PUBLISHED OPINION
Case No.: 96‑0697
For Complete Title
of Case, see attached opinion
Submitted on Briefs
November 05, 1996
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the
petitioner-appellant, the cause was submitted on the brief of Elizabith B.
Corbett of Wausau.
Respondent
ATTORNEYSOn behalf of the
respondent-respondent, the cause was submitted on the brief of Anne L.
Jacobson of Wausau.
On
behalf of the guardian ad litem, the cause was submitted on the brief of Mary
Ann Perga, of Byrnes & Perga, of Turtle Lake.
COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 10, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0697
STATE
OF WISCONSIN IN
COURT OF APPEALS
IN RE THE PATERNITY OF
BABY DOE:
THOMAS M.P.,
Petitioner-Appellant,
v.
KIMBERLY J.L.,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Polk County:
JAMES R. ERICKSON, Judge. Reversed
and cause remanded for further proceedings.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Thomas M.P. appeals a judgment denying
further proceedings to establish his paternity of Baby Doe. Thomas argues that he was denied due process
when the court dismissed his paternity action prior to blood testing and trial,
and the court erred by going beyond the statutory procedures for paternity
actions when it held an evidentiary hearing to determine the best interests of
the child.
Kimberly J.L. (Baby
Doe's mother) and the guardian ad litem argue that Thomas P. was not denied due
process because he has no constitutionally protected right to a paternity
determination and the trial court did not err when it decided that it was not
in the child's best interests to establish paternity. They also argue that denying Baby Doe a hearing to determine
whether a paternity determination is in her best interests violates equal
protection.
Because paternity
procedures do not address parental fitness, we conclude that the trial court
erred when it conducted the pre-blood test hearing and denied Thomas his
statutory right to blood tests and a paternity determination.[1] We also determine that § 767.458(1m), Stats., does not violate equal
protection. Therefore, we reverse the
judgment and remand for a paternity determination.
The underlying facts of
this case are disputed. Thomas contends
that he and Kimberly met in August or September 1988 and had a romantic
relationship that lasted three or four months.
He testified that during this time he and Kimberly had consensual sexual
intercourse on many occasions. Kimberly
testified that Thomas was not her boyfriend and they never had consensual
intercourse. Instead, she testified
that she was raped by Thomas during the conception period. She testified that she fears him for her own
safety, and supported this with documents regarding Thomas' prior criminal
contact with the police. She does not
want Thomas to ever have contact with Baby Doe. Kimberly has never been married, but has a child with Lloyd
P. Although she and Lloyd P. no longer
reside together, he regularly keeps in touch with her and her two children, and
both of the children refer to Lloyd P. as their father.
Thomas filed a petition
for the determination of paternity and a motion for blood tests on September 7,
1990. Kimberly filed a motion to
dismiss, alleging that a determination of Thomas' paternity was not in Baby
Doe's best interests. The court denied
the motion and on December 20, the court ordered Thomas, Kimberly, and Baby Doe
to submit to blood tests to establish paternity.
On March 22, 1991, the
court denied Kimberly's request for a pre-blood test hearing and again ordered
that Kimberly submit herself and Baby Doe to blood tests.[2] On October 2, 1991, the court held Kimberly
in contempt for refusing to comply with the order. On June 3, 1992, the court modified the order for blood tests, so
that the results would be confidential, and decided to hold an evidentiary
hearing to establish whether a judicial determination of Thomas' paternity is
in Baby Doe's best interests.[3] On June 29, 1992, the court stayed the
contempt sanction.
On October 5 and 6,
1995, the court conducted the best interests hearing. The court found that Kimberly gave birth to a female child in
October 1989, either Thomas or Lloyd P. is the biological father of the child,
and the child interacts with Lloyd P. as though he is her father. Thomas has never had contact with Baby Doe,
and Kimberly has never agreed to such contact.
The child has been in Kimberly's continuous care and custody since
birth.
The court took judicial
notice of the fact that in 1992, a Minnesota court decided that Thomas engaged
in sexually inappropriate behavior with his daughters, failed to admit his
wrongdoing, and was unfit as a parent.
The Minnesota court decided that it was not in the best interests of
these children to reside with Thomas, and it would be detrimental to the
daughters' well-being to be returned to Thomas' care.
Additionally, the court
found that if Baby Doe is Thomas' child, her conception was the result of a
nonconsensual sexual assault of Kimberly by Thomas. The court concluded as a matter of law that this finding alone
was sufficient grounds for its decision that it was not in the best interests
of Baby Doe that paternity proceedings go forward. Based also on the additional findings of fact, the court granted
Kimberly's motion to dismiss and precluded the case from proceeding to
paternity judgment.
