuit court in
determining whether the ground of failing to assume a parental relationship
under § 48.415(6) has been proven by clear and convincing evidence.
¶90 Bobby G.'s responses to the State's interrogatories should have
alerted the circuit court that Bobby G. was trying to establish a parental
relationship with Marquette after he had reason to believe that he was
Marquette's father. Summary judgment was
inappropriate because material facts were presented disputing the State's claim
that Bobby G. never assumed parental responsibility for Marquette.
¶91 Although Bobby G. admitted that, among other things, he failed to
assume parental responsibility for Marquette and had not developed a
substantial relationship with Marquette, the circuit court should not have
automatically concluded that Wis. Stat. § 48.415(6) was satisfied by clear
and convincing evidence. "Failure
to assume parental responsibility" and "substantial parental
relationship" are legally defined terms, and the statutory definitions may
not neatly align with the common sense understanding of these phrases. Accordingly, the circuit court should not
have so readily accepted Bobby G.'s admissions as concessions that the State
had proved the requirements under § 48.415(6).
¶92 In addition, Wis. Stat. § 48.422(7)(c) provides that before
accepting an admission of the alleged facts in a petition, the circuit court
shall address the parties and determine that the admission is made voluntarily
with understanding of the nature of the actions alleged in the petition and the
potential dispositions, and shall "make such inquiries as satisfactorily
establish that there is a factual basis for the admission." The circuit court did not live up to these
statutory obligations in the present case.
¶93 In any event, Wis. Stat. § 48.415(6) provides a non-exclusive
list of factors that the circuit court or the jury may consider in determining
whether the biological parent failed to assume parental responsibility. The State's requests for admissions and
interrogatories did not expressly address all of the factors listed. Even if the State had sought admissions on
all of the enumerated factors, the list of factors is not exclusive. Such admissions may still not constitute
"clear and convincing" evidence that the statutory ground for
termination was actually satisfied by clear and convincing evidence. Section 48.415(6) is a fact-intensive ground.
¶94 The circuit court erred as a matter of law in its interpretation of
Wis. Stat. § 48.415(6) and in granting partial summary judgment without
taking all the relevant evidence during the grounds phase. We must now determine whether the error was
remedied and was harmless. To decide
whether the error was remedied and was harmless, we turn to Evelyn C.R. v.
Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, and Waukesha
County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607
N.W.2d 607, in which a circuit court erred in not taking evidence at the
grounds phase and the error was declared harmless error.
¶95 Evelyn C.R. and Steven H. differ from the instant
case. In Evelyn C.R. the parent
had defaulted; in Steven H. the parent did not contest the
petition. In both those two cases a
sufficient evidentiary basis for a court's determination of unfitness rendered
the circuit court's error in failing to take evidence at the grounds phase
harmless. In contrast, in the instant
case Bobby G. contested the petition and demanded a jury trial on the grounds
for termination. In the instant case,
the circuit court's error was not remedied and was not harmless for the reasons
set forth below.
V
¶96 Even if the circuit court had taken evidence and considered Bobby
G.'s post-termination petition efforts during the grounds phase or during the dispositional
phase, neither the circuit court nor this court could decide whether the State
had satisfied its burden under Wis. Stat. § 48.415(6). The facts to the extent they were developed
and their import are in dispute.
Accordingly, with material facts in dispute, the circuit court erred as
a matter of law in granting partial summary judgment. Furthermore, Bobby G. had requested a jury
trial, which the circuit court denied because it found no material facts in
dispute. Neither the circuit court nor
this court can deprive Bobby G. of his statutorily granted jury trial without
justification. No justification exists
in the present case. A jury should
decide any dispute of facts or disputed inferences from the facts, not the
circuit court or this court.
