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COURT OF APPEALS
DECISION
DATED AND FILED
October 14, 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 Nos.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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No. 2009AP1472
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In re the termination of parental rights to Cameron W.,
a person under the age of 18:
Marathon County Department of Social Services,
Petitioner-Respondent,
v.
Lynn W.,
Respondent-Appellant,
Ronald W.,
Respondent.
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No. 2009AP1473
In re the termination of parental rights to Jasmine W., a person
under the age of 18:
Marathon County Department of Social Services,
Petitioner-Respondent,
v.
Lynn W.,
Respondent-Appellant,
Ronald W.,
Respondent.
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No. 2009AP1474
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In re the termination of parental rights to
Rebecca W., a person under the age of 18:
Marathon County Department of Social Services,
Petitioner-Respondent,
v.
Lynn W.,
Respondent-Appellant,
Ronald W.,
Respondent.
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APPEALS
from orders of the circuit court for Marathon
County: thomas
cane, Judge. Affirmed.
¶1 BRUNNER, J. Lynn
W. appeals from judgments terminating her parental rights to her three minor
children under Wis. Stat. § 48.415(4). She asserts that the conditions of return in
the underlying no-contact order violated her substantive due process right to
parent her children because her cognitive disability prevented her from
satisfying the conditions. We conclude
that § 48.415(4) as applied to Lynn is
narrowly tailored to achieve the State’s compelling interest in protecting
children from unfit parents and affirm the orders.
BACKGROUND
¶2 This appeal arises out of petitions by the Marathon County
Department of Social Services (Social Services) to terminate Lynn W.’s parental
rights to Cameron W., Jasmine W., and Rebecca W., her three minor
children. As grounds for termination, the
petitions alleged continuing denial of periods of physical placement or
visitation under Wis. Stat. § 48.415(4).
¶3 Social Services initiated a preliminary investigation after
receiving reports that the children were frequently left out in the cold
without proper clothing. The
investigating social worker observed signs of substantial neglect and became
concerned about the children’s nutrition and supervision. On March 9, 2006, Social Services
removed the children from the family home.
Social Services later learned that Lynn
was largely responsible for raising the children. Their father, Ronald W., resided with a
girlfriend at the time of removal and maintained minimal contact with the
children.
¶4 After the children were removed, Carrie Krueger, a Social
Services employee, conducted about forty-eight supervised visits between the
parents and the children. The visits
were designed to teach Lynn
parenting skills while ensuring the children’s safety. Social Services was aware of Lynn’s
cognitive disability, and Krueger modified the supervised visits to accommodate
Lynn. These modifications included demonstrations
of appropriate behavior and “lots of repetition.” Still, the visits were “chaotic.” Dr. Steven Benson, a clinical psychologist who
previously evaluated Ronald and Lynn, recommended that supervised visitation
cease because the visits were too traumatic for the children. The circuit court entered a no-contact order
on October 26, 2006.
¶5 In early 2007, the children were found to be in need of
protection or services (CHIPS). The court found the parents unable to provide
care for the children under Wis. Stat. § 48.13(10). The court denied Lynn and Ronald visitation
rights and placed the children in a foster home. The parents were warned that continuing
denial of periods of physical placement or visitation would provide a ground
for termination of parental rights. The order also required Ronald and Lynn to
satisfy individual conditions for re-establishing contact with the
children. The order provided that Social
Services would periodically reassess the visitation plan “as the parents are
able to demonstrate their ability to meet the conditions outlined for them.”
¶6 The CHIPS order identified several conditions of return
applicable to Lynn. The first condition required her to
demonstrate the ability and desire to parent the children effectively during
her participation in a Parenting Education Program. Another condition required her to maintain a
stable residence for six months and provide adequate necessities for the
children. A third condition required her
to cooperate with Social Services by meeting with her social worker as
scheduled, giving the worker access to her home, releasing information as
requested and notifying Social Services of changes to her address or phone
number.
¶7 The final condition in the order required Lynn to attend and “actively engage in”
individual counseling sessions to address numerous emotional and parenting
issues. The counseling requirement was
intended to help her address emotional issues, including low self-esteem and
aggressive behavior:
[Lynn] will also learn to identify and express emotion,
and know [how] that relates to parenting and relationships, address issues of
low self-esteem, and learn to develop a more positive view of her self[-]worth. … Lynn will also need to
work on issues of anger, aggressive behaviors, and dangerous acts,
demonstrating the understanding of her actions, and demonstrating the ability
to control those actions.
