COURT OF APPEALS DECISION DATED AND FILED July 15, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
¶1 WEDEMEYER,
J.[1] Otis
G. appeals from an order granting the State’s motion for partial summary
judgment as to the grounds phase pursuant to Wis.
Stat. §§ 802.08, and 48.415(9) (2005-06),[2] in a
termination of parental rights action, which sought to terminate his parental
rights to Davonta S. Otis claims that Wis. Stat. § 48.415(9) is
unconstitutional because: (1) it creates
an irrebuttable presumption of unfitness, which denies him due process of law;
and (2) it is unjustifiably not gender neutral, which denies him the equal
protection of the law. Otis also claims
that a finding of unfitness based solely on a violation of Wis. Stat. § 948.02(2) constitutes
cruel and unusual punishment. We agree
with the trial court that Wis. Stat.
§ 48.415(9) is narrowly tailored to meet the State’s compelling interest in
protecting children from their unfit parents; the statute is not facially
discriminatory; and a finding of unfitness pursuant to Wis. Stat. § 948.02(2) does not constitute cruel and
unusual punishment. Accordingly, this
court affirms.
BACKGROUND
¶2 Davonta
was born on July 18, 2000. Her mother,
Sharkee S., was born on June 17, 1986.
Otis was born on August 28, 1984.
Therefore, at the time of conception, the mother was approximately 13
years, 3 months old and the father was approximately 15 years, 1 month old.
¶3 On
August 8, 2007, the State filed a petition requesting the termination of Otis’s
parental rights to Davonta, alleging grounds against Otis pursuant to Wis. Stat. § 48.415(9), “Parenthood as
a Result of Sexual Assault.” The State
filed a motion for partial summary judgment on October 30, 2007, based on the
indisputable fact that the mother of Davonta was under the age of sixteen when
she and Otis conceived Davonta. Otis
filed a response to that motion and a motion to dismiss on November 23, 2007.
¶4 On
December 28, 2007, a hearing was held in the Milwaukee County Circuit Court
regarding the motion for partial summary judgment and the motion to
dismiss. The trial court granted the
State’s request for partial summary judgment as to the grounds phase pursuant
to Wis. Stat. §§ 802.08 and
48.415(9). Immediately thereafter, the
trial court made a finding of unfitness in accordance with Wis. Stat. § 48.424(4). A written order to that effect was signed on
January 10, 2008.
¶5 Otis
filed a petition for leave to pursue an interlocutory appeal on January 25,
2008, which this Court granted on March 25, 2008. Otis now appeals from the trial court’s order
granting partial summary judgment.
DISCUSSION
¶6 Otis
first claims that the trial court erred in ruling that Wis. Stat. § 48.415(9) does not violate his due
process rights and is constitutional.
For reasons to be stated, we do not agree that the trial court
erred. We affirm.
¶7 We
review constitutional challenges to a statute that present a question of law de novo.
Dane
¶8 The
constitutional right to substantive due process protects individuals from arbitrary,
wrong or oppressive State acts even if fair procedures are used to execute the
acts. Kelli B., 271
¶9 The
State argues that a fundamental interest is not at stake here. The State asserts that Otis has not shown
that he has a fundamental liberty interest at stake by means of having a
substantial relationship with his child, a marked distinction from the father
in Stanley,
405 U.S. 645, and a biological connection alone does not create a fundamental
liberty interest. Lehr v. Robertson, 463
¶10 It
is inconsequential in this case whether the State needs to show that the
statute bears a rational relation to some legitimate government end, or meet
the heightened standard that the statute must be narrowly tailored to advance
the State’s interest in protecting children from their unfit parents; Wis. Stat. § 48.415(9) passes
constitutional muster under both standards.
As such, we will address the higher burden.
¶11
¶12 Otis
next contends that the trial court erred in ruling that Wis. Stat. § 48.414(9) does not violate his equal protection
right and is constitutional. He claims that
the statute is not gender neutral and there is no justification for this
disparity and therefore he is denied equal protection under the law. For reasons to be stated, we do not agree
that the trial court erred. We affirm.
¶13 As
with the preceding section, this court reviews constitutional challenges de novo.
Ponn P., 279
¶14 Otis
is incorrect in his assertion that Wis.
Stat. § 48.415(9) violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, and its corollary in Article 1,
Section 1 of the Wisconsin Constitution.
The statute is neither facially discriminatory nor unconstitutional
beyond a reasonable doubt. A careful
reading of the substantive provisions in the statute refutes Otis’s claim. It states that “(p)arenthood as a result of
sexual assault, which shall be established by proving that the child was
conceived as a result of a sexual assault in violation of s. 940.225(1), (2) or
(3), 948.02(1) or (2), 948.025, or 948.085.”
Nothing in the substantive provisions, the elements to be proved,
excludes females from the purview of the statute. The criminal statutes referred to allow a
female to be prosecuted under any of those provisions as well. Had the legislature intended to limit the
scope of the statute, they could have easily done so by substituting
“fatherhood” for “parenthood” or “fathered” for “conceived.” Otis’s argument thus fails due to the
gender-neutral elements listed in Wis.
Stat. § 48.415(9). We agree with
the trial court that Wis. Stat. § 48.415(9)
does not violate Otis’s right to equal protection under the law.
¶15 Otis’s
third claim is that a finding of unfitness based on a violation of Wis. Stat. § 948.02(2), per Wis. Stat. § 48.414(9) equates to an
infliction of cruel or unusual punishment prohibited by the Eight Amendment to
the United States Constitution, and its corollary, Article 1, Section 6 of the
Wisconsin Constitution. We agree with
the trial court that a finding of unfitness based on conduct in violation of Wis. Stat. § 948.02(2) does not
constitute cruel and unusual punishment.
¶16 A
penalty authorized by statute violates constitutionality if it is out of line
in regards to the public interest sought to be protected. State v. Seraphine, 266
¶17 There
is no need to evaluate whether the statute shocks the public sentiment or is
excessive under the circumstances because a finding of unfitness itself does
not terminate parental rights; there are no “punishments” involved at this stage. In order to actually terminate someone’s
parental rights, a dispositional hearing must be held after the finding of
unfitness is made pursuant to Wis. Stat.
§§ 48.424(4), 48.426, and 48.427. See Oneida
County Department of Social Services v. Nicole W., 2007 WI 30, ¶13, 299
Wis. 2d 637, 728 N.W.2d 652. A finding
of unfitness moves the process to another stage. It does not relinquish a parent’s custodial,
guardianship, and all other rights to their child. Therefore, there is no punishment or final consequence
in a finding of unfitness.
By
the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.