PUBLISHED OPINION
Case No.: 95-3062
Complete
Title
of
Case:IN THE INTEREST OF
KODY D.V.,
A PERSON UNDER THE AGE OF 18:
MONROE COUNTY,
Petitioner-Appellant,
v.
JENNIFER V.,
Respondent-Respondent.
Submitted
on Briefs: January 17, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: March 4, 1996
Opinion
Filed: March
4, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Monroe
(If
"Special" JUDGE: Michael
J. Rosborough
so
indicate)
JUDGES: Eich,
C.J., Dykman and Vergeront, JJ.
Concurred:
Dissented: Dykman,
J.
Appellant
ATTORNEYSFor the petitioner-appellant the
cause was submitted on the brief of Kerry Sullivan-Flock of Monroe
County Corporation Counsel.
Respondent
ATTORNEYSFor the respondent-respondent the
cause was submitted on the brief of Penny J. Precour of Mubarak &
Radcliffe, S.C. of Tomah.
COURT OF
APPEALS DECISION DATED AND
RELEASED March
4, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3062
STATE OF WISCONSIN IN
COURT OF APPEALS
IN THE
INTEREST OF KODY D.V.,
A
PERSON UNDER THE AGE OF 18:
MONROE
COUNTY,
Petitioner-Appellant,
v.
JENNIFER
V.,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Monroe County: MICHAEL J. ROSBOROUGH, Judge.
Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,
J.[1]
Monroe County appeals from an order dismissing without prejudice its petition
for termination of Jennifer V.'s parental rights to her minor child, Kody. The petition asserted § 48.415(5)(a), Stats., as a ground for
termination--that the parent has caused death or injury to a child resulting in
a felony conviction. The issue
presented on appeal is whether such a conviction may be the ground for
termination of parental rights when an appeal of the conviction is still
pending. We conclude that the term
"conviction," as used in § 48.415(5)(a), means a conviction after the
right of appeal has been exhausted. We
therefore affirm the dismissal.
The
petition for termination of parental rights alleged the following. Jennifer was found guilty by a jury on
November 12, 1994, of recklessly causing great bodily harm to Kody, in
violation of § 948.03(3)(a), Stats.,
a felony. The crime was committed on or
about January 6, 1994. Jennifer was
sentenced on March 8, 1995, to five years in the Wisconsin State Prison
System. A certified copy of the amended
judgment of conviction was filed with the petition.
Monroe
County moved for summary judgment[2]
on the ground that there was no factual dispute that Jennifer was convicted as
alleged in the petition and that therefore, as a matter of law, a ground for
termination of parental rights under § 48.415(5)(a), Stats., existed.[3] At the hearing on the motion, Jennifer's counsel
informed the court that the process for appealing the conviction had been
initiated and the present status was that the court of appeals had extended the
time to complete and file the transcript in the criminal proceeding. Her counsel argued that the motion for
summary judgment was "premature" as long as an appeal was
pending. The trial court concluded that
a conviction was not a conviction within the meaning of § 48.415(5)(a)
until all appellate remedies were exhausted.
It denied the motion for summary judgment and dismissed the petition,
without prejudice, so that the petition could be filed later if the conviction
were affirmed.
Monroe
County argues on appeal that "conviction" in § 48.415(5)(a), Stats., means a conviction at the trial
level and that it is irrelevant whether an appeal is pending or, by
implication, what the decision of the appellate court is. Jennifer argues that conviction means a
final conviction after an appeal.
"Conviction" is not defined in ch. 48, Stats.
The
interpretation of a statute presents a question of law, which we review de
novo. State v. Wittrock,
119 Wis.2d 664, 669, 350 N.W.2d 647, 650 (1984). The purpose of statutory construction is to ascertain the intent
of the legislature and, in doing so, our first resort is to the language of the
statute itself. State v. Eichman,
155 Wis.2d 552, 560, 456 N.W.2d 143, 146 (1990). If the statutory language is not ambiguous, that is the end of
our inquiry; we simply apply the language to the case at hand. Kelley Co. v. Marquardt, 172
Wis.2d 234, 247, 493 N.W.2d 68, 74 (1992).
If the statute is ambiguous, meaning that more than one reasonable
meaning can be attributed to it, then we examine the scope, history, context,
subject matter and object of the statute in order to determine the legislative
intent. Id. at 247-48,
493 N.W.2d at 74.
Section
48.415(5), Stats., provides as
one ground for termination of parental rights:
Child Abuse. Child abuse
may be established by a showing that the parent has exhibited a pattern of
abusive behavior which is a substantial threat to the health of the child who
is the subject of the petition and a showing of either of the following:
(a) That the parent has caused death or
injury to a child or children resulting in a felony conviction.