The counseling requirement was
also designed to help her learn and understand appropriate parental behavior:
This will also include identifying appropriate hygiene
needs and demonstrating appropriate hygiene on a daily basis. Lynn
shall also discuss with her therapist whatever assignment and agenda she has
received from the Parent Aide, give concrete examples of how that particular
subject would … be incorporated if the children were in her
home. … Lynn
will also address the issues of providing nurture to her children, demonstrated
by identifying nurturing behaviors and expressing nurturing behaviors towards
others. She will be able to describe
concrete situations, and give examples of appropriate gestures of nurture,
specifically as to how it relates to the children. She will learn to identify how to comfort and
soothe others in need, and describe how that would be incorporated into her
home with her own children.
¶8 Social Services devoted considerable resources to assist Lynn in satisfying the conditions
outlined in the CHIPS order. Social
Services reviewed Dr. Benson’s evaluation and recommendations with Lynn to help her
understand the improvements she was expected to demonstrate. The agency set up individual counseling
sessions for Lynn
and conducted phone conferences with her and her therapist to convey
expectations and gauge progress. Lynn was referred to the
Community Support Program for employment training and assistance with daily
life tasks like housekeeping, cleaning, and shopping. Social Services maintained contact with
Lynn’s case manager at the Community Support Program and provided
transportation to her appointments, and Krueger even attended an appointment
with Lynn to make her feel more comfortable.
Social Services also arranged individual parenting instruction sessions
and hired a protective payee for Lynn
to help her make timely payments and manage her money.
¶9 Social Services provided each of these services “with the notion
in our minds that Lynn
does have a cognitive disability, and we need to gear everything toward her
understanding and her ability to learn.”
Social Services sought Dr. Benson’s advice regarding approaches he
thought would be effective, and implemented these recommendations in separate
meetings with Lynn. Krueger and other Social Services employees
also received specific training on handling parents with cognitive
disabilities. Krueger frequently used
methods Social Services considered more appropriate for parents with cognitive
disabilities, including speaking with a basic vocabulary, role modeling,
demonstration, and repetition. She also
used charts, pictures and examples when communicating with Lynn.
Each of Lynn’s
therapists was advised of her special needs and limitations.
¶10 Despite these efforts, Social Services concluded that Lynn’s progress did not
warrant a reevaluation from Dr. Benson to determine whether visitation could
resume. For about six months after entry
of the CHIPS order, Social Services had infrequent contact with Lynn and was unaware of
her location. Although Lynn would call and schedule parenting
appointments during this period, she would not show up for them. Meanwhile, Ronald attended fifteen appointments. Lynn
refused to participate in the Community Support Program.
¶11 Lynn
also failed to make any meaningful progress toward her therapy goals. Although she attended the individual
counseling sessions, Social Services concluded she did not “want to deal with
the issues the therapist[s] wanted her to deal with.” Lynn’s
improvement was also hindered by her frequent therapist substitutions; in all, Lynn saw four different
counselors. While Lynn’s
therapists believed she was capable of making progress, no therapist believed Lynn made sufficient
progress to warrant reevaluation.
¶12 Social Services filed petitions to terminate Lynn’s and
Ronald’s parental rights to their three children on September 15, 2008. On December 3, 2008, Social Services filed
motions and supporting affidavits for summary judgment on the ground for
termination under Wis. Stat. § 48.415(4). Lynn’s
attorney opposed the motion, asserting that § 48.415(4) was
unconstitutional as applied to her. The
court granted Social Services’ summary judgment motion with respect to Ronald
at a hearing on January 20, 2009.
¶13 At the January 20 hearing, Lynn’s attorney argued that the use of Wis. Stat. § 48.415(4) to
terminate Lynn’s parental rights was
unconstitutional unless Social Services could prove it made reasonable efforts
to accommodate Lynn’s
cognitive disabilities. Although Lynn conceded that she
was bound for over a year by an unmodified dispositional order terminating
contact with her children, her attorney claimed her disability prevented her
from comprehending and meeting the conditions contained in the CHIPS order. The court concluded a fact-finding hearing
was necessary to ascertain the extent of Social Services’ accommodation and
denied summary judgment with respect to Lynn.
¶14 At the fact hearing, the court heard testimony from Krueger and
another Social Services employee, Susan Glodoski. Glodoski testified that Dr. Benson’s
evaluation revealed Lynn
had an IQ of 66 and suffered from mild mental retardation. Glodoski acknowledged that Lynn’s
cognitive disability was “the major obstacle that we’ve been dealing with in
trying to complete the recommendations and to help Lynn to learn and understand what she needed
to, as far as being a parent.” Although
Glodoski testified that counseling would not necessarily correct Lynn’s mental
disabilities, she noted that a person with an IQ of 66 is considered
educable. Glodoski and Krueger detailed
Social Services’ efforts to reunite Lynn with
her children and noted Lynn’s
failure to progress despite their attempts.