On appeal, we first
consider whether Thomas has a statutory right to the determination of his
paternity of Baby Doe. The construction
and interpretation of a statute and its application to the facts presents a
question of law, which we review de novo.
State v. Keith, 175 Wis.2d 75, 78, 498 N.W.2d 865, 866
(Ct. App. 1993). As stated by our
supreme court,
The
purpose of statutory interpretation is to ascertain and give effect to the
legislature's intent. In determining
legislative intent, first resort is to the language of the statute itself. If the meaning of the statute is clear on
its face, this court will not look outside the statute in applying it.
In re
P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677, 681 (1984)
(citations omitted).
In order to determine
whether Thomas has a statutory right to a paternity determination, we must
interpret §§ 767.45 and 767.48, Stats.:
767.45
Determination of paternity. (1) The following persons may
bring an action or motion, including an action or motion for declaratory
judgment, for the purpose of determining the paternity of a child or for the
purpose of rebutting the presumption of paternity ... :
....
(d) A man alleged or alleging himself to
be the father of the child.
....
(5)(a) In this
subsection, "any alleged father" includes any male who has engaged in
sexual intercourse with the child's mother during a possible time of conception
of the child.
767.48
Blood tests in paternity actions. (1) (a) The court may, and upon
request of a party shall, require the child, mother, any male for whom there is
probable cause to believe that he had sexual intercourse with the mother during
a possible time of the child's conception, or any male witness who testifies or
will testify about his sexual relations with the mother at a possible time of
conception to submit to blood tests. Probable
cause of sexual intercourse during a possible time of conception may be
established by a sufficient petition or affidavit of the child's mother filed
with the court, or after an examination under oath of a complainant or witness,
when the court determines such an examination is necessary.
We
conclude that the statutory language is not ambiguous. It expressly provides the alleged father of
a child the right to a determination of paternity, regardless of the
circumstances of the case or the circumstances out of which paternity may have
arisen. Because the legislature has not
provided a best interests hearing, the court exceeded the legislatively
mandated procedure when it ordered a best interests hearing as a prerequisite
to blood tests. The trial court
therefore lacked the statutory authority to conduct the best interests hearing
and to dismiss the paternity proceedings.
We arrive at this
conclusion based strictly on the procedures established in the relevant
paternity statutes. Notwithstanding
Kimberly's allegation of rape, the legislature has not provided that an alleged
father has no standing in a paternity proceeding if he sexually assaulted the
mother or that the court may dismiss paternity proceedings if it determines
that conception resulted from a sexual assault.[4] It is the role of the legislature, and not
the courts, to legislate. American
Motors Corp. v. DILHR, 101 Wis.2d 337, 350, 305 N.W.2d 62, 68
(1981). Despite our opinion as to
whether such a provision should exist, we cannot "change the wording of a
statute to mean something which was not intended by the legislature or by the
plain language used." See id.
at 350, 305 N.W.2d at 68 (quoting Lukaszewicz v. Concrete Research, Inc.,
43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969)).
We make no determination
as to the fitness of Thomas to be a parent to Baby Doe because that is not the
issue in this case. Instead, such an
assessment is appropriate in the context of a proceeding to terminate Thomas'
parental rights, and this decision in no way interferes with Kimberly's right
to initiate or maintain such an action under ch. 48, Stats.
Next, we consider
whether § 767.458(1m), Stats.,
violates Baby Doe's equal protection rights.
This is an issue of first impression in Wisconsin. Kimberly and the guardian ad litem argue
that denying Baby Doe, who was born outside of a marriage, the right to a
hearing to determine whether it is in her best interests to have a
determination of paternity violates equal protection. The relevant statute is § 767.458(1m), which provides the
following:
In an
action to establish the paternity of a child who was born to a woman while she
was married, where a man other than the woman's husband alleges that he, not
the husband, is the child's father, a party may allege that a judicial
determination that a man other than the husband is the father is not in the
best interest of the child. If the
court ... determines that a judicial determination of whether a man other than
the husband is the father is not in the best interest of the child, no blood
tests may be ordered and the action shall be dismissed.
The constitutionality of
a statute presents a question of law, which we review de novo. State v. McManus, 152 Wis.2d
113, 129, 447 N.W.2d 654, 660 (1989).