(b) That, on
more than one occasion, a child has been removed from the parent's home by the
court under s. 48.345 [disposition of a child adjudged in need of protection or
services (CHIPS)] after an adjudication that the child is in need of protection
or services and a finding by the court that sexual or physical abuse was
inflicted by the parent.[4]
Before
construing the term "conviction" in para. (a), we must address the language preceding
paras. (a) and (b). This language
plainly requires that, for all terminations under § 48.415(5), Stats., there must be a showing that
the parent has exhibited a pattern of abusive behavior which is a substantial
threat to the health of the child. In addition,
there must be a showing under either para. (a) or para. (b).
The
petition must state the grounds for termination relied on under § 48.415, Stats., and "a statement of the
facts and circumstances which the petitioner alleges establish these
grounds." Section 48.42(1)(c)2, Stats.
In reviewing the sufficiency of a pleading in a juvenile court
proceeding, we may draw reasonable inferences from the allegations in the
petition. In re L.A.T.,
167 Wis.2d 276, 284, 481 N.W.2d 493, 497 (Ct. App. 1992). The petition does not contain any
allegations that Jennifer engaged in a pattern of abusive behavior. Nor do the allegations give rise to a
reasonable inference that Jennifer has exhibited a pattern of abusive behavior
toward Kody because only a single crime, committed on or about January 6, 1994,
is alleged.
This
deficiency in the petition was not argued before the trial court, nor is it
argued on appeal. Apparently, both
parties are of the view that a conviction, however defined, for a felony that
caused death or injury to a child constitutes a ground for termination of
parental rights. That is
incorrect. Since the petition does not
contain any statements that can be reasonably construed as alleging a pattern
of abusive behavior which is a substantial threat to the health of Kody, the
petition could have properly been dismissed for that reason.
We
will proceed, nonetheless, to address the issue of the proper construction of
the term "conviction."
Affirming a dismissal on the ground that the petition does not allege a
pattern of abusive behavior may result in the filing of another petition that
alleges both a pattern of abusive behavior by Jennifer and contains the same
allegations regarding the conviction.
The issue of the construction of the term "conviction" was
decided by the trial court and has been briefed by the parties. In the interest of avoiding unnecessary
delay in a TPR proceeding, we turn to that issue now.
We
conclude that the meanings of conviction offered by Monroe County and by
Jennifer are both reasonable in the context of § 48.415(5), Stats.
A judgment of conviction is entered by the trial court after a verdict
of guilty by the jury, a finding of guilty by the court in cases where a jury
is waived, or a plea of guilty or no contest.
Section 972.13(1), Stats. It is therefore reasonable to interpret
"conviction" in § 48.415(5)(a) as the judgment of conviction entered
by the trial court, as Monroe County contends.
On the other hand, an appeal is an integral part in our judicial system
for a final adjudication of guilt or innocence and serves to protect a
defendant against errors in the criminal proceedings. State v. McDonald, 144 Wis.2d 531, 536-37, 424
N.W.2d 411, 413-14 (1988). A defendant
has both a statutory and a constitutional right to an appeal. Id. at 536-37, 424 N.W.2d at
414. It is therefore reasonable to
interpret § 48.415(5)(a) to mean a conviction after the completion of the
appeal as of right.
We
have found the term conviction ambiguous in another context. In State v. Wimmer, 152 Wis.2d
654, 449 N.W.2d 621 (Ct. App. 1989), we were presented with two meanings for conviction
as used in the habitual criminality statute, § 939.62, Stats.: (1) a finding of guilt (in that case, after a guilty plea),
and (2) the entire legal process resulting in a judgment and
sentence. Id. at 658, 449
N.W.2d at 622. We decided that there
were at least two possible meanings of conviction and the term was therefore
ambiguous. Id. We concluded that, in the context of that
statute, the correct meaning was a finding of guilt. Id. at 659, 449 N.W.2d at 622. Wimmer does not resolve the issue
presented here because it does not address the effect of a pending appeal on
the meaning of conviction.[5]
We
must consider the nature of TPR proceedings, including the constitutional
implications in determining which of these meanings the legislature intended.[6] A parent's interest in his or her child is a
fundamental liberty interest that is protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. In re Philip W., 189 Wis.2d
432, 436, 525 N.W.2d 384, 385 (Ct. App. 1994).
