*1 testimony reporters hearing at the on the motion quash subpoenas suggested any to. of their might provide exculpatory able to sources evidence. Phillips Because the defendant has not made show- ing, require reporters’ sufficient the denial of the mo- quash, denying tion to the trial court erred in the motion ordering reporters’ in camera disclosure sources. Phillips we prima
Since determine failed to make a subpoenas, case trial issuance facie contempt proper. court’s We there- contempt fore reverse the order entered the court.
By the Court. —Decision of the trial court in No. Case reversed; appeals 83-133-CR decision of the court of Case No. is reversed and cause remanded 82-2244-W quash subpoenas. trial court directions In person K., Interest Girl under the
age of 18: L.K., Petitioner-Respondent, .B.,B Respondent-Appellant-Petitioner.
Supreme Court Argued April 27, July 1, 1983. No. 82-087. 1983.Decided (Also reported 846.) in 335 N.W.2d *2 by petitioner were For the there Gerhardt F. briefs argument Janetta, Wausau, Getzin Getzin and & and oral by F. Gerhardt Getzin. petitioner-respondent
For the there was a brief Brady Bradley, Brady, S.C., Patrick M. Hoover & Wausau, argument by Brady. and oral Patrick M.
4B1 argument by Kurth, Wausau, There oral James guardian ad litem.
DAY, unpublished J. an This is review of decision appeals judgment of the court which affirmed of the Crooks, County, Circuit Court Leo D. Marathon Judge, terminating father, B.B., provisions K. sec. Girl under (6) (a) 6(b),1 48.415 Stats. 1981-82. presented
There four are issues review. The first (a)2 48.415(6) permit is: issue sec. termination of Does parental rights of a of a child of wed- father born out prison the father lock where was incarcerated in the state system pregnancy from fifth ? month of the mother’s 48.415(6) (a)2 Stats., 6(b), Section 1981-82reads: involuntary parental rights. *3 “Grounds for termination of At the fact-finding hearing finding may grounds the court make a that parental rights. for the exist termination of for termina- Grounds parental rights following: of . tion shall the . . be one of Responsibility, (a) “(6) Fail- Failure to Assume Parental parental responsibility may to ure assume a established show- ing wedlock, subsequently that a child has been born out of not legitimated adjudicated adopted, paternity prior that not to filing petition parental rights of the the for termination of and: “(2) although paternity adjudicated That the to child has been 48.423, parental under s. relationship the father did not establish a substantial adjudication prior paternity with child to the of although the father had reason to believe that he was the father opportunity pa- of the child and had an establish rental with the child. “(b) subsection, parental relationship’ In this ‘substantial means acceptance significant responsibility and of exercise for the daily supervision, protection education, of care the child. In evaluating person parental whether the has had a substantial re- lationship child, may with factors, the court consider such in- cluding, to, person expressed but not limited whether the has ever well-being concern for support, or interest in the care or of the during pregnancy child per- or the mother her and whether the neglected son has though or refused to care or even person opportunity ability had the to do so.” pa- the termination of B.B.’s second issue is: Was 48.415(6) (a)2, provisions sec. rental under the Stats., properly here ? ordered finding specific issue is: Must a third involuntarily terminate made in order unfitness be parental rights 48.415(6) (a)2, under sec. Stats.? 48.415(6), Stats., Does sec. violate
The final issue is: Equal Amend- of the Fourteenth Protection Clause ment? of the mere fact that father
We conclude in the out of wedlock has been incarcerated born preg- prison system since the fifth month mother’s preclude possible pa- nancy termination does 48.415(6) (a)2, also rental under Stats. We sec. require process conclude that due does not where the father has failed estab- unfitness parental relationship sec. 48.415 lish a substantial under properly (6) (a) 2. determine the trial court We 48.415(6) under terminated B.B.’s sec. (a)2. (b)2, Stats.,
Finally, (6) we conclude that sec. 48.415 Equal the Four- does not Clause of violate Protection teenth Amendment. ap-
Accordingly, affirm the of the court we decision peals. dating
L.K., Baby mother, began B.B. Girl K.’s through July, up At 1979. that time birth Baby 17,1981, L.K. Girl K. on March was minor. June, 1980, pregnant
In L.K. became Girl *4 Approximately later, November, in K. five months burglary at the B.B. of and incarcerated was convicted prior A convic- Kettle Morraine Correctional Institute. burglary tion in when he convicted of occurred 1977 was Reformatory. and State sent to Wisconsin November, B.B. see- From June until continued According testimony ing L.K., B.B. did L.K. to apparently supported quite not work but himself well dealing drugs “robbing During places.”2 and that period pregnancy, B.B. her L.K. stated that treated “fairly good” her an incident but she recalled where “he picked up my bike and it into the threw road from porch, grabbed and then . . around the and . me neck strangle tried to L.K. that B.B. would me.” also testified money dealing “go drug use the from his to robberies buy everyone” buy out to bars and . . drinks to . marijuana. “he She noted that a fair amount of smoked away.” money his incarceration, to
Prior B.B. did not contribute to defraying any pregnancy cost related ex- L.K.’s penses although pay expenses.3 he did some of her dental incarceration, After his B.B. no to also made contribution expenses. However, her L.K. testified that she told him worry expenses not to prison. about the while he inwas suggested She also testified that B.B. that she and go live baby with his mother after the was born. prior prison, to the birth K. While Girl corresponded. letters, B.B. and L.K. In his twice re- B.B. quested smuggle try that L.K. come visit him and some marijuana expressed B.B.’s letters also the con- him. gave up might if baby cern L.K. adoption, that relationship.4 end their testimony L.K.’s toas these admitted acts was at trial not to
prove purpose showing commission of the acts but for the during period. B.B. had funds to L.K. 3 L.K. prior testified on cross-examination that she asked B.B. help paying expenses his incarceration for her fact had her first doctor unpaid, bill sent to his house. After the bill went parents’ it payment. redirected L.K.’s house for January 26, 1981, (Exhibit B.B.’s record) letter to L.K. in the you shows give baby away this concern: “I feel that if do our you’ll fucking guys you’ll forget be out worry about me ... I guys going your alot about after ass . . .”. *5 initially birth, apparently Baby B.B.
Before Girl K.’s having parental rights How- terminated. consented to changed cross-examination, he ever, L.K. testified writing stopped him.” “right I time his mind around the the child in order that B.B. wanted It was L.K.’s belief her. and perpetuate with The record a correspondence her L.K. lend credence to B.B.’s statement. points to have L.K. and the out that he offered
B.B. stepfather. L.K. refused child live with his mother report A worker’s which was ordered offer. that social following request an B.B.’s evalua- trial court re- B.B. had been parents’ home showed that tion of his placed home in foster moved from that household had likewise been taken out that later a half-sister placed in a foster home.5 of the household Baby 17, 1981, L.K. K. was On March Girl born. signed Voluntary Agreement with the Mar- Placement County (Depart- Department of Social athon Services agreement ment) 18, purpose of on March 1981. The Baby placed home was Girl K. be foster to allow discharge placement upon hospital. from her 20, K. has on March 1981. Girl remained occurred par- foster home The foster in the same since date. expressed adopting her should have an interest ents parents’ terminated. County report De the Marathon the social worker from 1981, 19, partment and filed Services dated November Social 1981, B.B. was born Court shows that with the November to his June 1958. He was one of three children born marriage. parents His in her first were divorced mother year January and two of 1961. The mother married J.H. later that report were born to them. The social worker’s shows children provided periodically department social services from the time breakup marriage. placed B.B. was “in of the first In 1975 “disruptive because of B.B.’s behavior.” When substitute care” eighteen daughter the case was closed. A from the B.B. became placed marriage was in “substitute care” 1976. That case second girl apparently eighteen closed when the became in 1980. *6 initially petition voluntary L.K. filed a termination parental rights learning but withdrew it after that having parental B.B. would not consent to his ter- minated. B.B. had filed a Declaration of Parental Inter- Department April 13, est with the June, on 1981. In petition requesting Baby 1981, L.K. filed a that K. Girl protection be in found need of or services and that her custody Department purpose be transferred to the for the placement (“Chips” petition). of continued foster care August petition 3, 1981, On B.B. filed a for a determi- paternity custody, nation of and a motion to consoli- “Chips” proceeding. date these matters with the Subse- quently, petition L.K. filed a for the termination of B.B.’s parental rights 48.415(6), under sec. Stats. All of these actions were consolidated. adjudged 23, 1981,
On December trial court B.B. the father of Girl K. The court then held a hear- ing petition parental rights on L.K’s to terminate the testimony given B.B. The set out above was at this hear- ing. hearing, Baby guardian addition, In at the Girl K.’s parental ad litem recommendedthat B.B.’s be ter- minated.
