*1 Rights In re the Termination of Parental age person of 18: S., a under Marquette Petitioner-Respondent, Wisconsin, State
v. Respondent-Appellant-Petitioner. G., Supreme Court 13, February argument Oral No. 2006AP66-NM.
Decided
June
For the there was a brief and argument by Levin, oral ney, Adam assistant district attor- McCann,
with whom on the brief was E. Michael attorney. district guardian by Cynthia
A ad litem brief filed A. Lepkowski, Koneazny Legal Peter M. and the Aid Soci- ety argument by Cynthia Milwaukee, Inc., and oral A Lepowski. by Karyn
An amicus curiae brief was filed L. Rotker Dupuis, J. Milwaukee, Laurence on behalf of the American Civil Liberties Union of Wisconsin Founda- tion.
An amicus curiae brief was filed Elizabeth A. Neary, Stephen Hayes, Group, W and The Schroeder Gapen, Lynn S.C., Waukesha, Bodi, and Carol Judith Sperling-Newton, and The Law Center Children and Families, Academy Madison, on behalf of the American Adoption Attorneys. by Henry
An Plum, amicus curiae brief was filed J. Society Wauwatosa, behalf of the Children's Service of Wisconsin.
¶ 1. *4 ABRAHAMSON, SHIRLEY S. C.J. This is a unpublished appeals review of an summarily affirming court of decision1 dispositional order of the County Judge Milwaukee Court, Circuit R. Thomas Cooper, terminating Bobby parental rights G.'s to his 1 G., Bobby State v. 2006AP66-NM, No. unpublished slip op. (Wis. 2006). Apr. 25, App. Ct.
534 Bobby biological Marquette. on G.'s admis- son Based interrogatories, court the circuit and answers sions summary judgment partial granted at the the State rights proceed- parental step of termination of first fact-finding phase relating ings, to the for Bobby G. had The circuit court ruled termination.2 Marquette parental responsibility for assume failed to 48.415(6) (2003-04)3 and declared Stat. under Wis. step Bobby parent. of At the unfit as a second G. disposi- rights proceedings, parental termination of hearing testimony, including phase,4 from after tional Bobby was in determined that it G., the circuit court Bobby Marquette's terminate G.'s interests to best rights. parental Bobby appellate
¶ filed a no-mеrit counsel 2. G.'s appeals pursuant report Stat. Wis. in the court 809.32(1). 809.107(5m) appeals, §§ The court report upon record, and the of the no-merit review report adopted and affirmed the order the no-merit sought review, and his new court. G. the circuit pro challenges the termination bono counsel rights this court. before primarily a constitutional raises 3. G. asking
question that it is to decide review, this court rights to terminate father's unconstitutional responsibility failure assume based did not the father when under Wis. Stat. existence until after know of the child's 2 rights are See paramount. phase, parent's In this 1, S., WI 110, 22, 2d 246 Wis. 629 Evelyn Tykila 2001 C.R. v. N.W.2d are Statutes All references Wisconsin otherwise noted. 2003-04 version unless See paramount. interests are this the child's best phase, In C.R., 2d Evelyn 246 Wis. *5 rights Bobby
termination of filed. was G. argues biological that an unmarried father has a con- stitutionally protected opportunity interest in the develop relationship with his child. In the discussion parties issues, raise, constitutional both implicitly explicitly, proper issue inter- 48.415(6). pretation of Because we can resolve the statutory grounds, case we decline to address the presented by Bobby constitutional issues G. Were the any interpret court member thereof to the statute as requiring biological not that an unmarried father have opportunity develop relationship with his child after he child, learns of the existence of the the consti- parties length tutional issue address at would have to be decided. examining grounds
¶ 4. In whether for termina- parental rights tion of existed in the instant case under § 48.415(6), Wis. Stat. the circuit court did not consider Bobby parental responsibility G.'s efforts assume for Marquette biological after he he learned was father adjudi- but before for termination were cated. Rather, the circuit court concluded as a matter grounds phase law that it need not consider at the Bobby petition efforts G.'s undertaken after the though Bobby termination filed, was even G. did not Marquette's petition learn he was father until after the was filed. The circuit court declared that it would Bobby dispositional instead consider G.'s efforts at phase.5 dispositional phase, At the the circuit court held attempts parental responsi- G.'s to assume
5 The State contends that argue G. did not in the circuit court that his conduct after the termination filed was relevant partial summary judgment determina tion, and therefore claim cannot error on review the circuit court's failure to consider evidence he never tried to offer. reaffirming bility before were irrelevant *6 by grounds been clear for termination had established convincing evidence. and forth, that in For set we hold the reasons