The State's ability to deprive a person of that fundamental right must
be justified by a compelling state interest and the infringement on the
fundamental liberty to one's child must be narrowly tailored to serve that
compelling interest. In re Amanda
A., 194 Wis.2d 627, 639, 534 N.W.2d 907, 911 (Ct. App. 1995). The State's power to terminate parental
rights requires that the power be justly exercised. In re Philip W., 189 Wis.2d at 437, 525 N.W.2d at
386. The constitutional protection
afforded parents prohibits the termination of parental rights unless the parent
is unfit, In re J.L.W., 102 Wis.2d 118, 136, 306 N.W.2d 46, 55
(1981), and requires that unfitness be proved by clear and convincing
evidence. Santosky v. Kramer,
455 U.S. 745, 769 (1982).
We
must also consider the purposes of proceedings under ch. 48, Stats., and TPR proceedings in
particular. The pertinent purposes
stated by the legislature are: to
provide procedures through which children and other interested parties are
assured of a fair hearing and of the protection of their constitutional rights
while protecting the public safety, § 48.01(1)(a); to provide for the
care, protection and wholesome mental and physical development of children, preserving
the unity of the family whenever possible, § 48.01(1)(b); in cases of
child abuse or neglect, to keep children in their homes when it is consistent
with the child's best interest in terms of physical safety and physical health
for them to remain at home, § 48.01(1)(e); to provide children with
permanent and stable family relationships, eliminating the need for children to
wait unreasonable periods of time for their parents to correct the conditions
that prevent their return to the family, § 48.01(1)(g); to promote the
adoption of children into stable families rather than allowing them to remain
in the impermanence of foster care, § 48.01(1)(gg); and to allow for the
termination of parental rights at the earliest possible time after
rehabilitation and reunification efforts are discontinued and termination of
parental rights is in the best interest of the child, § 48.01(1)(gr).
The
balancing of the child's interest and the parent's interest in a TPR proceeding
is difficult, but the tension between the child's own competing
interests--maintaining parental bonds wherever possible, on the one hand, and
escaping intolerable, hopeless family situations, on the other--is also clear
and immediate. In re A.M.K.,
105 Wis.2d 91, 109, 312 N.W.2d 840, 849 (Ct. App. 1981). The public's interest similarly fluctuates
between assuring a wholesome developmental setting for every child and
preserving the unity of the family. Id.
With
this background, we look again at the language of § 48.415(5), Stats.
As we stated above, there are two requirements for terminating parental
rights because of child abuse. One is a
pattern of abusive behavior which is a substantial threat to the health of the
child who is the subject of the petition.
The second requirement is either that the parent has caused death or
injury of a child resulting in a felony conviction, or that, on more than one
occasion, a child has been removed from the parent's home by the court after a
finding of abuse by the parent.[7] The second requirement of either a felony
conviction or of more than one removal of a child from the home under a CHIPS
disposition demonstrates the legislature's intent that egregious conduct
actually resulting in harm to a child, as established in other judicial
proceedings, is a condition for unfitness under this section. One criminal conviction is sufficient. More than one CHIPS adjudication is required
because a CHIPS adjudication need not involve felonious conduct and requires a
lower burden of proof--clear and convincing rather than beyond a reasonable
doubt.
The
consequences of adopting Monroe County's interpretation of conviction in this
context is troubling. If an appeal of a
judgment of conviction is pending when the termination of parental rights
occurs, there is the chance the judgment may be reversed. There may be a new trial, which could result
in either a guilty verdict or an acquittal.
If the reversal is due to the insufficiency of the evidence, the defendant
cannot be retried. See State
v. Ivy, 119 Wis.2d 591, 609-10, 350 N.W.2d 622, 632 (1984). Meanwhile, the parent's rights would have
been terminated and the child possibly already adopted.
The
lack of finality of a conviction that is being appealed raises the question as
to whether that conviction is clear and convincing evidence of parental
unfitness. See In re Sonia
G., 204 Cal. Rptr. 498, 501 (Cal. Ct. App. 1984) (judgment of
conviction that may be reversed on appeal falls short of "clear and
convincing" standard of proof required for TPR proceedings); see also
In re D.D.F., 801 P.2d 703, 707-08 (Okla. 1990), cert. denied,
500 U.S. 922 (1991) (convictions pending on appeal are not final and cannot be
the basis for a TPR). But see In
re T.T., 845 P.2d 539, 540-41 (Colo. Ct. App. 1992) ("long-term
confinement" under TPR statute is ground for termination even though
appeal is pending; verdict and sentence in trial court satisfies "clear
and convincing" standard).[8] That lack of finality also does not
ultimately promote permanency and stability for the child. Until the right to appeal has been
exhausted, there is no certainty that the supposedly permanent arrangements
made for the child will not be disrupted after a successful appeal.
For
these reasons, we conclude the correct interpretation of "conviction"
in § 48.415(5)(a), Stats.,
is a conviction after the appeal as of right has been exhausted. The appeal as of right is limited to the
right to appeal to the court of appeals under § 808.03, Stats.
We recognize that our interpretation will delay the initiation of TPR
proceedings in those cases where neither § 48.415(5)(b) nor other sections of §
48.415 apply.[9] However, our construction defines and limits
the period of that delay--the conviction is final for purposes of §
48.415(5)(a) once the appeal to the court of appeals has been exhausted.[10] We are persuaded that this construction is
more consistent with the nature and purposes of TPR proceedings and, therefore,
with the legislature's intent.