¶15 The circuit court concluded the conditions in the CHIPS order
were obtainable and that Social Services made reasonable efforts to help Lynn comply with
them. In the court’s view, Lynn “declined or simply
did not or would not successfully complete what the department was asking in
meeting her parenting needs or skills.”
The court determined that grounds existed for the termination of
parental rights and, at a separate dispositional hearing, found that
termination of parental rights was in the children’s best interests.
DISCUSSION
¶16 Lynn’s
sole argument is that application of the ground in Wis. Stat. § 48.415(4) to terminate her parental rights
violated her constitutional right to substantive due process. This issue is a question of law subject to
independent appellate review. Monroe County DHS
v. Kelli B., 2004 WI 48, ¶16, 271 Wis. 2d 51, 678 N.W.2d 831. We presume that § 48.415(4) is constitutional
and resolve any doubt in favor of upholding its constitutionality. Id. To the extent this appeal requires us to
interpret the statute, we will avoid any interpretation that creates a
constitutional infirmity. See Kenosha
County DHS v. Jodie W., 2006 WI 93, ¶20, 293 Wis. 2d 530, 716 N.W.2d 845. In resolving the question presented, the
circuit court made findings of fact.
These findings will be sustained unless they are so clearly erroneous as
to go “against the great weight and clear preponderance of the evidence.” Phelps v. Physicians Ins. Co., 2009
WI 74, ¶39, 768 N.W.2d 615 (citation omitted).
¶17 Substantive due process rights flow from the Fourteenth
Amendment of the United States Constitution and from article I, sections 1 and
8, of the Wisconsin Constitution. Jodie
W., 293 Wis.
2d 530, ¶39. This form of due process
protects individuals from government actions that are arbitrary or wrong
without regard to the fairness of the procedures used to implement them. Kelli B., 271 Wis. 2d 51, ¶19. Substantive due process demands that a
statute interfering with a fundamental liberty interest be narrowly tailored to
advance a compelling state interest justifying the interference. Jodie W., 293 Wis. 2d 530, ¶39.
¶18 A parent’s fundamental right to care for and maintain custody
of his or her own child is well-recognized.
See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Ann M.M. v. Rob S., 176 Wis. 2d 673, 686, 500
N.W.2d 649 (1993). A parent establishes
this fundamental liberty interest by living with, and holding custody of, the
child. Kelli B., 271 Wis. 2d 51, ¶24. Social Services does not dispute that Lynn has established a
fundamental interest in parenting her children, and therefore we must subject
the application of Wis. Stat. § 48.415(4)
to strict scrutiny review.
¶19 Wisconsin Stat. § 48.415(4) is one of
twelve grounds for termination of parental rights. The state’s concern for the welfare of
children with unfit parents animates these grounds and serves as the state’s compelling
interest. Jodie W., 293 Wis. 2d 530, ¶41. There is also a temporal component to the
state’s interest “that promotes children’s welfare through stability and
permanency in their lives.” Dane County DHS
v. Ponn P., 2005 WI 32, ¶32, 279 Wis.
2d 169, 694 N.W.2d 344. The sole issue
in this case is, therefore, whether the statute as applied to Lynn is narrowly tailored to achieve the
State’s compelling interest in protecting Cameron, Jasmine, and Rebecca.
¶20 Our supreme court has already sustained the constitutionality
of Wis. Stat. § 48.415(4)
against a facial attack, concluding that the statutory process underlying the
ground for termination set forth in Wis.
Stat. § 48.415 was narrowly tailored. Ponn P., 279 Wis. 2d 169, ¶32. In that case, the petitioner asserted the
subsection violated his substantive due process right because it did not
require the individualized determination of unfitness mandated by Stanley. Ponn P., 279 Wis. 2d 169, ¶22. The court held that “the cumulative effect of
the determinations made at each [step in the termination process] causes the
finding made under § 48.415(4) to amount to unfitness.” Id.,
¶32.
¶21 Lynn
correctly points out that the supreme court left open the possibility of a
successful as-applied challenge to Wis.
Stat. § 48.415(4). See id., ¶25. The petitioner in Ponn P. argued that the
statute was constitutionally infirm unless it was modified to require a court
to make a finding regarding the reasons a parent failed to have a no-contact
order modified during the year or more it had been in effect. Id. The court concluded that Ponn P. waived his
right to challenge the validity of the no-contact order because he pled no
contest to the petition to terminate his parental rights. Id. Lynn
now squarely presents us with a proper as‑applied challenge to the
constitutionality of § 48.415(4).