determining party seeking of a termination whether convincing by rights proven parental clear and has duty the law, court had the at our case the circuit Under by convincing that hearing to find clear and evidence fact-finding § The had been satisfied. the of Wis. Stat. all elements duty Fourteenth be relieved of its under the circuit court cannot support to chapter and 48 to take sufficient evidence Amendment Evelyn convincing and evidence. finding grounds a the clear C.R., 1, 24, to the nature 246 26. "Due severe Wis. 2d ¶¶ rights, proceedings require termination terminations legal safeguards against erroneous decisions.... heightened the Fourteenth Amendment Clause the [T]he Due Process for '[i]n that order requires United States Constitution and terminated, by clear petitioner the must show rights be Id., appropriate.'" that the termination is convincing evidence omitted). (citations H., Kelley WI V.v. 2004 See also Steven 21¶ 21, 1, 47 271 Wis. 2d 678 N.W.2d grounds phase at the interrogatories The answers the phase should have alerted testimony dispositional at the the material facts dispute a about circuit court that there was justify the established to necessary factual basis was not that the 48.422(7)(c) (relating summary Wis. Stat. judgment. partial Cf. alleged facts admissions; of the accepting an admission before such "[m]ake circuit court shall petition, termination in a a factual basis satisfactorily that there is as establish inquiries Lackershire, 74, 33, 301 admission"); v. 2007 WI State 971.08(1)(b) a requiring (relating to 2d Wis. N.W.2d it inquiry make satisfies circuit court "such charged" accepting crime before committed the defendant fact at may receive evidence A circuit court guilty plea). grounds might decide the it have used to phase dispositional to view case, the court continued In circuit phase. the instant he Marquette after evidence of G.'s child's irrelevant. existence as learned of biological evidence that a father has failed to assume 48.415(6), responsibility under Wis. Stat. biological circuit court must consider the father's efforts undertaken after he discovers that he is the adjudicates father but before the circuit court grounds proceeding. of the termination Thus cir- proceeded cuit court in the instant case an under interpretation Accordingly, erroneous of the statute. fully developed; the facts were not to the extent facts developed, import were these facts and their are dispute. parties disputed whether as-G. parental responsibility sumed after he learned of his paternity adjudication but before Accordingly, dispute, termination. with facts in *7 granting circuit a court erred as matter of in law partial summary judgment. Bobby Moreover, re-G. quested jury a trial, which the circuit denied court erroneously because it found no material facts dispute. inferences therefrom in Neither the circuit deprive Bobby jury nor court this court can of aG. trial by deciding dispute.6 the factual
¶ 6. For the forth, reasons set reverse we appeals affirming summary decision of the court of judgment. We remand the cause to the circuit court for fact-finding hearing a in accordance with Wis. Stat. grounds 48.424 to determine whether exist ter- parental rights Marquette mination of G.'s necessary, dispositional hearing and, if for a in accor- dance with 48.427 on whether G.'s rights should he terminated best interests Marquette.
6 A
may
circuit court
direct
a verdict in the
phase
of a
termination of
rights proceeding.
County
Door
S.,
(Ct.
460, 465,
DHFS v.
Scott
2dWis.
I pre- Although case as we have discussed this forget senting question case law, cannot this wе hangs boy in the balance. fate still affects little whose Marquette, who is a child named At the heart of this case August 2003, Denise but has never 31, on W. was born hospital discharge from the with his mother. Since lived exclusively Marquette his birth, has lived after Jeffrey parents, commit- Karen, who are Dr. foster Marquette given adopting Marquette and have ted to prematurely extraordinary Marquette was born care. problems that have re- health and has faced serious significant quired attention. medical Marquette's A case was initiated CHIPS7 Welfare Child the Bureau Milwaukee behalf September at not married the time 2003. Denise W.was conception Marquette's at- birth, the State so identify Marquette's biological tempted father. Earley Marquette's initially as named S. Denise W biological court 3, 2003, the circuit On October father. genetic Earley S., which on November test for ordered a biological Marquette's Earley as 11, excluded S. 2003, day, following J., John Denise W. identified father. The Marquette. possible In Febru- father Sr., as another ary Sr., also excluded however, J., John biological Marquette's 2004, Denise W father. In March "Bobby" potential not father. Denise W. did as a named *8 "Bobby." for or address have a last name County April the Milwaukee ¶ 13, 2004, 9. On Marquette Judge Martens, found Court, Kevin Circuit pursuant protection and services child in need of to be a to Stat. 48.13. Wis.