By
the Court.—Order affirmed.
No. 95-3062(D)
DYKMAN,
J. (dissenting). Section 48.415(5)(a), Stats., provides that a parent
convicted of causing death or injury to a child may have his or her parental
rights terminated. The majority
concludes that the term "convicted" is ambiguous, but that the
legislature intended that the word means a "conviction after the appeal as
of right has been exhausted." Maj.
op. at 12. I dissent from the majority
opinion because I believe that the statute is unambiguous and that it permits
termination to proceed after a trial court has entered a judgment of
conviction. I believe that the common
meaning which most people give to the word "conviction" is the
termination of a criminal proceeding in a trial court which results in a
verdict or judgment of conviction. Even
if I were to agree with the majority that § 48.415(5)(a) is ambiguous, I
would still disagree with its conclusion because I believe that the
legislature's intent, reflected by other statutes, supports my interpretation
and that the case law in this and other jurisdictions interpreting the term
"conviction" is at variance with the majority opinion.
In
determining legislative intent, we first resort to the statutory language. Michael S.B. v. Berns, 196
Wis.2d 920, 928, 540 N.W.2d 11, 14 (Ct. App. 1995). Section 48.415(5)(a), Stats.,
permits termination of parental rights when a "parent has caused death or
injury to a child or children resulting in a felony conviction." Webster's
Third New International Dictionary 499 (1993) defines
"conviction" as:
"1 : the act of
proving, finding, or adjudging a person guilty of an offense or crime ... specif
: the proceeding of record by which a person is legally found guilty of any
crime esp. by a jury and on which the judgment is based." I conclude that the word
"conviction" is unambiguous as used in § 48.415(5)(a), and
refers only to trial court proceedings.
My interpretation follows the rule set out by the Wisconsin Supreme
Court in 1908, and which remained unchanged until the majority's decision
today. The rule then was that the word
"conviction" either signified the jury's finding that a person is
guilty or it implied a judgment and sentence of the court upon a verdict or
confession of guilt. Davis v.
State, 134 Wis. 632, 638, 115 N.W. 150, 153 (1908). Both of these definitions refer to trial
court and not appellate proceedings.
The
majority concludes that the statute is ambiguous and that the legislature meant
"conviction" to mean conviction after an affirmance by the court of
appeals. It reaches this conclusion
because "an appeal is an integral part in our judicial system for a final
adjudication of guilt or innocence ...."
Maj. op. at 7. This is a non
sequitur. Obviously Wisconsin has
an appellate court. However, its
existence does not bear on determining what the legislature meant when it used
the term "conviction" in § 48.415(5)(a), Stats.
Petitions
for review to the Wisconsin Supreme Court and petitions for a writ of certiorari
to the United States Supreme Court are also integral parts of our judicial
system. So are collateral attacks on
criminal convictions, such as § 974.06, Stats.,
motions, and petitions for writs of habeas corpus or coram nobis. Further relief is also available by writs of
certiorari or habeas corpus in the federal courts. I see no logic in holding that only a direct
appeal to this court is what the legislature intended when it used the term
"conviction" in § 48.415(5)(a), Stats., nor can I see the logic in holding that further
appeal or collateral attacks on criminal convictions are not relevant to this
inquiry. I do not believe that these
options were significant when the legislature used the word "conviction"
in the several session laws leading to § 48.415(5)(a), Stats.
I
interpret the majority opinion as indicating that it does not accept the
reliability of a trial court conviction but that it accepts the reliability of
a conviction affirmed by this court on direct appeal. The majority presumes that while further appeals and collateral
attacks may produce some reversals, there will be few, if any, reversals after
review by us. The majority's conclusion
must be, therefore, that the benefit of quickly terminating parental rights and
providing stability to a child is offset by the risk of an erroneous result in
the trial court.
But
this reasoning assumes that reversals of convictions for killing or injuring a
child occur most often in this court on direct appeal and not from supreme
court review or collateral attacks. I
know of no statistics to support this assumption, and the evidence available
shows that the majority's assumption is erroneous. In 1995, 1,353 criminal appeals were filed in the Wisconsin Court
of Appeals. That same year, we reversed
about three criminal convictions for evidence sufficiency. None of these reversals were cases dealing
with convictions for injuring or killing a child. Though my search covered only published and unpublished opinions,
I doubt that we would have reversed a conviction for evidence insufficiency by
order, memo opinion or summary reversal.
I use evidence sufficiency as the test because in those cases, an
acquittal is required. In other cases,
the result is almost always a retrial.