Statutes are presumed constitutional and will be upheld "if there
is any reasonable basis for the exercise of legislative power." Id. (citation omitted). "Every presumption must be indulged to
sustain the law if at all possible and, wherever doubt exists as to the
legislative enactment's constitutionality, it must be resolved in favor of constitutionality." Id. at 129, 447 N.W.2d at 660
(quoting State ex rel. Hammermill Paper Co. v. La Plante, 58
Wis.2d 32, 46, 205 N.W.2d 784, 792 (1973)).
"The court cannot reweigh the facts found by the legislature. If the court can conceive any facts on which
the legislation could reasonably be based, it must hold the legislation
constitutional." Id. (quoting
State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 506, 261
N.W.2d 434, 441 (1978)).
The equal protection
clause of the fourteenth amendment guarantees that "those who are
similarly situated will be treated similarly." Treiber v. Knoll, 135 Wis.2d 58, 68, 398 N.W.2d
756, 760 (1987). "The fact a
statutory classification results in some inequity, however, does not provide
sufficient grounds for invalidating a legislative enactment." McManus, 152 Wis.2d at
130-31, 447 N.W.2d at 660. When the
State is not discriminating based on a suspect classification, the
classification will be upheld if it bears a rational relationship to a
legitimate government interest. Id. Equal protection of the laws is denied
only when the legislature makes irrational classifications. Omernik v. State, 64 Wis.2d 6,
18-19, 218 N.W.2d 734, 742 (1974).
We review the merits of
an equal protection challenge in two steps.
See Laskaris v. Wisconsin Dells, 131 Wis.2d 525,
534-35, 389 N.W.2d 67, 71 (Ct. App. 1986).
"The first step in equal protection analysis is to identify the
classes created by the challenged legislation.
The next step is to determine whether a reasonable and practical basis
exists for the classification." Id. Section 767.458(1m), Stats., distinguishes between children born inside and
outside of wedlock. At first blush, one
could easily come to the conclusion that children born outside of wedlock
should not be treated differently because it is the child's best interests that
are at issue. The legislature could
have said that, but it did not. The
question then becomes whether there is a legitimate rational basis for this
distinction. The reasonable basis for
the legislation is to protect children born into a marriage from the
interference of another man with the existing marital father-child
relationship, and to preserve family unity.
The statute promotes the
traditional respect for the sanctity of marriage and the preservation of the
unitary family. See Michael H. v.
Gerald D., 491 U.S. 110, 123 (1989).
As noted by the Court in Michael H., these ideals have
formed the basis for the outcomes of numerous cases in which the parental
rights to a child have been determined.
Id.; see Lehr v. Robertson, 463 U.S. 248,
261 (1983); Caban v. Mohammed, 441 U.S. 380, 389 (1979); Quilloin v. Walcott, 434 U.S.
246, 254-55 (1978); Stanley v. Illinois, 405 U.S. 645, 661
(1972). As summarized by the Court,
"Our decisions establish that the Constitution protects the sanctity of
the family precisely because the institution of the family is deeply rooted in
this Nation's history and tradition." Michael H., 491 U.S.
at 123-24 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)).
We are satisfied that
the historic respect for the unitary family and the legislature's intent to
preclude interference with an otherwise secure environment for the child are
sufficient reasonable grounds for the legislature's classifications, and the
legislative classification is germane to the purpose of the law. We therefore determine that § 767.458(1m), Stats., withstands the equal protection
challenge. In summary, we conclude that
Thomas has a statutory right to a paternity determination and that §
767.458(1m), Stats., applies only
to children born to a woman while she was married and does not violate the
principles of equal protection.
By the Court.—Judgment
reversed and cause remanded for further paternity proceedings.
[1] Because we conclude that Thomas has a statutory right to the determination of paternity, it is unnecessary to address whether Thomas has a due process right to a paternity determination.
[2] Kimberly requested review of the order by petition for leave to appeal, and this court dismissed the appeal for lack of jurisdiction on July 23, 1991.
[4] Kimberly and the guardian ad litem rely in part on In re SueAnn A.M., 176 Wis.2d 673, 500 N.W.2d 649 (1993), to support their argument that Thomas has no right to a paternity determination. SueAnn was a termination of parental rights case in which our supreme court, in relevant part, upheld the constitutionality of § 48.42(2m), Stats.: "(2m) Notice not required. Notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault if a physician attests to his or her belief that a sexual assault has occurred." SueAnn is distinguishable because the court interpreted and applied a statutory subsection that pertains to termination of parental rights proceedings, which are not at issue in this case. Here, ch. 767, Stats., does not contain a provision prohibiting an a alleged father from obtaining a paternity determination if the conception resulted from a sexual assault.