Following hearing, bench, in a decision from the judge the trial ordered B.B.’s terminated. The court determined that B.B. had “failed to assume parental responsibility as set forth and defined sec. 48.415(6) (a)2 (6) (b),” and subsection In Stats. so de- ciding, the court stated: preliminary “This Court does find that to his incar- [B.B.] ceration Mr. was able to care and and failed to do so. This record fails to show that Mr. any way, attempted carry [B.B.], meaningful on a
relationship which this Court could consider as a sub- parental relationship, by things stantial by phone, mail, even or any doing or in manner, other those that are essen- tial to a relationship: expressing gifts, request concern with small baby card, that the things any brought that visit, number of little down for a sexual en- spell between the results of a the difference parent-child relationship. counter or spite incarcera- that does believe “This Court opportunity sub- to establish had that tion Mr. [B.B.] legislature has not relationship. The stantial given they guidelines they or where will decide where us decided, or ‘X’ number of weeks months have years parental re- the failure establish constitutes lationship and it that Mr. did file the Decla- is true [B.B.] Exhibit 4. ration of Parental Interest as set forth in my But, There no mind that he is interested. doubt through carry he failed to that are has those areas parental relationship.” essential to establish a substantial findings following The trial also made the written court *7 pertinent: of fact and of law which are conclusions FACT “FINDINGS OF during preg- period petitioner that was “7. That the Baby respondent, [B.B.], [K.], nant on two with the Girl asking smug- petitioner occasions, wrote to her to letters gle marijuana Fa- into Moraine the Kettle Correctional cility personal for his use. peti- during period that the occasion “8. That one respondent, Baby pregnant with Girl tioner was [K.] petitioner. [B.B.], physically assaulted neglected respondent, [B.B.], to “9. That the during petitioner pregnancy support even care or to her though opportunity respondent, [B.B.], had the ability to do so. “10. respondent, [B.B.], present That evi- failed to any attempts part parental dence of relationship tact on his a establish Baby with Girl such as to con- [K.] attempts persons caring child, said write to said child gifts. to send the child cards or any at- respondent, [B.B.], 11. to make That failed pe- expenses tempt medical to contribute towards the pregnancy subsequent her and the titioner occasioned delivery Baby Girl [K]. degree high “12. a that That there of likelihood is Baby adopted parental will Girl be event [K] rights are terminated. [B.B.] Baby good “13. That Girl is health and at [K.] placement care, time only days (3) of foster three old. relationship “14. That the no with child has had either parent family or other it members so that would not be relationships. harmful to said child to sever such parental That “15. the event the of [B.B.] terminated, are that the will be able enter into family permanent more stable and relationship. “CONCLUSIONS OF LAW . . . [B.B.], “16. respondent, That has failed to assume Girl responsibility Baby within [K.] meaning of 48.415(6), Sec. Wis. Stats. Baby “17. That it in the best interest of Girl [K.] father, that [B.B.], of her be termi- nated.” judgment. ap- appealed
B.B. from the The court of peals affirmed. That court concluded that evidence finding was sufficient B.B. an had opportunity develop
Baby ap- K. and Girl had failed to do so. court peals determined that the trial court’s termination of B.B.’s would best interest of against great Girl K. was not *8 the weight preponderance and clear of The the evidence. finding court specific also parental concluded a of unfitness was unnecessary to parental terminate B.B.’s rights. However, the court went on note that even though finding a required, unfitness was not a such clearly “is Finally, sustained the record.” the court held 48.415(6) (a)2 that sec. did not unconsti- tutionally deny equal B.B. the protection of the law. 48.415(6) (a)2, is: Does sec. The first review issue permit
Stats., the the termination of the father where a father of child born out wedlock system prison the from was incarcerated in Wisconsin pregnancy? fifth month of the mother’s 48.415(6) (a)2, Stats., Section allows the adjudi- paternity been a father whose has under conditions. cated to be terminated certain a sub- a father has conditions exist where established adjudication prior relationship to the stantial though paternity he was he had reason to believe even opportunity to had an estab- the father the child and question relationship. here did B.B. is lish such opportunity to have an establish K. Girl evaluating parental relation- In whether a substantial legislature 48.415(6) ship (a)2, Stats., exists, the in sec. to consider the father’s behavior authorized trial courts during pregnancy Specifically, of the mother. sec. 48.415(6) (a)2 a court to allows consider whether expressed concern for or father “has ever interest well-being support, or mother dur- care neglected ing person pregnancy has her and whether though or refused care and even person opportunity to do had the so.” It clear legislature that a father’s therefore that intended determining pre-delivery consideration behavior be a pa- the father had whether established a relationship. rental
May prior his child a father’s action birth of “op- form a that he had an sufficient basis conclude portunity” parental relation- to establish a substantial ship may. with the child? hold that it We legislature 48.415(6) (b)
In sec. defined “sub- parental relationship” acceptance as “the stantial
439 significant responsibility super- daily exercise of for the vision, education, 'protection and care of the child.” (Emphasis added.) long Medical authorities have rec- ognized prenatal important that care is to the eventual well-being hap- health and of an infant.6 Because what pens significant impact to a fetus útero can have a upon quality birth, of life a child will have after we parent’s prior that a conclude action to a child’s birth determining can form a sufficient basis for whether parent parental has established a substantial relation- ship with the child. parental rights of fathers out of of children born given
wedlock protection. have been constitutional Stan- ley Illinois, (1972). 405 If U.S. the statute possibility showing foreclosed the of a father he had developed parental substantial with his child, process however, due would be violated. Here possibility parental is not foreclosed. The father’s must showing be continued absent a that he has failed relationship. establish opportunity responsibility to exercise care for the protection begins aof before the child’s birth. A statute such as this one which allows consideration recog- the father’s conduct before birth of the child nizes that fact. conclude that
We the mere fact that of a father child born out of wedlock has been incarcerated in the prison system since the fifth month of the mother’s pregnancy preclude possible does not termination 48.415(6) (a)2, under sec. Stats.
Concluding 48.415(6) (a) that sec. 2 allows a trial court to terminate the father a situa- Gray, Attorneys’ Medicine, Textbook 305.10, G. 4B 305. secs. Lawyers’ Cyclopedia, (3 1983); Medical (C. ed. 5B sec. 37.5a 1972). Frankel ed. *10 issue the second turn to here, we now like the one tion de- the trial court’s on review: Was Court before this pro- rights under the parental terminating B.B.’s cision Stats., proper? con- 48.415(6) (a)2, We of sec. visions it was. clude to had “failed that B.B. determined trial court Baby within responsibility Girl parental [K.]
assume for this 48.415(b).” the basis meaning As of sec. findings that: fact noted of conclusion, the court its smuggle to 1) on two occasions had asked L.K. B.B. as- 2) physically marijuana prison, had him in to ne- 3) pregnant, B.B. had she was saulted while L.K. during the L.K. glected to care or though opportunity pregnancy he had even any of present evidence so, 4) ability to do had failed persons child, write to attempts part to contact the 5) gifts, B.B. had caring for her or to send cards expenses aris- L.K.’s medical toward failed contribute Baby K. delivery Girl ing pregnancy and of from the finding set aside fact will not be A trial court’s weight preponderance against great clear unless the record here convinces A of the evidence.7 review findings Each here were correct. that the us convincing in the record. supported by evidence clear 'prima the termination case for L.K. established a facie Because such parental B.B.’s under statute. it established, shifted and the burden case had been present that he necessary evidence became for B.B. to had a substantial established Although completely do. K. This he failed to Girl testimony trial, presented whatso-
he attended the
no
he
7
Heating,
Schaller,
493,
Electrical
2d
Onalaska
Inc. v.