And, as the court noted in Lewis v. Exxon Corp., 716 F.2d
1398, 1400 (D.C. Cir. 1983), convictions are often reinstated upon retrial.
The
majority, therefore, balances the need for children to be quickly placed in
stable and supportive homes against a minuscule chance that a conviction will
be overturned because the state did not prove its case. It concludes that this minuscule chance
outweighs the needs of the children.
But statistics show otherwise.
Even
if I were to agree that the word "conviction" is ambiguous, I would
still conclude that § 48.415(5)(a), Stats.,
refers to trial court and not appellate proceedings. We know that legislative bill drafters are trained to ask
questions to ensure that legislation is
clear. The forward to the Wisconsin
Legislative Reference Bureau's Bill Drafting Manual notes:
It is absolutely
essential that at the start of the process the attorney understands what the
requester wants; otherwise, a lot of work may be done for nothing. It is not always easy to articulate the
problem and often the requester is only relaying a problem raised by a
constituent. The attorney must be able
to establish a good line of communication from the start and be an especially
good listener. The attorney must not be
intimidated or afraid of "looking stupid." The attorney must make sure that both the attorney and the
requester are using terms in the same way.
Legislative Reference Bureau, Forward to Wisconsin
Bill Drafting Manual (1983-84).
It
is hard for me to accept that both a legislator and a bill drafting attorney
would use the common, dictionary meaning for the word "conviction" if
they intended something different. One
would expect that if an unusual definition of a word were intended, this would be
communicated in some way.
Indeed,
when the legislature intends to communicate the meaning the majority now
ascribes to "conviction," the legislature has used specific language
to convey that meaning. As an example,
§ 29.995, Stats., provides
penalties for the violation of our fish and game laws. Persons convicted several times of these
violations are subject to increased penalties.
But to distinguish between a conviction entered by a trial court and one
that is affirmed on appeal, the legislature refers to convictions which
"remain of record and unreversed."
Section 29.995(2), Stats. And this is not an anomaly. The concept of convictions which remain of
record and unreversed is used in §§ 102.88(2), 103.965(2), 103.97(1)(b),
939.62(2m)(b) and 973.0135(1)(a)2, Stats. Had the legislature meant the term
"conviction" to mean "conviction which remains of record and
unreversed" it would have done so.
Courts
in other jurisdictions have considered whether a "conviction" used to
terminate parental rights means a conviction after the right of appeal has been
exhausted. Like Wisconsin, Colorado
gives primary consideration to the physical, mental and emotional conditions
and needs of the child. See Colo. Rev. Stat. § 19-3-604(3) (Supp.
1995). Like Wisconsin, Colorado
emphasizes a quick resolution of juvenile matters so that a child will have a
stable and secure environment. See
Colo. Rev. Stat. § 19-1-102(1.6)
(Supp. 1995). In In re T.T.,
845 P.2d 539, 541 (Colo. Ct. App. 1992) (citations omitted), the court said:
[I]t
is apparent that the General Assembly intended "conviction" to mean
convicted upon trial. At that time, an
accused has had a complete and full opportunity to be heard on the charges
against her and a final judgment against her has been entered.
To hold otherwise would be to violate the important
policies of the Children's Code which seek to assure a child of some degree of
permanency in long-term planning and to assure the child of a stable and secure
environment as soon as possible. If a
termination proceeding were required to be stayed until a parent's appellate
rights are exhausted, a child would have to spend an indeterminate time,
perhaps a great portion of his youth, in foster or other temporary care at a
time when the child needs stability and bonding in his relationships....
....
Our interpretation
of § 19-3-604(1)(b)(III) will protect mother's fundamental liberty
interest. In order to terminate
parental rights pursuant to § 19-3-604(1)(b)(III), a trial court must find
that the criteria of that section have been proven by clear and convincing
evidence. If the trial court relies on
a trial court criminal conviction and sentence, it will be relying on a
judgment obtained in a proceeding in which the standard of proof was even more
stringent, i.e., beyond a reasonable doubt. Consequently, we rule that mother was provided due process by the
trial court's and our interpretations of the term "conviction" as it
applies in the context of § 19-3-604(1)(b)(III).
Other
courts faced with the same question have come to the same conclusion as the
Colorado Court of Appeals. In Varnadore
v. State Dep't of Human Resources, 543 So.2d 1194, 1196 (Ala. Civ. App.
1989), the court said:
The mother's first
contention, that the termination is premature, is based on the supposition that
her criminal conviction will be overturned.
She insists that if that occurs, then satisfactory counseling
arrangements could be made to assist her in her parenting skills. We find this argument to be based on mere
speculation, to be perfunctory at best and unpersuasive.
In
In re Pima County Juvenile Severance Action No. S-2462, 785 P.2d
56, 58 (Ariz. Ct. App. 1989) (footnote added), the court said:
The natural father's sole basis for the requested
continuance was the fact that he was appealing the murder conviction, one of
the grounds upon which [the Department of Economic Security] based the
[termination of parental rights] petition.