¶97 In Evelyn C.R., in which the parent had defaulted, we held
that although the circuit court erred when it failed to take evidence at the
fact-finding hearing to establish the grounds for the termination of parental
rights by clear and convincing evidence, the error was harmless. The circuit court remedied the error by
taking evidence at the dispositional phase of the termination of parental
rights proceeding and then reconsidering its finding of the ground for
termination on the basis of the new evidence presented. The facts were sufficient in Evelyn C.R.
to support the circuit court's findings that grounds for termination
existed. We explained our decision
upholding the circuit court as follows:
[T]he circuit court did not enter its order terminating
Tykila's parental rights until after taking Evelyn's testimony and, based on
this testimony, reaffirming its finding of abandonment. At the time the court reaffirmed its finding
of abandonment and prior to the court ordering the termination of Tykila's
parental rights, the record contained sufficient facts to support the circuit
court's finding of abandonment.
¶98 As was the case in Evelyn C.R., the circuit court here
received evidence relevant to the issue of the ground for termination at the
dispositional stage of the termination proceedings. The circuit court took testimony from Bobby
G. regarding his efforts to develop a relationship with his biological son
after he learned about his son, that is, after the termination proceeding had
begun. Bobby G.'s counsel introduced
into evidence several of the letters that Bobby G. had written to caseworkers,
which included inquiries about how to care for and contact his son. The foster father, Dr. Jeffrey, testified
about the shoes and money order that he received from Bobby G. on Marquette's
behalf. The circuit court also heard
that Bobby G. had made several attempts to contact Denise W. while (unbeknownst
to him) she was pregnant.
¶99 This evidence——which was not presented at the grounds phase of the
termination proceeding——is relevant to whether Bobby G. failed to assume
parental responsibility for Marquette.
Unlike in Evelyn C.R., however, in the present case the parent
had not defaulted in the grounds phase and the circuit court did not reconsider
and reaffirm its finding about the ground for termination on the basis of this
adduced evidence.
¶100 Instead, the circuit court announced that "a great deal of the
testimony that we took as it's [sic] relates to you today really isn't
particularly relevant." The circuit
court continued, "And, quite frankly, my listening to your description of
the programming you're going through it sounds like, yeah, you have had a rough
10, 15 years, but it looks like things are finally coming together for you;
starting to make the necessary decisions you have so that your life can turn
around. And that is great. I hope it works out for you. But that is about you and this is about
Marquette."
¶101 The circuit court did not find the new evidence relevant to the
issue of the ground for termination.
Because the statute requires the circuit court to consider evidence of
Bobby G.'s conduct after the filing of the termination petition to assume
parental responsibility for Marquette, we conclude that the circuit court erred
in granting partial summary judgment and, unlike in Evelyn C.R., that
this error was not remedied at the dispositional phase.
¶102 In Steven H.,
the parent did not contest the petition and did not demand a jury trial. The Steven H. court examined the
entire record of the termination of parental rights proceedings and
"teased out" a factual basis to support the circuit court's finding
of grounds for termination. In Steven
H., although the circuit court erred in failing to take testimony to
support the allegations in the petition to terminate parental rights, "[a]
factual basis for several of the allegations in the petition [could] be teased
out of the testimony of other witnesses at other hearings when the entire
record [was] examined."
¶103 Even if we were to apply the command of the Steven H. court
to "tease out" the factual basis from the relevant testimony when
Bobby G. demanded a jury trial, we can only "tease out" from Bobby
G.'s testimony that there was evidence, left largely unexplored by the parties,
that Bobby G. was trying to assume parental responsibility for Marquette. At a proper fact-finding hearing, the extent
and nature of those efforts could be examined.
Only after a proper fact-finding hearing in which all of the relevant
information about Bobby G.'s post-petition efforts to assume parental
responsibility is presented could a jury determine whether grounds exist or
could this court determine whether a directed verdict should be entered.
¶104 In the present case, Bobby G. was denied a jury trial guaranteed by
statute. Wisconsin Stat.
§ 48.422(4) protects the right to a jury trial when a parent contests the
petition for termination of parental rights.
It provides in relevant part:
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.
¶105 This statute is not the only reference to the right to a jury
trial. Wisconsin Stat. § 48.424(2)
directs that the fact-finding hearing be conducted according to Wis. Stat.
§ 48.31. Wisconsin Stat.