94 Wis.
Co.,
Cogswell
501,
v. Robertshaw Controls
(1980);
288
829
N.W.2d
Prairie
;
Bank
Sun
(1979)
2d
Wis.
Based fact, its trial court con- cluded that B.B.’s should be terminated 48.415(6) (a)2. under sec. The trial court also concluded Baby- the termination would be in the best interest of Girl K.
In order terminated, petitioner convincing must show clear and evidence *11 the appropriate. that termination is This of burden proof required by is 48.31, both sec. 1981-82, Stats. and by process clause, Santosky due Kramer, 455 U.S. 745, 769, 102 (1982). S. Ct. 1402-1403
We petitioner conclude that the here met this burden. findings of fact as set out the trial court convincing clear and evidence that B.B. had failed to parental establish a relationship Girl K. and rights that parental termination of B.B.’s was in the child’s best interest.
B.B. disregard showed a blatant for both mother and child when he smuggle marijuana asked L.K. to into prison for his acquiesed use. If L.K. request had to his and been apprehended, possi- she would have faced the bility prison of a Further, physical term.8 B.B.’s as- sault of certainly L.K. shows no for concern the care or well-being of addition, either mother or child. In testimony guardian supported ad litem termi- nation.
The law try cope is made with the ever in- creasing illegitimate number of births to alleviate increasing society burden to that such households present; often growing ever rolls, relief and the bleak living future the poverty children face at a near level. It is for among these reasons others that when the sin- gle willing mother is adopted her allow be
8 Section 161.465(1), Stats. 1981-82. right may have must such a child’s father
whatever best out for the child’s in a manner that looks resolved protects of at the same time interest and examining attitude his It reason father. is child and mother to the unborn its pregnant abortion, common of Short makes sense. putative escape responsibility. But the mother can’t relationship voluntary. father’s relationship to child is After the child is born relationship has whether a substantial also indicative of ignore A court cannot child. been established with the why physically this father was the circumstances pregnancy. He was from the fifth month of available burglary. was not This convicted case sentenced military being illness, service absent because job. to incar- of a His absence was due demands burglary. It his sec- from the wilful act ceration ond incarceration for crime. properly were terminated under
B.B.’s 48.415(6) (a) provisions sec. Stats. specific The third issue on review is: Must involuntarily be made order to unfitness 48.415(6) (a)2, under terminate sec. *12 ? Stats. though findings
Even sufficient have been made so rights may that B.B.’s terminated under the be question statute, as to whether such a termi- remains finding may accomplished nation without a of un- fitness. Stanley, Supreme
In
that
United States
Court held
parental rights
before
of an unwed
could be
father
person
constitutionally
terminated
was
entitled to
hearing
parent.
on his
In
as a
443 custody management and evapo- of their child does simply they rate parents,” because have not been model 455 753, U.S. at and because of this held that interest termination only place could where take there clear convincing appropriate. evidence it was Id. at 769. court, This in In the Interest J.L.W., 102 2dWis. 118, (1981), process N.W.2d 46 held that “the due protections of both the state and federal constitutions prohibit parent’s rights, the termination of natural un- parent less the J.L.W., finding is unfit.” In because no was made that parent natural mother was an unfit finding because such a could not be sustained record, this judgment Court reversed the order and terminating the trial court the natural mother’s and returned the child to the mother. Stanley
Both parents J.L.W. involved natural who point had at some participated their children’s lives raising suggested them. However commentators have parent the failure of participate at all rais- ing may of the child require- eliminate the constitutional ments for a agree. of unfitness.9 We Supreme The recent United States Court Lehr case of - Robertson, (Case 81-1756, -U.S. No. decided 1983) supports June position.10 Lehr, In 9 Hayes Morse, Adoption S. and M. and Termination Proceed ings Straining Solomon, Mq. in Wisconsin: the Wisdom L. - 439, 452, (1983); Robertson, Rev. -, Lehr v. See U.S. (Case 81-1756, 27, 1983), Slip op. p. No. decided June foot note 17. questions Justice Stevens stated that the United States Supreme jurisdiction Court had to consider review were “whether the New York Statutes are unconstitutional because they inadequately protect parent the natural between they impermissible child or because draw an distinction be tween the Lehr, mother and the of the father.” Slip op., p. 7, fn. 10. issue, On gender-based the latter the father contended “that statute, right classification in the which denied him the to con- *13 rights enjoyed by natural that the Court determined acquire did not out wedlock of children born fathers process protection the due clause constitutional under full demonstrates a commitment until “the unwed father by ‘coming responsibilities parenthood forward to ” Slip op., rearing participate of his child.’ in the to Mohammed, 380, 12, p. quoting Caban v. 441 U.S. ex- (1979). on to add that “the mere went Court biological equivalent does not merit link istence p. protection.” Slip op., 12. constitutional Lehr, Supreme In determined the United States Court who had the father a child out wedlock born up the time of the lived with mother of the child to occasionally birth and who had seen child’s process right to birth,11 no notified after the had due proced- adoption daughter’s] him fewer sent to and accorded [his Equal mother, Protection Clause.” ural than her violated the Id. 1 1 Lehr, According dissent in fact to Justice White only occasionally was her birth that the father saw the child after attempts conceal her where the direct result of the mother’s abouts from father. As Justice White states the facts: “According father], Lehr, and Jessica’s mother met he [the together began living couple 1971 and in 1974. cohabited approximately Throughout years, 1976. until birth in Jessica’s pregnancy birth, and after the Lorraine acknowl- [the mother] father; edged Lor- to friends and relatives that Lehr was Jessica’s reported raine De- told Lehr that had to the York she New State partment (Footnote Services he was father. Social hospital every omitted.) Lehr visited Lorraine Jessica in day during According Lehr, from the Lorraine’s confinement. discharged hospital August, time Lorraine until from the During she concealed her time Lehr whereabouts from him. never ceased his to locate efforts Lorraine Jessica and sporadic August, achieved he success until after which time was unable to at On locate them all. those when he did occasions location, determine Lorraine’s he visited with her and her children willing permit Lehr, to the extent she was it. When with the aid agency, August, of a detective located Jessica in Lorraine and already 1978, Lorraine was married to Mr. Lehr as- Robertson. *14 impending adoption of the of the child. to this Essential holding lacking father, awas that the determination parental relationship child, with the had no constitutionally protected relationship in interest by with the child' which to be his failure would be offended adoption proceedings. notified Supreme noting in Lehr, United States Court biological there ais “clear distinction between a mere relationship relationship and an actual re- sponsibility,” quoted by approval a statement Jus- in tice Stewart Caban: parent “Even if it be asumed that each married after process right divorce has some substantive due to main- parental relationship,
tain his or her v. Or- cf. Smith ganization 431 U.S. Families, Foster 862-863 (opinion concurring judgment), by it no means fol- parent right. any lows that each unwed has such Pa- spring biological rental do not full-blown from parent They require connection between and child. rela- (emphasis tionships enduring.” U.S., more at original) slip op.,pp. 10-11). Supreme The United States then Court further said following: in the footnote paragraph “In the of that balance Justice Stewart relationship
noted that the between a father and his natu- acquire may protection ral child constitutional if the marriage father enters into traditional with the mother or if ‘the actual relationship between child’ father sufficient. serts that at this time he offered to financial assistance up Jessica, and to set a trust fund for but that Lorraine refused. stayed away Lorraine threatened Lehr with he arrest unless permit him
refused to see Jessica. Thereafter Lehr retained early requesting December, 1978, counsel who wrote to Lorraine threatening permit legal that she Lehr visit Jessica and action 21, 1978, perhaps a.response December Lehr’s behalf. On legal action, appellees adoption Lehr’s threatened commenced the Lehr, pp. (White, dissenting) slip J., op., action at issue here.” 2-3. “ child, carries and bears the ‘The mother validity is clear. The sense her gauged by other claims must the father’s measures. the By tradition, primary measure has been legitimate with the relationship he creates familial marriage By definition, with the mother. child question marriage only no such us can arise when before actual rela- place. In circumstances the taken some has may create suffice to tionship father and between *15 comparable to parental in the father interests unwed Illinois, Stanley v. father. Cf. those of the married supra. the with But here we are concerned of may and those wishes father have when his unwed conflict, interests best in and the child’s mother are by It mother. are a in favor of the served resolution legal tie with seems mother of a to me that the absence place appropriately may in such circumstances claims constitutional a limit on whatever substantive might actual the father’s otherwise exist virtue of ” 16, slip op., Lehr fn. relationship with the children.’ (Stewart, J. Caban, pp. quoting at 397. 11-13 U.S. added.) dissenting.) (Emphasis Although J.L.W., suggested that due this court in any process might require finding unfitness before a of terminated, spe- parent’s parental are natural only parent holding physical who had related to a cific months of the custody of for the four the child first every time “from the she child’s life whose action pregnancy her a concern for the learned of showed J.L.W., she 2d at 137. Unlike was to bear.” 102 Wis. already Lehr, parent had J.L.W. was a case where responsibilities to the “demonstrated a full commitment Thus, parenthood.” p. Lehr, slip op., 12. this court’s require holding J.L.W. that a in does not failed unfitness made where the father has be relationship the child. with establish case, by clear and In this the trial court found con- vincing evidence that should B.B.’s opportunity terminated because he had the but failed parental relationship establish a substantial with agreed Girl K. We determination. B.B.’s fail- this parental relationship ure to establish substantial under equivalent of the statute is the a failure to “demon- responsibilities par- a full strate commitment to rearing by ‘coming participate enthood forward to in the ” slip op., p. of the child.’ 12. Lehr, personal A natural father’s interest contact with protected process his child under the due clause be- society’s protection cause of belief relationship. slip op., p. signifi- familial 12. The Lehr, “ of this cance ‘to individuals involved society, and to stems from the emotional attachments intimacy that derive from the daily association, plays way ‘promot[ing] it from the role of life’ through the instruction well children as as from ” relationship.’ quoting fact of blood Id., Smith Or- ganization Equality Reform, Foster Families (1977) (quoting 431 U.S. Yoder, Wisconsin v. (1972)) added). (emphasis 406 U.S. 231-233 although opportunity prison, Here, B.B. had the *16 parental relationship establish a substantial with offering support Girl K. Instead of care and to the opposite proceeded child, mother and he did the along path jeopardized only a which not his own future Although but that of the mother and child. B.B. did not opportunity “daily have an association” with his opportunity doing. child, that was lost because his own ignore We cannot this fact nor the fact that B.B. on at attempted strangle least one occasion the mother of his child.