There is nothing in A.R.S. § 8-533(B)(4)[11]
which suggests that the juvenile court must wait for the parent convicted of a
crime to exhaust all avenues of appeal before the court may proceed with a
[termination of parental rights] hearing.
To interpret the statute otherwise would, we believe, indefinitely delay
determinations regarding children whose best interests are at risk and require
expedient consideration.
In
In re Udstuen, 349 N.W.2d 300, 305 (Minn. Ct. App. 1984)
(citation omitted), the court said:
Finally, appellant argues that the termination
hearing should have been continued until after the appeal of his criminal
conviction was decided. He claims that
he was prevented from taking the stand on his own behalf without giving up his
Fifth Amendment right against self-incrimination.
At the time of the
parental rights hearing, appellant had already testified at his criminal trial,
waiving his privilege against compulsory self-incrimination and subjecting
himself to appropriate cross-examination by the State about the criminal
charges he was facing. In consideration
of the particular facts and circumstances of this case, we find appellant's
Fifth Amendment argument to be without merit.
California,
however, holds to the contrary, reasoning that a judgment of conviction might
be reversed on appeal and, therefore, does not constitute clear and convincing
evidence of a conviction. In re
Sonia G., 204 Cal. Rptr. 498, 501-02 (Cal. Ct. App. 1984).[12] This reasoning is not applicable in
Wisconsin where reversals of criminal convictions for evidence insufficiency
are rare to the point of being nearly non-existent.
Cases
discussing the meaning of "conviction" but not in the context of
termination of parental rights proceedings are legion. In Lewis v. United States, 445
U.S. 55 (1980), the Court considered 18 U.S.C. § 922(h)(1) (1979) which
provided that it was "unlawful for any person ... who has been
convicted" of a felony to receive a firearm. Lewis's underlying felony conviction was flawed because he was
tried without the benefit of counsel.
But the Court affirmed Lewis's conviction for a felon receiving a
firearm, reasoning: "The statutory
language is sweeping, and its plain meaning is that the fact of a felony
conviction imposes a firearm disability until the conviction is vacated or the
felon is relieved of his disability ...."
Id. at 60-61. The
use of the word "convicted" in Lewis is no different
from the language of § 48.415(5)(a), Stats.,
which provides: "That the parent
has caused death or injury to a child or children resulting in a felony
conviction."
In
Exxon Corp., 716 F.2d at 1398, the court considered a federal
statute which permits a petroleum company to terminate a dealer franchise for
"the conviction of the franchisee of any felony involving moral
turpitude." The dealer whose
franchise was terminated argued that the pendency of an appeal prevented
termination of the franchise until the conviction had been affirmed. Id. The court disagreed:
As Exxon points out, conviction in various
legal contexts typically means a judgment of guilt entered upon the jury
verdict, trial court finding, or guilty plea.
We will rehearse only a few illustrations which suggest that the usage
of "conviction" as meaning the judgment entered upon the verdict or
plea and not the final affirmance upon appeal of that judgment is so common
that it is highly likely Congress used the word in that sense....
Under the common law, the term
"conviction" has, and continues to have, one of two accepted
meanings—the jury verdict or the judgment entered following the verdict. Either common law construction would support
our judgment in this case; the construction urged upon us by the appellant is
nowhere suggested. It is also clear
that the law uses the latter definition of "conviction" even where
the result is to impose considerable hardship upon the person convicted. Thus, legislation providing for the
exclusion from public office of persons "convicted" of perjury
required the removal of a public official while his conviction was on
appeal. A union official is
automatically removed from office upon conviction even though he is appealing
that conviction. This usage of the term
"conviction" is almost universal and it is doubtful whether Congress
would ascribe an extraordinary meaning to the word without stating that it was
doing so.
....
If the ground for
termination is the ultimate veracity of the conviction, there is no reason to
draw the line at the exhaustion of all direct appeals. If the conviction were ultimately reversed
on a collateral attack, the result would be the same: the franchisee would have
been terminated despite the fact that he was no longer a convicted felon. The logic of Lewis' position, though
counsel sought to disown it, would prevent termination during all collateral
attacks, which is to say that it would prevent termination.
Id. at 1399-1400 (citations and footnote omitted; emphasis added).
Even
in a death penalty case, a court has held that evidence of a prior conviction
of murder could be used in the penalty phase of the trial notwithstanding the
fact that review of the prior conviction was still pending on appeal. People v. District Court, 554
P.2d 1105 (Colo. 1976) (en banc).