7 protection in need of acronym for "child an CHIPS is § 48.13. See Wis. Stat. services." petition
¶ 16, 10. On June 2004, the State filed a parental rights Marquette, to terminate Denise W.'s to parental rights Marquette's biological as well as the parental rights father.8 The for termination of " 'Bobby' any named and unknown father" as Marquette's biological father. The Bureau of Milwaukee began identify Child Welfare efforts and locate "Bobby." By August 24, 2004, the Bureau of Milwau- "Bobby" Bobby
kee Child Welfare had identified G. and served him awith summons for the termination of rights proceedings August Bobby 27, 2004. only G. learned about Denise W.'s child when he was served with the summons. Bobby adju-
¶ 12. On 24, November 2004, G. was Marquette's dicated father aas result of court-ordered genetic testing. parеntal rights The termination of case adjourned January Bobby was then 2005, to allow toG. obtain counsel. January Bobby 13. On 11, 2005, G. made appearance proceedings,
formal testing in the termination con- demanding jury
the termination and trial. Throughout parental rights proceed- the termination of ings, Bobby emphasized G. that he wished exercise right jury his to a trial on the issue of termination. part parental rights 14. As of the termination of
proceeding, following the State submitted the eleven requests Bobby G., admissions G. "yes" answered to each: Denise W's rights terminated, to Marquette were only this review concerns the termination of G.'s
parental rights to Marquette. *9 Bobby has never as- G[] Admit that #1: Admission S[]. responsibility Marquette for sumed Bobby G[] has never estab- #2: Admit that Admission with relationship substantial lished S[]. Marquette Bobby has never exer- G[] #3: Admit that
Admission daily supervision responsibility cised Marquette S[]. has never exer- Bobby G[] Admit that
Admission #4: Marquette S[]. responsibility for the education of cised Bobby G[] six months #5: Admit that went Admission having contact with longer face to face or without Marquette S[]. Bobby unaware G[] #6: Admit that was
Admission June until after Marquette S[] the father of that he was 16, 2004. in- Bobby G[] was not #7: Admit that
Admission for, assisting in, pre-natal or providing volved Marquette S[]. care of Bobby G[] went six months #8: Admit that
Admission any with longer having communication without S[]. Marquette Bobby paid has never G[] #9: Admit that
Admission S[]. Marquette support child met Bobby never G[] has #10: Admit Admission S[]. Marquette unaware G[]
Admission #11: Admit S[] until he was Marquette father of that he was the indicating paternity. his results informed of DNA test interrogatories The State also submitted interroga- for admissions. along requests with the G.'s the nature tories probed *10 Marquette, including what efforts Bobby G. had made provide and for Marquette Denise The inter- W rogatories requested information Bobby about G.'s con- 2005, duct through April 20, is, including period of time after the termination of parental rights had been filed. of Many Bobby G.'s to the responses inter-
rogatories support admissions that Bobby G. took no steps assume parental before he responsibility learned of the existence of his son.9 Several of the instance, Bobby For G. was asked the following questions and supplied following answers: Interrogatory your any petitionеr's #1: If answer to First Set
Requests anything unqualified for Admissions was other than an admission, please detail, every admission, set forth in for each and your response identify the factual basis for and all documents and support any way your witnesses that inor relate to answer. Response 1:
No answer. Interrogatory date, location, #3: Please list the duration and every Bobby any nature each and G[] contact has had with parent Marquette 31, 2003, August S[] foster April between and 20, 2005. Response 3:
None Interrogatory steps Bobby #20: list G[] Please all has taken to parental relationship establish substantial Marquette with SO. Response 20:
None.
Interrogatory steps Bobby #24: list G[] Please all has taken to significant responsibility exercise Marquette for the care of S[]. Response 24:
None. demonstrated, how- interrogatories responses he of his son's existence after learned ever, that with his son efforts to communicate made repeated G. relation- a parental interested developing and was after he interrogatories, According ship.10 father, G. com- he was Marquette's learned that assigned caseworkers municated note, Bobby following questions and Of G. was asked following answers: supplied location, Interrogatory date, duration #4: Please list any every Bobby G[] has had with contact nature of each since Welfare] Child social worker [Bureau BMCW of Milwaukee
August *11 Response 4: February, 2 letters to BMCWcaseworker.