Where a care, father shows so little or con- well-being parental cern for the of his child that his rights may 48.415(6) (a) be terminated under sec. that failure to a establish relation- 448
ship child means that father’s interest with the the protection not under child does warrant contact process process the Due due clause of constitution. the require unfitness before does may under sec. father’s be terminated 48.415(6) (a) 2. 48.415(6) (a)2, final on is: Does sec. issue review equal
Stats., protection clause? violate appeal. The time issue was raised for first This question appeals and concluded court considered this deny equal protection that this statute did not B.B. law. raised for Consideration of constitutional issue appeal discretionary court and first time on is with this justice to do done if “it is in the best interests of will be parties opportunity to so, if both have brief had there factual issues that need reso issue and if are no Examining Bd., Laufenberg Cosmetology 87 v. lution.” (1979) Yellow 175, 187, ; 2d 618 State Wis. 274 N.W.2d Inc., 142, 158, Freight System, Wis. 2d N.W.2d (1981). requirements case, this are met. In these Further, appeals opportunity the court of had opinion ques examine on the and render an issue our tion. We therefore will exercise discretion to con sider the issue. a statute discriminates on between
Where its face subject females, scrutiny it under the males Equal Protection Clause Fourteenth Amendment. - Mississippi University Hogan, Women v. U.S. slip -, op., p. (July 1, 1982). For a statute which gender upheld, discriminates on there basis showing govern- ‘important must be a it “serves objectives discriminatory mental and that the em- means *17 ployed’ ‘substantially are related to the achivement ” objectives.’ Hogan, slip op., pp. quoting those 5-6 Wengler Druggists Co., Mutual Ins. 446 U.S.
(1980). applied This test must “free notions fixed concerning the roles and and abilities of males females.” Hogan, slip op., p. However, 6. where a statute draws distinction between classes all of one where the members possess possessed by class characteristic not all the class, members of the other fact that the distinction “gender-based” give presumption should not to a rise Equal that the Protection Clause been violated. Cab has Mohammed, an v. (1979) 441 U.S. 409-410 (Stevens, J., dissenting). majority held that a York Caban New statute gave wedlock,
which mother children out of born children, power but not the father of such veto over the adoption Equal of the violated the children Protection Clause of Caban, the Fourteenth In Amendment.
children
years
involved were four and
old at
six
adoption proceeding.
time
The father had lived
with the
family”
mother and children as a “natural
years prior
proceeding.
several
to the
In his dissent
Justice Stevens
exception.
conception,
He noted that
from
“on
through pregnancy
infancy,
the differences between
important
impact
male
and female have an
on the
destiny.”
agree. During
child’s
forming accept help within her. cannot She but ex- significant responsibility protection ercise for the *18 tied inti- of the her own welfare is care child because mately to the child’s. purpose 48.415(6) (a)2 promote the is to
The of sec. insuring rights of interest a child while that best of re- a substantial a father who has established lationship Both child not be terminated. with the will may unwed mother have the state and the terminating father of a interests relationship had with the who no substantial child. gives sup- fathers incentive care statute during pregnancy in- port for the and child mother fancy. Further, prompt of it allows for a determination might desired, that, the status the child so if the child adopted family a that wants child. be into upon applied in this case is not based
The statute as “proper” of males fixed notions of what roles Supreme The United States Court females should be. recognized Lehr existence or non-existence “the relevant evalu- a substantial is a criterion ating parents and both the the best interests op., p. Slip of the child.” 18. The statute here is based upon recognition biology that for women dictates that during preg- they provide support for a care and child nancy. For men that care and must however, may voluntarily given. accept may Men or not significant pro- responsibility for exercise the care and during pregnancy; tection of the have it women upon men, For thrust them. failure establish sub- parental relationship is the stantial after a child is born abandoning neglecting equivalent of a married father for a of unfit- child which can be the basis his And, Supreme ness. the United Court in Lehr States noted, partici- “if had not ‘come the father forward rearing Equal pate child, nothing in the preclude from Protection Clause the State [would] [] withholding vetoing privilege adop- from him the ” Here, termi- op., p. while Slip 19. tion of child.’ availability than the rather nation issue, equal adoption at is over the child’s a veto substantially question protection same. Equal applied does violate statute as here *19 Amendment. the Fourteenth
Protection Clause of ap- of agree and the court the trial court We amply supports termination of peals record here that the rights.12 parental B.B.’s appeals of is of the court
By the Court. —Decision affirmed. (dissenting). majority af-
BEILFUSS, The C.J. of B.B.’s firms the trial court’s termination statutory grounds rights, holding for involun- tary process does not met and that due termination were finding termina- require of unfitness before a sup- the record this court does tion. Because before grounds met, holding statutory port were process requires of un- a I due believe because rights terminated, I dissent. can be fitness before B.B.’s glosses of the interest majority the nature The over hearing. involuntary There in an termination at stake of of the nature I with an examination fore must start termination. must be accorded before which B.B.’s protected parent is and child between constitutions. by of and federal Due Process Clauses the state Quil Walcott, 246, (1978); v. 255 434 U.S. loin 136, J.L.W., 118, 2d 306 N.W.2d In Interest 102 Wis. of Su- (1981). and the United States Both this court 46 12 1 of her footnote Abrahamson in Justice The statement majority alleging of treats termination that “the dissent increasing legisla punishment crime, a for a thus like by adding a tively penalties prescribed of crime for commission penalty, conclusion of is an unwarranted new loss child” simply incorrect.