§ 48.31(2) governs fact-finding hearings in the Children's Code. It, too, emphasizes and protects the right to
a jury trial, providing in relevant part:
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.
¶106 Wisconsin Stat. § 48.415 reiterates the role the jury plays in
a fact-finding hearing on grounds for termination of parental rights, stating
that "[a]t the fact-finding hearing the court or jury may make a finding
that grounds exist for the termination of parental rights."
¶107 The circuit court erred in concluding that no material facts
warranting a jury trial were in dispute.
In doing so, the circuit court denied Bobby G.'s repeated requests for a
jury trial. Disputed facts remain which
should have been decided by a jury.
*
* * *
¶108 We recognize that our decision unfortunately further extends the
child's period of uncertainty.
Nevertheless, the rights of both a parent and a child must be protected.
¶109 For the reasons set forth, we hold that in determining whether a
party seeking termination of parental rights has proven by clear and convincing
evidence that a biological father has failed to assume parental responsibility
under Wis. Stat. § 48.415(6), a circuit court must consider the biological
father's efforts undertaken after he discovers that he is the father but before
the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case
proceeded under an erroneous interpretation of the statute. Furthermore, the facts were not fully
developed, and the facts to the extent they were developed and their import are
in dispute. The parties disputed whether
Bobby G. assumed parental responsibility after he learned of his paternity but
before adjudication of the grounds for termination. Accordingly, with facts in dispute, the
circuit court erred as a matter of law in granting partial summary
judgment. Moreover, Bobby G. requested a
jury trial, which the circuit court denied because it erroneously found no
material facts or inferences therefrom in dispute. Neither the circuit court nor this court can
deprive Bobby G. of a jury trial by deciding the factual dispute.
¶110 Accordingly, we reverse the decision of the court of appeals and the
summary judgment and remand the cause to the circuit court for a fact-finding
hearing in accordance with Wis. Stat. § 48.424 to determine whether
grounds exist for termination of Bobby G.'s parental rights to Marquette and,
if necessary, for a dispositional hearing in accordance with § 48.427 on
whether Bobby G.'s parental rights should be terminated in the best interests
of Marquette.
By the Court.—The decision of the court of appeals is
reversed.
¶111 JON P. WILCOX, J. (dissenting). Could a cocaine- pushing, woman-battering
man, who does not even know about the existence of his child, have accepted and
exercised "significant responsibility for the daily supervision,
education, protection and care of the child"? Wis. Stat. § 48.415(6)(b)
(2003-04).
¶112 If that is too close of a call, consider the same question, only the
person admitted he never exercised responsibility for the daily supervision of
the child, never exercised responsibility for the education of the child, never
paid child support, and never met the child.
Plus, he has been incarcerated for the vast majority of the child's
life.
¶113 The circuit court answered no.
Such a person has not assumed parental responsibility pursuant to
Wis. Stat. § 48.415(6).
The majority concludes the circuit court erred. "[T]he circuit court in the instant case
proceeded under an erroneous interpretation of the statute" by failing to
"consider the biological father's efforts undertaken after he discover[ed]
that he is the father but before the circuit court adjudicate[d] the grounds of
the termination proceeding."
Majority op., ¶5.
¶114 The plain language of the Children's Code contradicts the majority's
interpretation of § 48.415(6).
Accordingly, I respectfully dissent.
I
¶115 Before addressing the analysis of the majority, it is necessary to
supplement the facts presented by it.
¶116 Marquette was born on August 31, 2003. He was at least six weeks premature and
weighed only four pounds and ten ounces.
He had respiratory problems, including bronchiolitis, reactive airway
disease, and pneumonia. From the
hospital he was placed with foster parents, Dr. Jeffrey and Karen.
¶117 When Marquette was born, Bobby G. was facing charges for battering a
woman. He was clueless about the
existence of the child he had fathered as a result of his one and only
face-to-face contact with Denise W. while not in state custody. Lest one conclude Bobby G. had no way of knowing
the result of their volitional act, the State contacts fathers, such as Bobby
G., if they register pursuant to Wis. Stat. § 48.025.