Month of Caseworker, March, to several calls 1 letter to BMCW Month of Lake. from Caseworker at Fox BMCWCaseworker Specific dates unknown. Bobby every
Interrogatory date on which Please list each and #5: Marquette S[] attempted with between to visit or communicate G[] 20, 31, 2003, April August Response 5: February, BMCWCaseworker 2 letters to
Month Caseworker, March, calls to to several letter BMCW Month at Fox Lake. from Caseworker Caseworker BMCW Specific dates unknown. Marque- inquire attempted to about in an effort
All contacts were attempts him. S[], to contact his welfare and tte response Interrogatory every listed in to For each and date #6: why #5, еvery Interrogatory please no visit commu- list reason occurred. nication
Response 6: any Bobby G[] did not return contact worker
BMCW occasion. inquiring Marquette's case, how he could establish communication with his son. Thus the circuit court was grounds phase proceed- aware at the termination ings attempting that G. was reach out his son. 27, 17. On 2005, June the State filed notice partial summary judgment.
motion and motion argued summary judgment inappro- G. priate dispute because there were material facts in jury he wanted a to decide them.11 September year 18. On 2005, more than a petition filed, after the for termination was the circuit argument partial court heard on the State's motion for summary judgment. argued given Bobby The State Marquette admissions that he G.'s did not know about prior filing petition to the of the for termination of parental rights developed and had not a substantial Marquette prior filing parental rights, for termination of the State summary judgment was entitled to on the issue of 48.415(6) whether existed under Wis. Stat. 11In response opposition his brief in to partial summary judgment, Bobby G. contended: Stats, jury Section Wis. that a states must consider *12 respondent accepted significant whether the has and exercised responsibility daily supervision, education, protection for the and jury of care the child. The must further consider whether the respondent expressed has ever concern for or interest in the support, being neglected care and well child or has or provide support Finally, jury refused to care for the child. respondent expressed any must examine whether concern or support during pregnancy. Respondent argues for the mother her prior that his actions birth the child whether he has provide support refused to care and have not been addressed in the interrogatories admissions or and therefore are an issue for the
jury. G. Bobby G.'s Bobby rights. opposed terminate file a but he did not supporting summary judgment, it was a "factual case" argued Bobby affidavit.12 G. for a jury. motion for the end of the hearing 19. At the circuit court the State's granted
summary judgment, for termination was motion, ground declaring court's unfit. circuit Bobby and that G. was proved had failed to ruling Bobby for its was that G. sole basis he even knew parental responsibilities his before assume child. The circuit court biological existence of his stated:
And, it frankly, there are no factual issues as quite He didn't know he was the relates to a failure to assume. father; no facts. part. [sic] didn't take There is other jury to are for the consider dispute There no facts summary grant going I am the State's motion it to the father judgment on failure to assume as relates Marquette. uneasiness with expressed 20. The circuit court on a failure to Bobby rights G.'s terminating he the time when during responsibility assume parental son, describing did not know of the existence of his of the situation as follows: unfairness say I didn't that these kinds I'd be less than honest if your client here as it relates to fact described situations very my mouth. That [Bobby bad taste in G.] leaves is, of an it is there is a kind But what euphemism. somebody wrong unfairness; something about there is affidavit, Bobby an Although G. not submit did record interrogatories were sworn admissions G.'s signed responses had his court. G. the circuit before interrogato State’s and the request the State's for admissions on June open under oath in court ries *13 father, who didn't know he was the out finds he is the father, right thing biological wants to do the his child prohibited doing and is from so. That is the unfairness of, thing kind and that is the leaves bad taste. 21. The circuit concerns, court also expressed however, about the child, best interests of the stating follows: [f]lip maybe just is
[The] side this child is the bi-product of an [sic] act sexual and that is all that intercourse his involvement was. And then have we to deal with the best interests of the child. What is best for this little child, really because that is what the best interest phase is about. It's about the is equal footing child parent with the as to what is best for that little child. maybe And I think says the caselaw even it probably is stronger in a position than the parent.