452 preme consistently recognized firmly have Court principle parents established that natural have a funda liberty care, manage custody mental interest in the Santosky Kramer, ment of their children. v. 455 U.S. therein; (1982), 745 cited In Interest cases D.L.S., (1983); 180, 112 2d 332 Termi Wis. N.W.2d 293 Rights T.R.M., nation Parental 100 Wis. 2d (1981). right 581 N.W.2d conceive and raise essential, one’s own child has been described as one of precious our property basic civil and more than rights. Stanley Illinois, v. (1972). 405 U.S. right
The fundamental
nature
is not affected
by the fact that
the child was born without
the benefit
marriage ceremony
parents.
between the
The United
Supreme
States
Court
in recent decisions has
it
made
parental rights
putative
clear that the
fathers are also
protection.
entitled to constitutional
Caban v. Moham-
med,
Quilloin
(1979) ;
Walcott,
U.S. 380
v.
434 U.S.
(1978); Stanley
Illinois,
(1972).
This fundamental parens patriae power by absolute, qualified but is children, which protect interests the best the state to parental requires termination circumstances some rights termination of rights. But because parent” such of a “implicates the fundamental respect high order of accorded a “must be show paramount circumstances until must be considered rights.” Termination parent forfeited these that the has There- Rights at 689. T.R.M., 100 Wis. 2d Parental terminating followed in procedure that must be fore rigorous. parental rights necessarily is involuntarily termi- procedure in Wisconsin grounds nating must be sat- statutory threefold: is 48.415; except isfied, in unusual circumstances sec. must unfit;
parent and the termination found must be J.L.W., In Interest interests. be in the child’s best (1981). Further, as 2d 306 N.W.2d Wis. process and recognized by majority, due Wisconsin seeking show party termination require that the statutes convincing termination clear and evidence Santosky 1979-80; 48.31, appropriate. Sec. Stats.
Kramer,
(1982).
My leads me to conclusion review of the record requirement statutory grounds nor the that neither the the ma- I address first of unfitness were satisfied.1 grounds statutory termina- jority’s holding that the 48.415(6) (a)2, Stats., allows for tion were met. Sec. if he an unwed father’s termination of relationship” a “substantial does establish adjudication paternity. This prior with his explicitly of the father’s directs considerations statute *21 con- the child from toward both the mother and conduct through paternity ception the determination. challenge finding trial court’s termina not the B.B. does Baby promote is best interests and that issue would Girl K.’s
tion the before court. not language majority
Contrary statute, the the the solely pregnancy during relies on B.B.’s actions L.K.’s finding statutory to affirm the trial court’s grounds ignores during and were met his conduct Baby adju- nine months between Girl K.’s birth and paternity. assuming dication of Even that B.B.’s con- during pregnancy complete duct L.K.’s showed a dis- regard for the health welfare the unborn child (which support), mother and the the record does immediately there is evidence in record that after Baby consistently demonstrated, K.’s birth B.B. Girl through legal correspondence process parents County court, trial partment foster Marathon De- Services, his Social interest and concern daughter for his and his her after his desire raise majority release from criminal confinement. The com- pletely ignores Baby the first nine months of Girl K.’s solely pregnancy. life, and relies on the nine months of application an This is erroneous unconstitutional 48.415(6) (a) Clearly sec. 2, Stats. B.B.’s conduct dur- ing Baby equally important Girl K.’s life is at least the determination of whether he established daughter gestation period. with his as the application Rather, the correct of statute is examine B.B.’s from conduct the time he learned pregnancy adjudicated (here by to the time he was motion) own Girl A K.’s father. review light entire record in this to the leads conclusion that the trial court’s that B.B. failed to establish parental relationship “clearly errone- 805.17(2), ous.” Sec. Stats. The review of the record before the court somewhat
complicated by the fact that there is in the evidence rec- relating ord as a whole to the issue of establishment parental relationship” pre- a “substantial sented at the termination which was not
hearing nor considered *22 began judge. I an examination of the evidence trial hearing. presented There un- at the termination was disputed that not evidence the father did contribute expenses pregnancy that arose before he was incarcerated, although the funds to do It is he had so. undisputed physically that on occasion B.B. also one pregnant. Finally, assaulted L.K. it while she was B.B., disregard undisputed that on two occasions welfare, smuggle marijuana L.K.’s asked L.K. to into the prison. All this evidence militates toward B.B. was concerned for the welfare either baby. mother or
However, testimony other of the mother shows K., B.B. did have a concern for both her and Girl during pregnancy. both The evidence dem- after “happy” onstrates that he learned of the B.B. was when pregnancy, marry mother, spent intended to “every day” with the mother until his incarceration. Her testimony during pregnancy established that he did pay expenses following her dental and that his incar- telling worry ceration she wrote to B.B. him not to about expenses pregnancy. Finally, her the evidence hearing following introduced at the indicates that his repeatedly through L.K., incarceration informed B.B. telephone conversations, willing letters that he was provide by for both mother and the placement in his mother’s home until he was released.2 majority chooses one sentence from one letter to demon only strate that in his letters to L.K. showed that his interest B.B. perpetuate (Supra, in the child was to his with L.K. 4). p. majority point n. fails to out that in this same let ter, along record, with the other letters contained in the B.B. on speaks number of occasions of his for the mother and concern during pregnancy child, both after and his intent both them. The record also contains a letter to the trial chaplain court from the of Kettle Moraine Institute Correctional expresses opinion genuinely he which that B.B. was inter- in the interest that made his presented evidence
B.B. filing Interest. of Parental Declaration child known in the record of the evidence the extent If this *23 it interest, relating had whether B.B. shown to trial question whether the court’s a much closer would be ability judge’s upheld on the trial based should However, credibility. and assess the witnesses to view the trial court in the record of information other there is directly on the presented to court which bears responsibil- attempts to assume B.B.’s issue of 48.415(6) Baby the terms of sec. ity K. under for Girl (a) 2, Stats. fact to the references in the record are
There parents, wrote to the foster B.B. since the child’s birth legal cus- judge Department had which the trial and the requesting photographs and infor- Baby K., tody Girl welfare, ex- placement and mation on child’s and placed with his pressing have the child his intent family care for released and could until he was mother’s that on one himself. The record demonstrates the child rejected judge explicitly B.B.’s at- occasion the trial stating that tempts daughter, with to communicate his premature paternity until estab- such action was whole, Further, at as a lished. when the record is looked consistently it since the child’s birth is clear through legal attempted process to dem- father had and concern for the child onstrate his interest and light B.B.’s intent for the child.3 In his by daughter not motivated an intent to retain ested his and was with mother. attempts through legal process to assert his interest B.B.’s Baby Less after her Girl are as follows: than one month K. Interest; birth, an initial filed a Declaration of Parental at B.B. hearing “Chip’s” petition L.K., in on the filed B.B.’s counsel placed his mother formed the court that B.B. wanted the child with release; August petition deter until his B.B. filed a custody summary paternity mination and a motion for opportunity ability personally provide limited care Baby following K. Girl his incarcera- (five pregnancy) tion months into the and the funda- right issue, mental nature of the at I find the informa- attempts through legal tion in the record of B.B.’s process correspondence to assert his in his interest especiallyimportant. child to be
This information was in the record before the trial court when it made its determination that terminated, should be but the record demonstrates that the trial court did not consider this evidence. Rath- findings explicitly er, court, fact, the trial in its present any found that B.B. “failed to at- evidence tempts part parental relationship establish a attempts child, K. Girl such as to contact said persons caring write to for said child or to send the child gifts.” cards or entire record before this court *24 simply support finding. majority per- does not this petuates very by ignoring the trial error court’s also this important relevant and evidence.
