COURT OF APPEALS DECISION DATED AND FILED April 21, 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 orders of the circuit court for
¶1 BRENNAN, J.[1] Robert H. appeals from a judgment terminating his parental rights to his daughter, Vanessa P. (V.P.) born October 15, 2004, and his son, Robert P. (R.P.) born January 21, 2006,[2] on the grounds that both children were born of incestuous parenthood, contrary to Wis. Stat. § 48.415(7) (2007‑08), and it was in the best interests of the children to terminate parental rights.[3] Robert claims that termination based on § 48.415(7), as applied to him, violates his constitutional right to substantive due process. Because the statute as applied does not violate Robert’s right to substantive due process, we affirm.
Background
¶2 It is undisputed that Robert, and the children’s mother, Denice P., are full biological brother and sister. Robert and Denice stated that they did not know about their biological relationship at the time either V.P. or R.P. was conceived, but the trial court found that the true biological connection was known, and that finding is not challenged on appeal. When Robert and Denice were children, each was removed from the home of their biological mother and placed into foster care. Robert was placed with Mr. and Mrs. H., when he was two years old, and was eventually adopted by the H.’s. Denice was placed with Ms. A. and other foster placements.
¶3 The H.’s would host family picnics for Robert’s biological
family twice a year and Denice would sometimes attend. When Robert was eight years old, the H.’s
moved away from
¶4 The court heard a variety of scenarios as to their reunion: through a meeting at Pick ‘n Save, through their biological father, Donald P., or simply running into each other on the street. A short time after graduating from Central, Robert asked Mrs. H. if it would be okay for him to go live with his sister, Denice, to help her care for her son, Mikey. Robert moved in with Denice. Both Mrs. H. and Robert’s grandmother advised Robert that it would be morally wrong to have sex with Denice because she was his biological sister. Despite the warning, Robert and Denice began a sexual relationship, which resulted in the birth of V.P. and R.P.
¶5 In July 2006, both V.P. and R.P. were removed from the home
as children in need of protection or services, and placed in foster care.[4] The Bureau of Milwaukee Child Welfare
provided services to Robert. In July and
September of 2006, Robert told
¶6 On September 19, 2006, the State filed a petition seeking to terminate Robert’s parental rights to both children on the grounds that they were the product of incestuous parenthood, contrary to Wis. Stat. § 48.415(7). A variety of procedural hearings and delays, not pertinent to this appeal, occurred.
¶7 The trial court ordered Robert to undergo a competency exam by psychologist, Dr. Kenneth Sherry. Dr. Sherry found Robert not competent and diagnosed him as having mild mental retardation and adjustment disorder with mixed mood. Robert did not contest the finding, and a guardian ad litem was appointed on his behalf. Robert then filed motions for dismissal based, in part, on his constitutional argument, and the State filed a motion for partial summary judgment as to the grounds phase of the termination petition.
¶8 After additional proceedings and an evidentiary hearing on the grounds phase, the trial court granted the State’s motion for partial summary judgment,[5] finding that grounds existed to terminate parental rights; namely, the incestuous parenthood ground of Wis. Stat. § 48.415(7). The trial court, as noted above, also found Robert’s and Denice’s claims of ignorance as to their biological connection to be incredulous. The case proceeded to a contested dispositional hearing, which was held on multiple dates. In May 2008, the trial court found that termination of parental rights was in the best interests of V.P. and R.P. Orders terminating Robert’s parental rights were entered on July 14, 2008. Robert now appeals from those orders.
Discussion
¶9 Robert raises a single argument in this appeal: Wis. Stat. § 48.415(7), as applied to him, denies him substantive due process because none of the compelling interests the State has in discouraging incestuous parenthood apply under the circumstances in this case. The trial court rejected Robert’s constitutional claim, finding that the State had legitimate compelling interests. We agree. Section 48.415(7) provides:
Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury may make a finding that grounds exist for the termination of parental rights. Grounds for termination of parental rights shall be one of the following:
….
(7) Incestuous parenthood. Incestuous parenthood, which shall be established by proving that the person whose parental rights are sought to be terminated is also related, either by blood or adoption, to the child’s other parent in a degree of kinship closer than 2nd cousin.
¶10 The constitutionality of a statute is a question of law,
reviewed de novo. State v. Allen M., 214
¶11 Instead, Robert contends that even though he and Denice knew their true biological relationship, termination on the ground of incestuous parenthood is unfair as applied to him because he grew up in an adopted home away from Denice, has a different last name than Denice and, thus, in essence, they did not grow up as biological siblings normally would. Although these factors may have provided justification for Denice and Robert to engage in a sexual relationship, none of the factors change the absolute fact that they are biological siblings and none of the factors render Wis. Stat. § 48.415(7) unconstitutional on substantive due process grounds.[6]
¶12 Substantive due process bars state action that violates
fundamental rights and liberty interests, regardless of procedural fairness. See Monroe
County DHS v. Kelli B., 2004 WI 48, ¶19, 271
¶13 Like in Allen M. and Kelli B., our first determination
in this case involves the correct level of scrutiny to apply in evaluating the
substantive due process challenge here.