My concerns in terms can fairness be taken care of in this phase, second Iwhy asked the attorney district I position their on that. believe the your concerns [Bobby G.] client can prop- mentions be erly addressed. 25, 22. On October the circuit court held a
dispositional hearing to determine whether termination of Bobby G.'s parental rights would be in Marquette's best interests. 23. The State one presented witness, Dr. Jeffrey,
Marquette's foster father. Jeffrey Dr. testified about how he and wife his managed Marquette's special medical and developmental needs, how Marquette had bonded with and had become attached to the foster and how family, the foster family was committed to adopting Marquette. Dr. Jeffrey also testified that Denise hadW dwindling contact with Marquette, that Marquette had little con- tact with his biological siblings, and that Bobby hadG. never ormet spoken with Marquette. *14 explained Bobby his
¶ He 24. G. also testified. attempts relationship his W and described with Denise According to in communication with her. to remain Bobby testimony, Bobby and Denise met G. W. G.'s they during inmates summer of 2002 when were County They exchanged letters the Milwaukee Jail. Approximately while incarcerated. about four months they jail in from Decem- four were released weeks after Bobby Denise met and had sexual G. and W. ber attempts Bobby G. he made intercourse. stated several repeated her W, but visits to afterward to see Denise his neighbor proved informed him A residence unfruitful. Bobby he G. admitted that that Denise had moved. W try thereafter. to communicate with Denise W. did not Bobby ¶ he had not known 25. G. testified that pregnant and that he was unaware that Denise W was Marquette's he was served with existence until parental rights proceed- termination of summons ings.13 explained Bobby in detail efforts G. also his 26. Marquette upon begin a father-son
learning Marquette's after existence rights Marquette filed.14 was terminate his Bobby G. could have out that points The State's brief Denise of his encounter with learned whether a child came sexual by by registry paternal interest maintained filing W with the See Stat. Health and Social Services. Wis. Department he Bobby step taken this that had G. 48.025. State asserts Marquette Marquette's existence when would have known about old, is, prоceedings began. the CHIPS Wis. days that when was 20 (a 48.27(3)(b)l.a. interest registered paternal man with a Stat. proceedings). receive notice of CHIPS shall record, three letters to G. sent According to reach her manager and tried to case Rachel Dreibelbis girl- receiving response. G.'s telephone, all without In addition to about commu- testifying his nications with the Bureau of Welfare, Milwaukee Child Bobby G. testified that he had enrolled in several programs prison at the he personal development where incarcerated, and alcohol including drug programs, domestic violence and a class on programs, parenting skills.15 After hearing testimony evidence at the
presented dispositional phase, the circuit court concluded that terminating Bobby rights G.'s was in Marquette best Ac- Marquette's interests. knowledging Bobby G. was to do trying right "the *15 child, for his thing" biological the circuit court con- cluded that those efforts came too late. says you
And law if have a sexual intercourse with woman, logical it is presume that that woman would pregnant. become
friend also called the asking photographs caseworker Marquette. Bobby telephoned manager G. case Jenny Kuehn letters, and also her inquiring sent how to communicate with Bobby his son. G. manager, also contacted a third case Ellettra Webster, sending placing phone her letters and three calls to her He speak office. was able to to her phone once on the about Marquette. Bobby also manager pair G. sent the case a (too small) Marquette children's shoes money and a $25 order, father, given Jeffrey, which were not to the foster Dr. until hearing. dispositional 15During the rights termination of parental proceedings, Bobby G. was involved in criminal proceedings court aas result selling cocaine to an in April undercover officer He 2004. trial in the County 1, awaited Milwaukee Jail and on October 2004, years, was sentenced to seven six months in the Wisconsin system, State be years Prison as served two and six months confinement, of initial years followed five of extended supervision. you
Now, practical [that a matter didn't know as things, all of but existed] and those Marquette your obligation a that Court has stated law Supreme at and the point, the child started fact towards things practical a and all those as you didn't know legal a is true in a sense it is not defense. matter but assume, failure to your rights terminated for So were lady had this you that's sex with she because you know were the pregnant became and she didn't time, people you other ahead of but father. She named in time. legal obligation point a from that had The court did not consider relevant 29. circuit Bobby concerning adduced G.'s efforts the evidence Mar- a establish substantial quette. The circuit court announced: testimony great [sic] a deal of the that we took it's
So you today really isn't relevant. particularly relates to court termination circuit ordered parental rights Marquette on November G.'s 4, 2005. appeal, and on filed notice of G. attorney 9, no-merit