Wisconsin Stat. § 48.27(3)(b)1. provides that a person
registered pursuant to § 48.025 receive notice of any CHIPS case involving
their potential child. However, Bobby G. never registered with the
state. Any thought that he may have been
ignorant to the potential of a CHIPS case should be offset by the fact that
Bobby G. already had his parental rights terminated to another child by the
time he had face-to-face contact with Denise.
¶118 For the first six months of his life, Marquette's health problems
required extensive treatment. He
required treatment every two to three hours twenty-four hours a day, which his
foster parents provided.
¶119 While Marquette endured his health problems, Bobby G. faced bail
jumping charges. Despite a no contact
order, Bobby G. went to the apartment of the woman he had battered a few months
earlier. When he refused to leave, the
woman contacted the police. The police
persuaded him to leave. Within an hour,
Bobby G. was back at the woman's apartment banging on the door. By his second visit, the police had
discovered the existence of the no contact order.
¶120 In Spring 2004 Marquette's health condition got worse. He suffered a series of recurrent ear
infections. He developed problems eating
and maintaining his nutritional status.
As a result of Marquette's condition, Dr. Jeffrey and Karen needed to
administer treatment every hour and half to two hours twenty-four hours a day
to maintain his hydration and nutrition.
Marquette's condition got so bad that he had to be hospitalized for four
days. Doctors found that food was going
into his lungs and that he had multiple allergies. As they had done for Marquette since he arrived
from the hospital days after his birth, his foster parents provided the
necessary treatment and coordinated his numerous visits to doctors and
therapists.
¶121 While Marquette was needing treatment at least 12 times a day, Bobby
G. was facing charges for delivering cocaine.
He was still oblivious to the existence of the child he had
fathered. He received a maximum term of
imprisonment of seven years and six months.
The initial confinement in the Wisconsin Prison System was two years and
six months and the extended supervision was five years.
¶122 In Summer 2004 the State filed a petition to terminate the parental
rights of Marquette's parents, Denise W. and "Bobby." At the time the petition was filed, the
identity of Marquette's father was unknown by Denise or the State. Denise misidentified Marquette's father twice
before she suggested it may be "Bobby." The State used "Bobby" on the
petition because Denise did not know Bobby G.'s last name. After genetic testing, Bobby G. was
identified as Marquette's father.
¶123 In Fall 2004, only as a result of the State seeking out the identity
of Marquette's father so it could terminate his parental rights, Bobby G.
finally became aware that Marquette existed.
¶124 During the grounds phase of the termination proceedings, Bobby G.
made a number of admissions. He admitted
he never assumed parental responsibility for Marquette. He admitted he never established a
substantial parental relationship with Marquette. He admitted he never exercised responsibility
for the daily supervision of Marquette.
He admitted he never exercised responsibility for the education of
Marquette. He admitted he was unaware
the he was the father of Marquette until after June 16, 2004, the date the
State filed the petition to terminate his parental rights to Marquette. He admitted that he was not involved in
assisting in, or providing for, the prenatal care of Marquette. He admitted that he never paid child support
for Marquette. He admitted that he never
met Marquette. He admitted that he was
unaware that he was the father of Marquette until he was informed of DNA test
results indicating his paternity.
¶125 The State filed a motion for partial summary judgment, asserting
that the undisputed facts entitled it to judgment as a matter of law that Bobby
G. failed to assume parental responsibility pursuant to § 48.415(6). The circuit court granted the State's
motion. Bobby G. filed a notice of
appeal. The court of appeals accepted
the no-merit report submitted by Bobby G.'s counsel.
II
¶126 When a circuit court grants partial summary judgment, we review it
independently applying the same methodology.
Oneida County Dep't. of Social Servs. v. Nicole W., 2007 WI 30,
¶8, ___ Wis. 2d ___, 728 N.W.2d 652. It is appropriate to grant summary judgment
when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
Id. The majority deems
summary judgment inappropriate in this case based on its flawed interpretation
of § 48.415(6).