If a fundamental liberty interest is at stake, we must apply strict
scrutiny, but if not, then the rational basis standard applies. See Kelli
B., 271
¶14 We have already declared the incestuous parenthood ground for
termination to be constitutional in Allen M., 214
¶15
warranted under the standards assures full, substantive due process.” Allen M., 214
¶16 Robert argues that none of the compelling state interests of deterring incestuous relationships apply to him, because Robert and Denice were raised in separate households with different adopted parents and grandparents. We are not convinced.
¶17 The State has a compelling interest in protecting children from
the adverse effects of incestuous relationships and the dysfunctional family
that a sibling parentage would provide.
Incest has been deemed unacceptable, immoral and criminal. Our statutes declare that incest is a serious
crime, see Wis. stat § 944.06, and prohibits marriage amongst
family members, see Wis. stat. § 765.03. The purposes behind such laws include
preventing genetic defects, preventing the psychological damage, emotional harm
and “fundamentally disordered circumstances in which the child of an incestuous
relationship will be raised.” Allen
M., 214
¶18 Robert asserts that the concern of genetic abnormalities is
neutralized once the child is born and should have no impact. We cannot agree. A similar argument was rejected by this court
in Allen
M.: “Not only does the State’s
compelling interest in the protection of that child continue, but the State’s
equally compelling interest in deterring additional incestuous parenthood, by
those parents and others, remains.…
Thus, § 48.415(7), Stats.,
further promotes the State’s compelling interest in deterring incest by, in
effect, warning those who might contemplate incest that if they produce a
child, they will not necessarily be permitted to parent the child.” Allen M., 214
¶19 We are also not persuaded by Robert’s complaint that the trial court used additional information at the dispositional hearing, which was not presented at the grounds phase. Part of what makes the TPR statutes fair is the opportunity afforded the parent at the dispositional hearing to present evidence demonstrating that it is in the best interest of the child to not terminate the parental rights. Robert complains that the trial court here based its dispositional ruling, in part, on the fact that V.P. and R.P. have special needs and Robert has cognitive delays.
¶20 To the contrary, the trial court properly considered the children’s special needs and Robert’s cognitive delays at the dispositional hearing. Wisconsin Stat. § 48.426(3) sets forth factors for the trial court to consider in rendering its dispositional decision. Among those factors are: “age and health of the child” and “whether the child has substantial relationships with the parent.” The children’s special needs are pertinent to their health and Robert’s cognitive delays are relevant to what kind of relationship he is capable of establishing with others. Thus, the trial court’s consideration of these factors was proper.
¶21 Because the statutory scheme provides the trial court the discretion to not terminate parental rights even if grounds exist to do so, we hold that Wis. Stat. § 48.415(7) is not unconstitutionally applied on substantive due process grounds in this case. The trial court here, considered the circumstances, including the fact that Robert and Denice did not grow up as typical biological siblings would. The trial court considered all the factors set forth in Wis. Stat. § 48.426 to assess whether it would be better for V.P. and R.P. to remain with Robert despite the incestuous parenthood. Thus, the trial court properly exercised its discretion in terminating Robert’s parental rights.
¶22 Based on the foregoing, we conclude that Robert has failed to prove beyond a reasonable doubt that the statute, as applied, violates his substantive due process. Termination of Robert’s parental rights under the statute was fair and was narrowly tailored to advance the State’s compelling interest underlying the statute.[9]
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] By order dated January 13, 2009, we granted Robert’s motion to consolidate the appeals with respect to both V.P. and R.P.
[3] The trial court terminated both Robert’s parental rights and the parental rights of his sister, Denice. This appeal addresses only Robert’s challenge to the termination. Denice appealed the orders terminating her parental rights via a consolidated no-merit appeal, No. 2008AP3084-NM (Vanessa) and No. 2008AP3085-NM (Robert).
[4] Michael P., Denice’s first-born child, was also removed from her home at the same time. Michael is not involved in this action.
[5] Summary
judgment is appropriately granted on the grounds phase to a TPR “where the
requirements of the summary judgment statute and the applicable legal
standards … have been met.” Steven
V. v. Kelley H., 2004 WI 47, ¶5, 271
[6] Robert
does not specify whether he is relying on the due process clause of the
Fourteenth Amendment to the United States Constitution or Article I, section 1
of the Wisconsin Constitution. See U.S.
Const. amend. XIV; Wis. Const.
art. I, § 1. Regardless, the
analysis is the same. See Reginald
D. v. State, 193
[7] Robert
argues that the facts here are more akin to
[8] The record reflects that V.P. and R.P. will be monitored by Children’s Hospital until 2011 as a result of their incestuous parentage to watch for any problematic genetic markers.
[9] We
note that Robert declined to file a reply brief. That which is not refuted is deemed conceded. See
Charolais
Breeding Ranches, Ltd. v. FPC Securities Corp., 90