On the basis the entire record before this court and finding court, the trial I believe that the trial court’s grounds statutory involuntary that termination unsupported by However, were met to be the record. record, because of the nature of the evidence in the I hearing would remand the action for a new on this issue simply finding grounds statutory rather than that the attempts were not met. Some of evidence of B.B.’s which, to contact the child to consists references letters are in the record and their un- actual content is actually Further, known. some of the evidence that is judgment paternity; hearing pa- on the issue of at an initial on the ternity petition petition and L.K.’s to terminate B.B.’s right, B.B.’s counsel asked the court to allow B.B. to communicate daughter through Department Services, with his of Social legal custody which had Girl K. may contained in the properly record not have been be- fore Finally, the trial court. I believe the trial court position credibility is a better to assess such especially important evidence and witnesses. This is guardian this case because L.K. and the ad litem state by solely B.B.’s concern for the child is motivated his to desire effect a reconciliation with the mother. any B.B. denies such motivation and there is some evi- showing genuine, dence in the record that his interest supra. see 2,n. simply position This court is not in a to make an informed decision this issue which involves credibility determination. For these I reasons believe granted authority this issue should be retried under 751.06, this court sec. Stats. majority process also holds that due does not re-
quire parent that B.B. is an unfit before parental rights disagree. can be terminated. I The ma- jority Supreme relies on the recent United States Court - - Robertson, decision in Lehr v. (June 27, U.S. 1983), position. I believe their reliance misplaced. on the Lehr decision is First, addressing court Lehr was the limited statutory issue of whether the New York scheme ade quately protected putative opportunity father’s parental relationship form a child, with his that he such would then adoption proceedings. be entitled to notice of Lehr, - U.S. - , slip, op., p. 14. The New York statu tory scheme under absolutely review Lehr has no similarity 48.415(6) (a) Stats., sec. Lehr thus at only very has applicability best limited to the instant *25 case. Quilloin I holding
Second read Lehr to fall into the Walcott, (1978) 434 interpreted by U.S. 246 this court in In Interest J.L.W., 102 Wis. 2d (1981). N.W.2d In J.L.W. the court held that “ex- cept under unusual presented circumstances like those Quilloin, process protections in the due the state and prohibit federal of a natu- constitutions the termination parent’s rights, parent ral a unless is unfit.” Wis. Quilloin 2d at 136. The unusual circumstances in which the court to without allowed terminate a of unfitness are as an unwed father follows: attempted adoption by block the his son the natural years mother and her husband when the child was eleven custody old and had in the life. been mother’s his entire custody seeking The father never had cus- and was tody adoption but wanted to block the which ter- would rights. rejected minate his The Court argument process, father’s that he was denied due stating: “We have little doubt that the Due Process Clause attempt would be the offended were to force State family, ‘[i]f breakup objections aof natural over the of of parents showing their children, without some unfitness and for the sole so reason that to do
thought in the best Smith v. be children’s interest.’ Organization Families, Foster 431 U.S. 862-863 (1977) (STEWART, J., concurring judgment). in But any this is not a case which the time unwed father at had, legal sought, custody actual or of his Nor child. place proposed adoption case in which the would parents the child with a new set of with whom the child Rather, adop- had never before lived. result give recognition family tion in this case is to full to a already unit existence, a result all desired con- cerned, except might appellant. required Whatever situations, in quired say other we cannot that the was re- State anything this situation find more than that adoption, legitimation, and denial of were in the ” ‘best interests the child.’ at 434 U.S. 255.
Similarly, Lehr, putative any had father “never significant custodial, personal or financial (with child), legal and he did not sek to establish - years tie until after she Lehr, was two old.” U.S. -, slip op., Also, p. Quilloin, 14. as in the father was *26 adoption by natural mother the
attempting the block custody birth. since who had had distinguishable clearly from in are facts this case Quilloin a situation as and Lehr. This is not those parent displayed Quilloin the Lehr where natural although child for life interest the its entire almost no parenthood and able to well the fact of aware the Here B.B. indicated interest and care for child. has of her con- the child since learned concern he shortly ception requested has after cus- since birth Further, adop- attempting tody. B.B. is not block Baby an tion Girl K. natural mother into Quilloin family Lehr. In this unit as established mother, days re- birth, case the natural three after County custody leased K. to Marathon Girl Department adop- are Social Services. Here there no parents adoption proceedings pending. tive nor Nor could there be until B.B.’s are termi- nated. Thus we “unusual find narrow circum- exception recognized stances” apply in J.L.W. does not process requires and due that B.B. be found unfit before can above, be terminated. As discussed simply record finding does not ma- jority B.B. failed to establish a substantial relationship. He finding is therefore entitled ato of un- fitness before his can be terminated. Stanley Illinois, (1972). U.S.
Further, contrary holding to the ap- of the court of peals, this court can not find that par- B.B. an unfit ent as a matter of law on based the record before this Initially, court. there anis insurmountable constitutional obstacle making court such a based this record —the Due Process Clauses the state and federal beyond constitutions. It is dispute pro- that due cess adequate demands notice opportunity and an to be person heard when a is threatened with termination of liberty a fundamental interest. B.B. was never accorded constitutionally hearing pa- mandated and thus his *27 rights by rental can not be terminated this court. The clearly record that B.B. demonstrates was never noti- petitioner attempting prove fied that was to he parent. an unfit Further, the record that the is- shows litigated sue was never hearing, the termination nor by even peti- either considered the trial or the court tioner. The hearing, issue before the trial court at this and all presented, solely the evidence was directed to question statutory grounds of whether the involun- for tary Thus, alone, termination were met. this basis majority’s parental termination of B.B.’s un- questionably process violates due and should not be sustained.
Further, even impediment, without this constitutional support record is to appeals insufficient the court of holding that parent. as a matter of law B.B. an unfit is required support The finding evidence a very unfitness must be substantial: finding “The a standards for unfitness Wisconsin long deferred,
have as much possible, as rights. however, found, When unfitness it must be upon grounds. based most substantial The standards for long stringent. support unfitness have ing been To a find- unfitness, “ appear [parent] ‘it must that the has “so conducted himself, person or shown himself to a of to de- be such placed scription, or is position, such a it as render merely children, better for the but essential to their safety welfare, very or to their in some serious and im- portant or respect, that his should be treated as lost suspended, superseded or interfered with.” —should’ [Emphasis added.] 264, 266, 369, Lemmin v. Lorfeld, 107 Wis. 83 N.W. (1900). then, It is evident, finding that of un- fitness is a determination that further contact between parent and child seriously will be detrimental to the A.M.K., Right Termination Parental child.” 1981). (Ct. App. Wis. 2d 312 N.W.2d finding simply record does not safety it is Girl K.’s a matter of law essential be terminated. or welfare that B.B.’s holding appeals, of un- court by record,” “clearly stated: fitness was sustained incarceration, prior to his “The trial court found that support for B.B. had care funds available L.K. but incident of to do The court also considered failed so. physical the mother B.B. toward violence during pregnancy requested that fact that he her and the smuggle marijuana prison him twice she into very during demonstrates a pregnancy. least, At B.B.’s conduct her complete welfare to the indifference *28 although B.B. was also that the child. The court found through carry child, in to interested he failed re- that would establish a substantial actions lationship.” appeal’s reference to the failure of B.B. court of a to L.K. and establish by not considered this court deter- can mining finding trial that unfitness because the court’s by grounds statutory supported that met was not were Further, I of one iso- record. conclude that evidence physical requests lated on the and two assault mother marijuana prison not a of law while do as matter convincing by parent make B.B. an unfit clear evidence. goes only un- other evidence in the that to record
fitness the fact is a is that B.B. now incarcerated for according record, burglary conviction, has criminal testimony, drugs” B.B. “dealt and “robbed L.K.’s places.” clearly is While all this evidence relevant to fitness, issue of there are no facts in the record detail- ing any of this evidence. All the record contains is bare facts stated above. Without an examination into actions, the details B.B.’s not unfitness is supportable. inadequate cannot, record,
This court based on this far-reaching finding make the which leads unfitness parental rights. to the irrevocable termination of As Rights stated court Termination Parental to T.R.M., 100 2d at Wis. 689: “An examination of a adequate necessary record seldom make the factual part type determinations are a of this of contro- versy.” I would also remand the action the trial hearing par- court to conduct a fitness B.B.’s ent.
I therefore dissent. I am authorized to state that Heffernan Justices join in Abrahamson this dissent. (dissenting). ABRAHAMSON, SHIRLEY I S. J.
join dissenting opinion.1 Chief I Justice Beilfuss’s separately disagree write jority’s to add that I with the ma- 48.415(6) (a)2,
conclusion that sec. Stats. 1981- equal protection does violate clauses Wisconsin and the United States constitutions. Everyone agrees 48.415(6) (a) sec. un- treats parents differently according gender.
married their 48.415(6) (a) grounds Sec. 2 establishes for terminat- ing parental rights, the unwed father’s not the mother’s. applied I conclude that the statute on its face and as 1 only majority add that I treats termination punishment increasing legisla crime, like a for a thus *29 tively prescribed penalties by adding for a commission of a crime penalty, Slip pp. new op., 13, purpose loss of a of child. 19. place permanently termination should be to children in accordance interests, parent. punish with their best I a would hold penalty rights of of termination commis per punishment sion of a crime se is cruel and in viola unusual Constitution, VIII, tion of the United States amends. XIV and Constitution, I, Wisconsin art sec. 6.
