COURT OF APPEALS DECISION DATED AND FILED March 23, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 PETERSON, J.[1] Nicole W.’s parental rights were terminated under Wis. Stat. § 48.415(10). This statute permits termination if (1) a parent’s child is found to be in need of protection or services due to abandonment, abuse, or neglect, and (2) the parent’s rights were previously involuntarily terminated to another child within the prior three years. Nicole argues the statute is unconstitutional on its face and as applied to her. We disagree.
BACKGROUND
¶2 The Vilas County Social Services Department took Nicole’s
daughter, Tatiana A.W., into custody immediately after she was born and placed
her into foster care. Four months later,
the circuit court found Tatiana to be a child in need of protection or services
(CHIPS) under Wis. Stat. § 48.13(10). This statute applies when a child is in need
of protection or services because the child’s parent “refuses or is unable for
reasons other than poverty to provide necessary care, food, clothing, medical
or dental care or shelter so as to seriously endanger the [life] of the child[.]”
¶3 Two years later, the Oneida County Department of Social Services[2] filed a petition to terminate Nicole’s parental rights to Tatiana. The Department alleged four statutory grounds supporting the petition, including Wis. Stat. § 48.415(10)—prior involuntary termination of parental rights. This ground requires:
(a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13(2), (3), or (10); [and]
(b) That, within 3 years prior to the date the court adjudged the child to be in need of protection or services as specified in par. (a) or, in the case of a child born after the filing of a petition as specified in par. (a), within 3 years prior to the date of birth of the child, a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section.
Wis. Stat. § 48.415(10).
¶4 The court concluded there were no material facts in dispute because (a) Tatiana had been found to be in need of protection or services under Wis. Stat. § 48.13(10), and (b) Nicole’s parental rights to another child had been terminated within three years of the CHIPS order. The court therefore granted partial summary judgment in favor of the Department. It then terminated Nicole’s parental rights.
¶5 Nicole appealed. With our permission, she filed a motion for postdisposition relief, and argued the order terminating her parental rights should be reversed because Wis. Stat. § 48.415(10) was unconstitutional on its face and as applied to her. The circuit court disagreed, and denied the motion. She now appeals the order denying that motion.
DISCUSSION
¶6 This appeal raises two issues: (1) whether Wis.
Stat. § 48.415(10) is constitutional on its face; and (2) whether
it is constitutional as applied to Nicole.
The constitutionality of a statute presents a question of law that we
review independently. Dane
1. Whether Wis. Stat. § 48.415(10) is
unconstitutional on its face
¶7 When a statute impinges on a fundamental liberty interest, the
statute must be narrowly tailored to a compelling state interest.
¶8 Nicole argues Wis. Stat. § 48.415(10) is not narrowly tailored to the state’s interest because it uses prior parental unfitness as a proxy for current unfitness. She therefore contends the statute is unconstitutional on its face. We disagree.
¶9 Our supreme court recently rejected an argument similar to
Nicole’s in Ponn P. There, Ponn P.
argued the statute providing that continued denial of physical placement or
visitation is grounds for termination unconstitutionally permitted courts to
terminate parental rights without specifically finding the parent unfit. Ponn P., 279
¶10 The supreme court disagreed, concluding that the statutory “step-by-step
process” was “sufficient to show that [the statute] is narrowly tailored to
advance the State’s compelling interest of protecting children against unfit
parents….”
¶11 A similar process narrowly tailors Wis. Stat. § 48.415(10) to the state’s interest here. First, the Department must show the child has been found to be in need of protection or services on one of three specific grounds—(1) abandonment, (2) abuse, or (3) neglect that seriously endangers the child’s physical health—each of which bears directly on the parent’s fitness. This ensures that § 48.415(10) can only be triggered by the most egregious situations requiring the child’s protection.
¶12 Second, the parent must have had his or her parental rights to another child involuntarily terminated within three years of the CHIPS order. This prior involuntary termination could only have occurred if a court or jury first found the parent unfit, and the court subsequently concluded the evidence warranted terminating parental rights. See Wis. Stat. § 48.427(2). Thus, Wis. Stat. § 48.415(10) ensures courts will have made specific findings reflecting the parent’s fitness over a short span of time before the parent’s rights can be terminated.
¶13 Further, even if a court or jury finds grounds exist for terminating parental rights under Wis. Stat. § 48.415(10), the court still has discretion to dismiss the petition if it finds the evidence does not warrant termination. Wis. Stat. § 48.427(2). We conclude this statutory scheme is sufficiently narrowly tailored to the state’s interest in protecting children from unfit parents.
2. Whether Wis. Stat. § 48.415(10) is
unconstitutional as applied
¶14 We also conclude the statute is not unconstitutional as applied
to Nicole. Nicole relies on our supreme
court’s decision in Kelli B. to argue that Wis.
Stat. § 48.415(10) is unconstitutional as applied to her because it
created an irrebuttable presumption she was unfit to parent Tatiana. In Kelli B., the court held a statute providing
that incestuous parenthood is grounds for termination of parental rights was unconstitutional
as applied because it “renders people like Kelli per se unfit solely by virtue
of their status as victims [of incest].”
Kelli B., 271
¶15 The facts here are nothing like those in Kelli B. Nicole’s unfitness to parent Tatiana is not
due to her status as a victim. Rather,
it derives from her own history of consistently failing to meet the standards required
by
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.