The court said:
In the statute
under consideration the legislative intent is apparent that the term
"convicted" means convicted upon trial. If a sentencing hearing were to be postponed until all appeals of
another case or cases had been finally determined, the resulting situation
would be chaotic. Further, the statute
provides that the sentencing hearing should be before the same jury which tried
the defendant's guilt. Obviously, an
empanelled jury cannot be held in cold storage for thawing out and use years
later.
Id. at 1106.
Wisconsin
courts have discussed this issue too, though not in the context of
§ 48.415(5)(a), Stats. In State v. Wimmer, 152 Wis.2d
654, 658, 449 N.W.2d 621, 622 (Ct. App. 1989), we expanded Davis
and concluded that there were "at least" two meanings for the word
"conviction": (1) a
popular meaning indicating a finding of guilt; or (2) a more technical
legal meaning referring to the entire procedural process resulting in a
judgment and sentence. We deleted the
"at least" language of Wimmer and returned to the Davis
definition in State v. Trudeau, 157 Wis.2d 51, 53, 458 N.W.2d
383, 384 (Ct. App. 1990).
And
in State v. Smet, 186 Wis.2d 24, 30, 519 N.W.2d 697, 699 (Ct.
App. 1994), we relied upon Wimmer and concluded that
"conviction" meant an adjudication of guilt by the trial court for
the purpose of determining a defendant's place within the sentencing
guidelines. We reasoned that a uniform
definition of "conviction" was the best policy. Id. We said:
While Wimmer dealt with the meaning of the
word "conviction" in context of the repeater statute, we see no
reason to deviate from the same definition here. Consistency promotes both certainty and a uniform application
of the law.
Id. (emphasis added).
Overruling
the uniform meaning of "convicted" we adopted in Smet is
a step backward. After Smet,
there was no reason for trial courts to consider a different meaning for the
word "convicted."
The
majority has, in effect, balanced the rights of children with the rights of
their parents in termination proceedings and has concluded that the harm
to the parent outweighs the additional
year or years of uncertainty to the child.
But I do not think that the majority's analysis can be reconciled with Wimmer. The right in Wimmer was the
right not to have additional time added to a sentence for habitual criminality
under § 939.62, Stats. Wimmer, 152 Wis.2d at 656-57,
449 N.W.2d at 621-22. It is difficult
to compare additional imprisonment with the loss of parental rights, but both
are very significant. Why should the
right to liberty advanced in Wimmer compel one meaning for the
word "conviction" while the substantial right in this case compels a
different meaning?
The
word "convicted" is mentioned in the Wisconsin Statutes at least 624
times. In Wimmer, we
determined that "convicted" refers to a finding of guilt by a trial
court in the case of repeat offenders under § 939.62, Stats.
In Trudeau, we determined that "convicted"
refers to a judgment of guilt rendered by a trial court in the case of
impeachment evidence under § 906.09(1), Stats. But in this case "conviction" now
means conviction after affirmance by the court of appeals. In the remaining 621 instances, we are again
at sea. Determining the meaning of
"conviction" for each instance will be no small task.
The
legislature requires that appeals in termination of parental rights cases are
to be handled with great speed.
Section 809.107(6)(e), Stats. This statute suggests to me that the year or
years of waiting which the majority has now added to some termination
proceedings cannot be the intent of the legislature. The welfare of children is not advanced by delaying termination
proceedings for the year or years that the appeal process takes to be
completed. Yet the majority concludes
that its view of the meaning of "conviction" is more consistent with
the nature and purpose of termination proceedings than the view expressed in
this dissent. The majority then infers
that because its view of the nature and purposes of termination proceedings
permits a different meaning of the word "conviction," the legislature
must also have intended that meaning.
As I see it, that type of analysis substitutes "judicial
intent" for "legislative intent." I do not believe that the two are, other than coincidentally, the
same. I, therefore, respectfully
dissent.
[1] This appeal was originally assigned as a
one-judge appeal under § 752.31(2)(e), Stats. It was reassigned to a three-judge panel by
order of the chief judge dated January 25, 1996. See Rule 809.41(3),
Stats. This appeal has been
expedited, see Rule
809.107(6)(e), Stats., and we
extended the court's deadline to enable the panel to fully consider the
matter. See Rule 809.82(2)(a), Stats.
[2] In In re Philip W., 189 Wis.2d
432, 525 N.W.2d 384 (Ct. App. 1994), we held that summary judgment is
inappropriate in involuntary termination of parental rights cases because the
parent is entitled to a fact-finding hearing before parental rights are
terminated. Id. at
436-37, 525 N.W.2d at 385-86. Whether
Monroe County's motion for summary judgment is permissible is an issue not
before this court.