464 unconstitutionally discriminates to the facts in this case against gender.2 men on their based Supreme Court and the United States
Both this court
defining the
struggling
are
with the difficult
issue
Judges
rights
parents
and children.
constitutional
general public,
parents and are not
lawyers,
are
like
highly personal and sometimes emo-
insulated
from
charged
presented in
tionally
these
issues
nature
specifically concerned about
In this case we are
cases.3
rights
process
equal protection
unwed
the due
parents.
recog-
Supreme
first
indicated its
Court
rights just
nition that
fathers have constitutional
unwed
Illinois,
years ago
Stanley
eleven
405 U.S.
answered,
questions
(1972). Stanley
than it
more
raised
major
legal
leaving
issues unresolved:
at
least
four
rights of unwed fathers are
whether the constitutional
proc-
concepts
procedural or
due
based on
substantive
both;
ess
whether all
fathers have constitu-
unwed
only
have
tional
or whether
unwed fathers who
expressed
in the
an undefined amount of interest
protection;
are to
whether
be accorded constitutional
reasoning
necessary
any of the
it is not
to reach
Under this
paren
presented
A court can terminate
other issues
in this case.
rights involuntarily
grounds under
tal
if one
termination
fact-finding hearing.
48.42(1) (c)2,
proved
sec.
48.415
Sec.
DLS,
2d
Stats.
also In
Interest
Wis.
1981-82. See
(1983). Only
the court finds that
465 rights the constitutional of unwed fathers are differ- depending type proceedings, ent example, on the adoption and opposed termination of as custody; to equal .protection whether and are concerns to addressed distinctions un- between married and parents married parents. between male and female Stanley, Supreme Since has oc Court had few to casions examine to the extent which a natural father’s
biological illegitimate relationship with his ac Quilloin protection. corded constitutional See v. Wal cott, (1978), 434 Mohammed, U.S. v. Caban U.S. and, (1979), just days ago, decided four Lehr v. - Quil- Robertson, 27, 1983).4 U.S. - (June Both loin appear due-process and Lehr to address issue applied particular case; gender to a Caban addressed the discrimination issue. legislatures, too, prob-
State have wrestled with the striking lem according a balance between parents ensuring terminations are handled quickly efficiently adoptions proceed. so that can See seq., Recognizing et secs. 48.40 1981-82. Stats. these areas of law as ill-defined, troublesome and I turn to a aspect consideration one of the statute’s constitu- tionality. 48.415(6) (a)2 provides grounds
Sec. that one termination of a father’s shall be 4 question majority’s I haste conclude that Lehr Robert superfluous any process protections son makes due accorded Supreme this state’s statutes or constitution. The Court decided days ago. only parts Lehr v. Robertson four This court has had days two reflect case and the differences between the New York statutes in Lehr I involved Wisconsin statutes. preferred give parties oppor would have an the state tunity possible impact to submit on the Lehr briefs on the issues presented give in this case to enable this court to the consid Lehr Lehr, maj'ority I, ered reflection it deserves. Because the considers reluctantly too, consider it. *31 parental responsibility. failure to
the father’s assume According parental statute, to to the failure assume by showing responsibility may fol- the be established lowing:
(1) not and is child was out wedlock the born legitimated adopted (48.415(6) (a)); or peti- prior
(2) paternity adjudicated to the (a)) parental rights (48.415(6) ; tion for termination of par- (8) a prior did not establish the father adjudica- relationship with to the ental the child although paternity be- tion of the father had reason an had the father of the child and lieve that he was opportunity relation- to establish a substantial ship (48.415(6) (a) 2). with the child (b) phrase 48.415(6) defines the “substantial
Sec. relationship” meaning acceptance and significant daily super- responsibility for the exercise of protection, It vision, education, and care the child. may following which sets forth the factors the court evaluating consider whether a substantial person has “whether the established: expressed support, interest ever concern or for during well-being or or the mother care of the child person neglected pregnancy her or and whether has though per- refused care or even ability opportunity had to do son and so.” gender-based distinction, The whether this issue is allowing mother’s, father’s, the termination of a but not a parental rights parental re- on failure to assume based guarantees equal protection sponsibility violates the federal state constitution. gender-based equal pro satisfy
A distinction can guarantees if tection the United States Constitution ‘important government . . . the statute “at least serves objectives substantially [is] al . . . related seeking objectives.’”5 party those achievement of uphold showing “the statute carries burden of an ‘exceedingly persuasive justification’ for the classificat any gender-based constitutionality ion.”6 dis tinction must examined of fixed notions “free con cerning females,” abilities of males and roles stereotypic free of “archaic notions” about the roles Mississippi University of men and women. Women Hogan, -U.S. -, (1982). 50 L.W. determining gender-based This test whether a distinction is constitutional has been termed the “inter- scrutiny I, accept mediate level” test. course, purposes, test for federal constitutional but for Wiscon- *32 purposes, sin state I constitutional to adhere continue gender-based the view to that because are classifications inherently suspect, scrutiny” ap- the “strict is more test propriate. Discher, v. 2d Clinic 105 Wis. Marshfield 506, 524, (Abraham- (1982) 8 at 314 note N.W.2d 326 J., son, dissenting). any I to continue believe that class- ification personal based on immutable characteristics is “suspect” gender obviously and that is an immutable personal characteristic. is Gender a “visible character- istic determined causes not within the control of the ability individual. It no bears relation to to contribute participate society.” Hewitt Saif, 33, v. 294 Or. 970, (1982). P.2d 653 977 I do not it believe is neces- sary analyze according scrutiny this statute to a strict 5 University Mississippi Hogan, - v. , Women U.S. - 50 Wengler Druggists 5068, (1982), quoting v. Mutual L.W. 5070 from Co., Insurance son, 142, (1980). See also Lehr v. Robert 446 U.S. 150 - - 1983); Craig slip pp. (June op., 27, U.S. v. 17-18 Boren, 190, Mohammed, (1976); 429 Caban v. 197 U.S. 441 U.S. 380, (1979). 388 6 Mississippi University Hogan, , v. Women 50 U.S. (1982), quoting Kirchberg Feenstra, 5068, L.W. v. 5070 450 U.S. 455, (1981); 461 Personnel Administrator Massachusetts v. of Feeney, 256, (1979). 442 U.S. 273
468
standard, however, not with- this statute can because scrutiny. intermediate level of stand the lesser applied I the statute on its face and as conclude that is under the and federal consti- unconstitutional state govern- used achieve the tutions because means objectives “substantially to the are not related ment’s objectives.” I achievement of those first consider wheth- er face the statute on its is unconstitutional. designed important gov
The statute to achieve the is objectives promoting of of interests ernmental the best par child, protecting third interested finality ensuring promptness ties, and termination to facilitate the child’s legitimate agree objectives adoption. I that these are p. important. -, slip op., Robertson, - U.S. v. Lehr DLS, 27, 1983) ; (June 18 In Interest 112 Wis. 187, (1983). 2d Like interest 293 its N.W.2d voluntary has proceedings, the state also termination involuntary proceedings' an interest termination just. ensure that the termination DLS, 180, 185, In the Interest 2d 112 Wis. N.W.2d (1983). only though, gender- upheld, if statute can 48.415(6) (a)2 based distinction in sec. “is structured Mohammed, reasonably ends,” to further these Caban (1979). 441 U.S. agree majority I of a with the the failure
While *33 parent develop parental a substantial ground involuntary proper with the child is a for the Robertson, rights, termination see Lehr v. -U.S.-, slip op., p. 12, that truth is not sufficient enable the attack. statute withstand constitutional why question The state must still answer statutory applies parents criterion to male but not parents. female appear justifications gender-
There to be three may First, argued dis- based distinction. it that justified tinction is automatically because one knows identity mother, but father is neither known nor case, accessible. In this in all cases (a) which 48.415(6) applies, sec. that for dis- basis tinguishing between an unwed mother and an unwed father is irrelevant because re- lationship applicable only putative criterion is after the father has been proceedings, notified of the termination appeared, has paternity and his adjudicated. has been legislature already The provided has a means to termin- ate the of a father who cannot be iden- 48.415(6) (a) tified found. Sec. 1. possible justification gender-based second for the