March report his submitted appeals. Appellate iden- counsel to the court of possible challenges appeal in the for an tified two *16 argu- report explained why neither had no-merit and merit. able appellate examined whether First, 32. counsel granting had erred in the State's
the circuit court summary Bobby judgment. partial Because for motion relationship with he no substantial admitted had G. Marque- Marquette no to care for and taken efforts had began, proceedings and be- the termination tte before opposition Bobby any file affidavits G. did not cause attesting judgment summary the State's motion express he did concern the child either before or summary appellate birth, after counsel concluded that judgment proper.16 appellate Second, 33. counsel examined whether exercising circuit court had erred its at discretion dispositional stage by terminating paren- G.'s rights. applied proper
tal Because the circuit court law, facts, standard considered relеvant and used process, appellate rational counsel concluded that the properly circuit court exercised its discretion. appeals accepted ¶ 34. The court of the no-merit report by April 25, order dated court of explained appeals its decision as follows: report thoughtfully The no-merit expertly analyze Accordingly, [sic] these issues. adopts this court case, brief no-merit as our own statement independently [sic] conclude that the two issues iden- report arguable in the tified no-merit lack all merit. record, Upon review of our we further conclude that it presents no issues arguable additional merit. Accordingly, affirm dispositional we the circuit court's (internal omitted). order ... citations May G. filed letter to court this guardian 23, 2006, court, State, which this and the ad litem treated as a for review.
I I grant ¶ 36. This court reviews a circuit court's judgment summary independently, applying the same 16Bobby G. asserts in this court that to the extent evidence of his attempts to form a Marquette was not before circuit court when it considered the State's summary judgment, Bobby motion for G.'s counsel was ineffec tive. *17 benefiting
methodology from the circuit court but Summary judgment ap- analysis. is court's the circuit genuine propriate are no issues of material when there judgment moving party as a is entitled to fact and the 802.08(2). of law. Wis. Stat. matter Although relying primarily ¶ on a constitu- statutory analysis, Bobby than a G. as- tional rather summary judgment improper in the serts failed to case because the circuit court consider instant Bobby attempts made to establish the evidence that G. filing peti- of the termination after the Marquette's and after he learned of existence. tion In that under contrast, the State contends 48.415(6), Bobby G.'s conduct after the Wis. Stat. petition filed irrelevant and that for termination was is interpreted so is constitutional. State the statute it has under Wis. Stat. claims established parental responsibility" to assume G.'s "failure admitted facts in the admissions uncontested, interrogatories had no involvement with G. filing conception through Marquette from rights. parental for termination summary judgment at 39. Partial rights proceedings phase of a termination of acknowledged although permitted,17 the court has also V., 5, the held that 2d court In Steven 271 Wis. in certain termi summary judgment granted could be partial grounds. The rights on the issue of nation of cases court stated: phase summary judgment of a TPB case in the unfitness [P]artial summary judgment requirements is available where §§ applicable legal 48.415 standards Wis. Stat. statute and the summary granting partial An been met. order and 48.31 have
judgment where there are no the issue of unfitness legal dispute applicable standards have been and the facts *18 parental rights that not all termination of are cases partial summary judgment. suited for The court has explained grounds likely "[t]he that for unfitness most partial to form the basis of a motion for successful summary judgment parental [termination in a of rights] proof are case those that are sustainable on of judgment reliability conviction, court order or of of generally readily apparent which is and conceded."18 many "[i]n ¶ 40. The court has cautioned [termination parental rights] cases, of the determina- parental require tion of unfitness will of resolution disputes by jury fact-finding factual a court or at the hearing, alleged grounds because the for unfitness adjudication involve the conduct vis-a-vis explained the child."19The court has further that "sum- mary judgment ordinarily inappropriate [ter- will be in parental rights] premised mination of cases on these fact-intensive unfitness."20 48.415(6) § court has identified Wis. Stat. aas fact- ground probably partial intensive not suited for sum- parent's statutory right jury satisfied does not violate the to a trial 48.422(4) 48.31(2), parent's §§ under Wis. Stat. and or consti- right procedural process. tutional due V., In Steven summary judgment we allowed granted to be 48.415(4), § under Stat. ground Wis. which establishes as a parental rights terminate physical placement the denial of visitation court order for more than one year. recently, W., More in County 30, Oneida v. Nicole 2007 WI 637, 652, 299 Wis. 2d summary judg 728 N.W.2d we allowed ment 48.415(10), under Wis. Stat. which establishes aas ground to rights prior involuntary terminate rights termination of parental to another child within the previous years. three V., Steven 271 Wis. 2d 19Id., 20Id.