[3] In its motion, Monroe County did not seek a
termination of parental rights, only a ruling that a ground for termination had
been established. The motion implicitly
recognized that, even though a ground for termination of parental rights is
established, whether to terminate parental rights is within the discretion of
the court. In re K.D.J.,
163 Wis.2d 90, 104-05, 470 N.W.2d 914, 920-21 (1991).
[4] A child may be adjudged in need of protection or
services if the child has been the victim of sexual or physical abuse by other
than accidental means, § 48.13(3), Stats.,
or is at substantial risk of becoming the victim of sexual or physical abuse
based on reliable and credible information that another child in the home has
been a victim. Section 48.13(3m).
[5] The same is true of State v. Smet,
186 Wis.2d 24, 519 N.W.2d 697 (Ct. App. 1994), cited by the dissent. Smet followed Wimmer's
construction of conviction. As in Wimmer,
the context in Smet was sentencing.
[6] The dissent cites a number of cases from
other jurisdictions that construe the term "conviction" as used in
various statutes that are unrelated to TPR proceedings. We do not consider the reasoning of these
cases to be persuasive on the question of how to construe
"conviction" in § 48.415(5), Stats.
[7] While the pattern of abusive behavior must be
a substantial threat to the health of "the child who is the subject of the
petition," the victim of the abuse resulting in a felony conviction or the
CHIPS dispositions need not be that child.
Section 48.415(5)(a) and (b), Stats.,
simply refers to "a child."
[8] The dissent states that in three other TPR
cases, other jurisdictions were faced with the same question and came to the
same conclusion as the Colorado Court of Appeals did in In re T.T.,
845 P.2d 539 (Colo. Ct. App. 1992). We
do not agree with the dissent's characterizations of these cases. In Varnadore v. State Dep't of Human
Resources, 543 So.2d 1194 (Ala. Civ. App. 1989), In re Pima
County Juvenile Severance Action No. S-2462, 785 P.2d 56 (Ariz. Ct.
App. 1989), and In re Udstuen, 349 N.W.2d 300 (Minn. Ct. App.
1984), the courts do reject the parents' contentions that parental rights
should not be terminated while a criminal conviction is being appealed. However, in none of these was the court
interpreting "conviction" as a statutory requirement for termination
of parental rights; in each case there was evidence before the court, other
than the fact of a conviction, that justified termination under the applicable
statutory requirements.
In another
case, RW v. State ex rel. Laramie County, 766 P.2d 555 (Wyo.
1989), the convictions of both parents had been affirmed by the federal court
of appeals and the parents were seeking review of their convictions by means of
a petition for writ of certiorari to the United States Supreme Court. The court held that a conviction affirmed in
an appeal as of right was a conviction within the meaning of Wyoming's TPR
statute. Id. at 557. The court did not decide whether affirmance
in an appeal as of right was necessary to the definition of conviction.
[9] Our ruling does not prohibit evidence
relating to the incident that is the subject of the criminal proceeding from
being used to establish other grounds for termination. Nor does our ruling preclude the legislature
from defining child abuse solely in terms of the abusive conduct itself, rather
than requiring a criminal conviction for the conduct.
[10] Criminal cases are given priority by the
court of appeals. See Wis. Ct. App. IOP VI(2) (July 15, 1991).
[11] Arizona
Rev. Stat. Ann. § 8-533(B)(4) (West Supp. 1995) provides:
Evidence sufficient
to justify the termination of the parent-child relationship shall include any
one of the following, and in considering any of the following grounds, the
court may also consider the needs of the child:
....
(4) That the
parent is deprived of civil liberties due to the conviction of a felony
if the felony of which such parent was convicted is of such nature as to
prove the unfitness of such parent to have future custody and control of the
child, or if the sentence of such parent is of such length that the child will
be deprived of a normal home for a period of years.
(Emphasis added.)
[12] In In re D.D.F., 801 P.2d 703,
707-09 (Okla. 1990), cert. denied, 500 U.S. 922 (1991), the court
concluded that a provision in the Oklahoma Constitution which prohibits
convicted felons from voting meant a conviction on appeal could not be used as
the basis for terminating parental rights.
But the court permitted the facts supporting the conviction to be used
as the basis for the termination. The
Oklahoma constitutional provision has been changed, though the requirement of a
"final" judgment now exists by a statute requiring that a conviction
be "final" before it may form the basis of a termination of parental
rights judgment. See Okla. Stat. Ann. tit. 26, § 4-101
(West 1995). The Wisconsin statute in
question, § 48.415(5)(a), Stats.,
does not use the term "final" in referring to a conviction.
In RW
v. State ex rel. Laramie County, 766 P.2d 555, 557 (Wyo. 1989), the
court declined to resolve any and all issues which might arise concerning the meaning
of the word "conviction." It
concluded that because both a conviction and an affirmance of that conviction
on appeal were of record, a statute requiring a "conviction" for
termination proceedings was satisfied. Id. RW, therefore, does not answer
the question raised in this appeal.