¶127 When multiple statutes in the same chapter relate to implementing
the chapter's purpose, courts construe them to have a harmonized
interpretation. In re Angel Lace M.,
184 Wis. 2d 492, 512, 516 N.W.2d 678 (1994). The majority's interpretation of
§ 48.415(6) contradicts §§ 48.31(1) and 48.424. Rather than look to the statutes accompanying
§ 48.415(6) in the Children's Code for the proper definition of a
fact-finding hearing, the majority provides a definition based on a contorted
reading of the Children's Code.
A. A Harmonized Interpretation
of the Children's Code Provisions
¶128 Reading §§ 48.31,
48.415, and 48.424 together, the scope of a § 48.415(6) fact-finding hearing
is limited to the facts alleged in the petition to terminate. Facts that arise subsequent to the filing of
the petition to terminate are not relevant to the fact-finder's determination
of whether grounds exist to terminate the parent's parental rights.
¶129 Before enumerating the grounds for involuntary termination of
parental rights, § 48.415 states that "[a]t the fact-finding hearing
the court or jury may make a finding that grounds exist for the termination of
parental rights." Wisconsin Stat.
§ 48.415(6) provides that one of the grounds for involuntary termination
is the failure to assume parental responsibility.
¶130 The language of § 48.415 does not specify the particulars of
the required fact-finding hearing.
However, other provisions of the Children's Code do. Wisconsin Stat. § 48.424, like
§ 48.415, appears in Subchapter VIII of the Children's Code. Subchapter VIII relates to the termination of
parental rights. Section 48.424(1)
explicitly states that "[t]he purpose of the fact-finding hearing is to
determine whether grounds exist for the termination of parental
rights."
Wisconsin Stat. § 48.424(2) provides that a
"fact-finding hearing shall be conducted according to the procedure
specified by s. 48.31."
¶131 Wisconsin Stat. § 48.31(1) defines a
"fact-finding hearing" as "a hearing to determine if the
allegations in . . . a petition to terminate parental
rights are proved by clear and convincing evidence." From the plain language of the statute, the
scope of a fact-finding hearing is limited to those facts alleged in the
petition to terminate parental rights.
¶132 Applying the harmonized interpretation of the statutes to this case,
no dispute of material fact existed when the circuit court granted the State's
motion for partial summary judgment.
Bobby G.'s own admissions establish that he never had the requisite
substantial parental relationship required by § 48.415(6). The circuit court properly granted the State
partial summary judgment.
B. The Majority's Flawed
Interpretation
¶133 In the face of the plain language of the Children's Code, the
majority holds that circuit courts must consider a parent's efforts after the
petition to terminate his or her rights has been filed. Majority op., ¶5. The majority provides seven reasons for its
interpretation. Each reason enumerated
lacks merit.
1. "Neglect" is Different
than "Willful Neglect"
¶134 The majority states that
"Wis. Stat. § 48.415(6)(b) explicitly uses language that
evidences the relevancy of whether a father knew or had reason to believe he
was the father before the petition for termination of parental rights was
filed." Majority op., ¶49. It focuses on the use of the words
"neglected" and "refused," which both appear in one of the
three factors circuit courts may consider pursuant to § 48.415(6)(b). The factor specifically reads, "whether
the person has neglected or refused to provide care or support
for the child."
Wis. Stat. § 48.415(6)(b) (emphasis added). Based on State
v. Cissell, 127 Wis. 2d 205, 225, 378 N.W.2d 691 (1985), the
majority asserts that "[t]he word 'neglected' is not synonymous with
negligence here." Majority op.,
¶49.
¶135 The majority's reliance on Cissell is misplaced. Cissell involved the interpretation of
a child support statute that used the term "willfully neglects." The defendant argued that "willfully
neglects" was internally inconsistent because "willful" means
intentional and "neglect" means negligence. The Cissell court disagreed and held
that the use of the term "willfully neglects" in Wis. Stat. § 52.05(1)
did not render the statute void for vagueness.
¶136 Unlike Cissell, Wis. Stat. § 48.415(6) does
not include the phrase "willfully neglects." It merely uses the word
"neglect." Dismissing the
distinction between a statute that uses the phrase "willfully
neglects" and "neglect" undermines the majority's
interpretation.