¶22 According to Lynn,
termination of her parental rights was a foregone conclusion. She asserts that her disability prevented her
from satisfying the conditions established in the CHIPS order and, as a result,
Social Services knew the order would not be modified within the one-year time
frame under Wis. Stat. § 48.415(4). In short, Lynn claims that she was denied substantive
due process because her unfitness determination hinged upon improvements that
she could never make.
¶23 If Lynn was truly prevented from reuniting with her children by
impossible conditions of return, her argument may have merit. See Jodie W., 293 Wis. 2d 530, ¶51 (Wis. Stat. § 48.415(2) unconstitutional where parent is
incarcerated and the sole ground for termination of parental rights is that the
child continues to require protection and services due to the
incarceration). In Jodie W., the supreme
court held that the circuit court erred by finding Jodie an unfit parent
without regard to her actual parental activities. Id.,
¶52. Indeed, the court could find “no
evidence that the conditions of return were created or modified for Jodie
specifically.” Id.
¶24 The circuit court in this case recognized the potential
constitutional issue and held a hearing at which it heard evidence on Lynn’s ability to comply
with the conditions listed in the CHIPS order.
The court found the conditions “obtainable,” but determined that Lynn was simply unwilling
to satisfy them. It concluded that
Social Services made every conceivable effort to help Lynn comply with the conditions listed in the
CHIPS order. It also found that Social
Services accounted for Lynn’s
limitations and disabilities when making these efforts. The court went so far as to note that it
“[did not] know what else the department could have done in this case.” Although isolated portions of testimony at
the hearing support Lynn’s
view, the court’s decision is consistent with the totality of the evidence
presented. Essentially, Lynn asks us to overturn the circuit court’s
findings of fact, but those findings are not clearly erroneous and we cannot do
so.
¶25 Moreover, the conditions of return were tailored to address
Social Services’ concerns regarding Lynn’s
interaction with her children. Lynn primarily attacks the
conditions requiring her to demonstrate appropriate parental behavior and
progress in individual therapy sessions. We conclude that specific facts in the record
support each condition.
¶26 The record is replete with circumstances justifying Lynn’s required
participation in the Parenting Education Program. Glodoski testified that Lynn would not play with her children and
never learned how to give praise. She
also noted Lynn’s inability to empathize with her
children, citing as one example an occasion in which Lynn scolded her son for crying after he
injured his arm. Social Services also
recognized nutritional deficiencies; for example, at the time of removal, Lynn’s two older children
were still consuming liquids through bottles even though they should have been
eating solid foods by that point.
Glodoski also identified several specific instances in which Lynn failed to account for
her children’s safety. Social Services’
need to see an improvement in Lynn’s
personal hygiene was motivated by the fact that Lynn, Ronald and the children
often appeared unkempt and in need of bathing and clean clothing. These circumstances justify both the
education program and the portion of the counseling condition requiring Lynn to demonstrate
appropriate parental behavior. Neither
condition is manifestly unjust, arbitrary, or oppressive; both were designed to
remedy specific instances of neglect.
¶27 Facts specific to Lynn
also support the remaining requirements of the counseling condition. The portion requiring Lynn
to address her self-esteem and relationship issues reflects the duress Lynn’s marital
relationship placed upon her and the fact that she became suicidal at
times. Lynn’s abusive behavior toward Ronald and his
child by another marriage justified the requirement that she demonstrate
control over aggressive behaviors and dangerous actions. This requirement was also the result of an
incident that led to an arson charge in which Lynn became very angry with Ronald and
started his clothes on fire. As the fire
spread and the house burned, Lynn
ran outside without calling 911. She
also did not inform a family with a newborn baby in the apartment below
her. These very serious incidents
demanded attention, and the conditions established by the CHIPS order were
designed to address them.
¶28 In sum, we are satisfied that the ground for termination under Wis. Stat. § 48.415(4) as applied
to Lynn is
narrowly tailored to achieve the State’s compelling interest in protecting
children from unfit parents. The circuit
court’s determination that Social Services established obtainable conditions
and made every reasonable effort to aid Lynn’s
reunion with her children is not clearly erroneous. Further, the challenged conditions of return
were designed to address specific problems with Lynn’s care for her children. Thus, we conclude that the statute is not
unconstitutional as applied.
By the
Court.—Orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(b)(4).