distinction parents concerns the differences between the during gestation period. majority justi- child’s gender-based fies the statute on the basis of the bio- logical distinction between concerning men and women gestation, just a child’s primarily it relies on the during pregnancy father’s actions to affirm the trial findings court’s that the statutory evidence fulfilled the grounds (see C.J., termination Beilfuss, dissenting, su- pra, p. 453). pregnant Because women can become physically carry can bodies, children within their but men cannot, gender-based majority, reasons the dis- justified. tinction is dispute
I do not biological fact there are agree differences between men and women. But I do not biological these justifi differences are sufficient gender-based cations for this statute. The United States Supreme recently strenuously Court has emphasized that parent’s biological “mere relationship” with a child is Robertson, protection. accorded constitutional Lehr v. -, slip op., pp. 1983). U.S. (June 27, 11-12 - spring “Parental do not the bio full-blown from logical parent connection between They and child. re quire relationships enduring.” more Id., at-, slip op., p. 11, quoting approval Mohammed, from Caban v. supra, (Stewart, at J., dissenting), quoted U.S. *34 445, pp. approval opinion, supra, majority
(cid:127)with in the distinguished “a mere Lehr, In between 446.- the Court biological relationship pa- an actual and responsibility” parent’s role in the by rental the created at-, op., p. p. n. 17. slip Lehr child’s life. biological only the role of The Lehr considered Court in only it, but father, the issue before because biological reasoning applies mother. to a This same reasoning majority’s very premise the the undermines holding biological mere differences between that the preg- mother, is, versus father insemination grounds gender-based nancy, justify distinction as to parental rights. for termination of biological man and Even if the between difference establishing can woman be considered as the basis for grounds father’s different for termination biological parental rights, mother’s reasons based by majority support pointed differences out as gender-based scrutiny. do not withstand distinction According man, majority, woman, unlike a has by choice whether to care for the unborn child car- ing pregnant for the woman and should forfeit he re- the child if does not fulfill his taking sponsibility by care of the the unborn child that, majority mother. a matter na- The asserts ture, “biology care dictates that [the mother] taking [by during pregnancy for a child p. mother, Supra, care of as the 450. The herself].” child, says majority, carrier cannot, choose significant accept responsibility not to and exercise during pregnancy. protection the care and of the child majority only option other asserts that woman’s pregnancy. responsibility than to exercise to abort the Supra, p is, suggest, majority 442. I mistaken during pregnancy. about a role woman’s Biology It only carry dictates woman a child. that a responsibility provid- she does dictate that show
471 ing proper child) (and care for herself thus the unborn or even that she love the child. The mother has con- prenatal recog- which, trol majority over care as the nizes, “important is to the eventual health and well- being Supra, p. of an infant.” 439 and n. 6. A woman disregard during can protection the care and of the child by pregnancy ignoring importance proper nutri- care, tion, exercise, smoking medical by ingest- and or ing dangerous by drugs, alcohol, overuse of caffeine and by gaining weight, by exposing too much or too little her- elements, self to hazardous environmental or sub- jecting herself to A stress. woman’s and care of an voluntary important.7 unborn child are and mother, herself, who fails to care well as take as father, woman, pregnant who to take fails care of the responsibilities fails to fulfill to unborn parental responsibilities child. If to the failure fulfill to ground terminating the unborn child is a for the father’s rights, gives majority why no reason it should not be ground terminating rights. for the mother’s Since during generally pregnancy role is mother’s more im- portant father’s, majority’s according than the to the reasoning, appear jus- it would there even more tification to terminate the mother’s for failing responsibility to assume to than the unborn child the father’s. possible justification gender-based
The third distinc- parents tion concerns the differences between the after- Although requires the birth the child. the statute court look at the of the unwed father to birth, majority the child after the child’s its confines Castello, Getting Ready See Parenthood: A Manual Ex pectant Fathers, Mothers and pp. Hunt, (1957); 45-50 Hess and Complete During Cream, Pickles Ice Guide Nutrition Pregnancy (1982) passim; NIOSH, Pregnancy on Guidelines (1977) passim; Expectant Work Russell, Eastman’s Motherhood Waiting: (6th ed., 1977); A Pre Mueser, 48-87 While Verrilli Guidebook, natal (1982). 25-46 gender-based
reasoning justifying the distinction to following gesta- immediately gestation at most period recognize appears even it supra, p. 449, because tion, biological unwed differences between fathers that the justify treatment to their different cannot mothers responsibility voluntary assume for the child failure to birth. after the child’s majority, relying
Recognizing
fact,
Justice
dissenting opinion
Mohammed,
Caban v.
Stevens’s
(1979),
be-
concludes
the differences
U.S.
*36
might
tween unwed
as a class and unwed fathers
mothers
regard-
gender-based
form a basis for a valid
distinction
ing adoption proceedings where
are
newborn infants
449.)
majority
{Supra, p.
did
concerned.
The Caban
issue,
specifically con-
not
this
Court
decide
and the
assuming
the
even
a difference between
cluded that
fathers
the
closeness of
unwed
unwed mothers and
during
relationship to
child
child based
pregnancy
their
the
afterward,
generalized
immediately
this
and
constitutionally support
gender-
a
difference would not
purposes
adoption,
it
“would
based distinction
legislative
acceptable
become
a
dis-
less
basis for
age
tinctions as the
of the child increased.” Caban
Caban’s,
Mohammed, supra,
anal-
Because for the none of analysis, statute can withstand I conclude that stat- gender-based substantially re- ute’s distinctions are not governmental objectives lated to the and that the statute is unconstitutional on its face. if
Even this on its statute were held constitutional clearly face, applied it is this unconstitutional as case. - explained Robertson, As Justice Stevens in Lehr v. slip op., p. (June -, 27, 1983), statute U.S. at granting regard- father different to mother and ing may termination of their consti- not tutionally applied in those cases where the mother be similarly regard and father are with situated fact relationship majority their with the child. The has generalized naturally mother is closer to her obligation child has the natural to raise the child. though, In case, this relation to the child mother’s during pregnancy explored, was not but we do know that voluntarily the mother child, decided not to raise placing days child outside her home within three may very birth, after its for reasons that well stem from her love for the child and her desire to it allow adopted. to be The trial court found as a fact that the parent. “child had no . .” with . either (emphasis 437). p. Accepting added; swpra, find- this ing court, of the circuit I must conclude mother similarly and father in this case are situated as to parents Nonetheless, child. the statute treats the two differently, apparent for no reason. If mother re- parental rights voluntarily, fused voluntary terminate her in- proceedings termination could insti- against ground tuted her on the that she failed to estab- parental relationship lish *37 apply the statute because does not unwed mother. When one takes into consideration the father’s actual relationship efforts to establish with the child ini- tiating paternity proceedings one month after the child’s expressing child, birth and his it constant interest par- he, mother, ironic that but not the can have rights involuntarily ground ental terminated on this According without of unfitness. Lehr, applied this statute is unconstitutional as case. systematically I conclude that the statute men harms by assuming that even those who come unwed fathers adjudicate forth after birth, a child’s their assert paternity, and make under the reasonable efforts cir- cumstances of the case to maintain ties with differently their children are to be treated from the bio- logical regardless mother of her type systematic with this child. This harm to men only explained habit, product can “be ... as the analysis than reflection,” rather and cannot with- - scrutiny. stand constitutional Robertson, Lehr v. - (slip 17, p. 24, 1983). U.S. op., n. June Sec. 48.415(6) (a)2 subjects disparate men women to treatment when there is no relation between disparity important purpose. and an state Lehr v. - - Robertson, (slip pp. 17-18, op., U.S. June 1983). Accordingly, I would hold that this statute vio- equal protection lates the clauses of the United States and the Wisconsin Constitutions. I dissent. I am authorized to state that S. Justice Nathan joins in this dissent.
Heffernan