2. The Non-Exclusive
Discretionary Factors
¶137 The majority's interpretation of § 48.415(6) depends on its
interpretation of words found in non-exclusive discretionary factors. The plain language of the statute indicates
that was not the legislature's intent.
¶138 Wisconsin Stat. § 48.415(6)(b) defines
"substantial parental relationship" and provides a non-exclusive list
of three factors the court may consider.
Specifically, it states,
In evaluating whether the person has had a substantial
parental relationship with the child, the court may consider such
factors, including, but not limited to, (1) whether the person has ever
expressed concern for or interest in the support, care or well-being of the
child, (2) whether the person has neglected or refused to provide care or
support for the child and (3) whether, with respect to a person who is or may
be the father of the child, the person has ever expressed concern for or
interest in the support, care or well-being of the mother during her pregnancy.
Wisconsin Stat. § 48.415(6)(b)(emphasis
and numbering added). The majority even
recognizes that § 48.415(6)(b) gives "non-exclusive examples of what
a court may consider in evaluating whether the person has had a
substantial parental relationship with the child." Majority op., ¶46 (emphasis added).
¶139 Nevertheless, in explaining its reasons for disregarding the State's
harmonized interpretation of the Children's Code, the majority indicates that
§ 48.415(6) provides a list of elements that "must," or
"have to," be satisfied.
Majority op., ¶¶49, 52. In
concluding its discussion of "neglected" and "refused," the
majority states that "[a] circuit court therefore would have to
take into account whether the father knew or had reason to believe he was the
father." Id., ¶49 (emphasis
added). Why would a circuit court
"have to" when the words "neglected" and
"refused" appear in one of the non-exclusive list of factors "a
court may consider?"
3. The Legislature Defined
"Fact-Finding Hearing"
¶140 The introductory language of § 48.415 provides that "[a]t
the fact-finding hearing the court or jury may make a finding that grounds
exist for the termination of parental rights." Based on that, the majority concludes that
"[t]his language does not require that the evidence regarding the grounds
be limited to what has transpired as of the date of filing of the
petition." Majority op., ¶53. This purportedly supports the majority's
conclusion that circuit courts must consider evidence that arises from conduct
after the filing of the petition to terminate parental rights.
¶141 The majority's assessment makes sense only if the introductory
language of § 48.415(6) is read in a vacuum. The legislature defined "fact-finding
hearing" in §§ 48.31(1) and 48.424.
As addressed above, § 48.31(1) does require that the evidence
regarding the grounds be limited to conduct before the date of filing of the
petition because it is proof of the "allegations in a petition" for
which a fact-finding hearing is held.
4. Statutes are Primary
Authority
¶142 The majority proclaims that § 48.31(1) "does not support
the State's position that the relevant cut-off date for evidence relating to
the assumption of parental responsibility is the date the petition for
termination is filed." Majority
op., ¶54. Why? Because "[t]he State cites no support
except a comment to the jury instruction Wis JI—Children 180." Id.
¶143 The plain language of § 48.31(1) supports the State's position. Only by rejecting enactments of the
legislature as primary authority does the majority's assessment of
§§ 48.31(1) and 48.415(6) reach its erroneous conclusion.
5. The Purpose of the
Children's Code
¶144 The paramount goal of the Children's Code is to protect
children. The majority quoted a portion
of § 48.01(a), which is one of the many subsections that states the
purpose of the Children's Code, as follows:
While recognizing that the paramount goal of this
chapter is to protect children and unborn children, to preserve the unity of
the family, whenever appropriate, by strengthening family life
through assisting parents and the expectant mothers of unborn children, whenever
appropriate, in fulfilling their responsibilities as parents or
expectant mothers.
(Emphasis added.) Family unity and strengthening family life
are secondary goals that are furthered "whenever appropriate."
¶145 With the legislative purposes stated, the majority leaps to the
conclusion that "[t]o effectuate the stated legislative purposes requires
a circuit court, in determining whether grounds exist under § 48.415(6),
to consider the efforts of a biological parent to assume parental
responsibility after the filing of the termination of parental rights petition
but before adjudication of the grounds for termination." Majority op., ¶62.
¶146 The legislature has provided evidence that the majority has failed
to capture the essence of the Children's Code's purpose. Specifically, the legislature enacted
§ 48.31(1).
Wisconsin Stat. § 48.31(1) explicitly limits the scope of
a fact-finding hearing to facts alleged in the petition to terminate. Were the state able to terminate parental
rights on allegations outside of the petition, the parent would not have notice
of the allegations against him or her.
6. Participation Does Not
Ensure that a Party Will Prevail
¶147 Regardless of its aversion toward other Children's Code statutes
that define the scope of fact-finding hearings, the majority claims that
§§ 48.42(2)(b)2. and 48.422(6)(a) support its conclusion. However, an examination of the statutes
indicates that neither contradicts the definition of fact-finding hearing
provided by the legislature in § 48.31(1).
Additionally, neither requires that a circuit court consider certain
evidence at the fact-finding hearing.
¶148 Wisconsin Stat. § 48.42(2) enumerates the parties that
must be summoned when a petition for termination has been filed. Therefore, Bobby G. had to be summoned when a
petition was filed to terminate parental rights to Marquette. Wisconsin Stat. § 48.422(6)(a)
provides that at a Wis. Stat. § 48.422 hearing a circuit court
must ensure that all parties to the termination proceeding have been notified.
¶149 Neither §§ 48.42(2)(b)2. nor 48.422(6)(a) requires that a
circuit court consider certain evidence at fact-finding hearings. Yet, the majority depends on these procedural
statutes to determine the proper scope of fact-finding hearings. The majority does so in the face of the how
the legislature has already defined fact-finding hearings in §§ 48.31(1)
and 48.424.
7. A Legislative Theory
¶150 The majority presents the convoluted history of
§ 48.415(6). Originally, the
substantial parental relationship had to exist "prior to
adjudication."
Wis. Stat. § 48.415(6)(1979-80). Later, the substantial parental relationship
had to exist prior to the "filing of the petition for termination of
parental rights." Wis. Stat. § 48.415(6)(1989-90). In 1995, the legislature consolidated,
renumbered, and amended § 48.415(6).
Wis. Stat. § 48.415(6)(1995-96). Any reference to the temporal scope of the
fact-finding hearing vanished. What does
that mean?
¶151 One theory is that the Joint Legislative Council's Special
Committee, which addressed statutes throughout the Children's Code, realized it
was repetitive to define the scope of a fact-finding hearing in § 48.31(1)
and repeat a substantially similar definition in § 48.415(6). At the time, § 48.31(1) referred to
"allegations in a . . . petition to terminate
parental rights" and § 48.415(6)(a)2. referenced a substantial
parental relationship "prior to the filing of a petition for termination
of parental rights." In an effort
to rid the statutes of some redundancy, the legislature may have deleted the
language.
¶152 Of course, the role of courts is not to theorize about what the
legislature may have been thinking.
Courts interpret the laws as enacted by the legislature. When statutory language manifests a clear
meaning, it is unnecessary to consult extrinsic sources to ascertain the
legislature's intent, such as legislative history. State ex rel. Kalal v. Cir. Ct. for Dane
County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. The rationale behind not delving into the
convoluted legislative history in a case like this is that courts are "not
at liberty to disregard the plain, clear words of the statute." State v. Pratt, 36 Wis. 2d 312,
317, 153 N.W.2d 18 (1967).
III
¶153 Marquette should have been in a permanent home by now. His foster parents wanted to adopt him. The circuit court properly granted the
State's motion for partial summary judgment.
Bobby G. failed to assume parental responsibility. Nevertheless, instead of being in a permanent
home, Marquette continues to be kept in limbo.
¶154 For the forgoing reasons, I respectfully dissent.
¶155 I am authorized to state that Justices DAVID T. PROSSER and PATIENCE
DRAKE ROGGENSACK join this opinion.