mary judgment, the court has not held but that this ground partial summary could never form the basis for judgment. "[t]he The court has instead stressed that propriety summary judgment case-by- is determined case."21 summary propriety judgment
¶ 41. The present depends proper interpretation case on the 48.415(6) any Wis. Stat. whether facts or infer- dispute. If ences therefrom are is inter- preted mean, declared, as the circuit court only Bobby prove State need G.'s failure to assume parental responsibility conception between the time of *19 filing parental and the of the for termination of rights, Bobby regardless of whether G. knew or had existed, reason to believe that his child then the facts may summary undisputed judgment be viewed as 48.415(6) § If, however, lies. under a circuit court must weigh parental relation- father's efforts to establish ship paternity with a child after he learns of his but adjudicated, before the for termination are in then the circuit court erred as a matter of law its interpretation refusing statute, of the in to consider summary granting in efforts, evidence of G.'s failing jury judgment, in to accord G. the requested. trial he proper
¶ 42. We must therefore decide the inter- 48.415(6). Statutory pretation interpre- of Wis. Stat. ordinarily question tation is a of law that this court independently decides appeals of the circuit court and court of benefiting analyses from the of these
but courts.
21 Id., 37 n.4.
HHHHI—I our with begin statutory interpretation 43. We 48.415(6). the text of Wis. Stat. as fol- Stat. provides Wisconsin
lows:
(6) responsibility. Failure to assume (a) parental responsibility, Failure to assume which parent that the or the proving shall be established may parent of the child person persons who be never had a substantial with have the child.
(b) subsection, In "substantial relation- this acceptance significant means the and exercise of ship" education, daily supervision, pro- responsibility for evaluating In tection and care of the child. whether parental rеlationship had a substantial with person has factors, child, may such includ- the court consider to, ing, person but not limited whether has ever expressed support, concern for or interest care or child, well-being person has ne- whether glected provide support or refused to care or for the whether, to a is or respect person child and who child, may person he the father of the has ever expressed support, concern for or interest care or well-being during pregnancy (empha- of the mother her added). sis *20 48.415(6)(a) that provides 45. Wisconsin Stat. ¶ failure to assume is for parental responsibility ground termination of Failure to assume parental rights. pa- rental that the responsibility by proof established has never had a substantial relation- parent parental the child. The statute defines with "substantial ship the of "acceptance exercise parental relationship" daily for the edu- significant responsibility supervision, cation, and care of the child." protection 48.415(6)(b) gives following ¶ the non- 46. Section may examples of consider what a court exclusive person evaluating had a substantial whether the has per- relationship the the with child: whether expressed in the concern for or interest son has ever support, well-being child, the care, of whether or provide person neglected care or has or refused to respect support to a child, whether, with for the may person child, is or be the father who person expressed in the concern for or interest has ever well-being during support, her care, the mother pregnancy. express no direc- Section contains 47. regarding consider a circuit court must
tive whether not know or have reason believe that the father did petition for child before of the existence of the deciding the father filed whether termination was when parental relationship had a substantial never child. argues G.'s efforts State petition responsibility after
assume
paternity
after he leаrned
his
terminate was filed and
adjudicated
were
for termination
but before
argument
persuaded
are not
this
are irrelevant. We
reasons.
several
48.415(6)(b)
explicitly
First, Wis. Stat.
relevancy
language
of whether
that evidences
uses
he
the father
knew or had reason to believe was
father
rights
for termination
before
48.415(6)(b)
"[i]n
requires
evalu-
filed. Section
paren-
person
ating
had a substantial
has
whether the
may
circuit court
child," the
tal
with the
here]
[father
person
ne-
has
consider "whether
glected
support
provide
care or
or refused
*21
added)."
(emphasis
"neglected"
child
The words
convey
"refused"
a willful or deliberate
The
omission.
"neglected"
synonymous
negligence
word
is not
support, "neglect"
Rather,
here.
in the context of child
commonly understood to mean a willful failure to
duty
provide support;
support.22
a breach of the
commonly
Likewise,
"refuse,"
understood,
the word
reject
a
involves decision to
a certain choice
of
or course
Accordingly,
"neglected"
action.23
"re-
words
48.415(6)(b)
carry
fused"
with them the sense that
the father knew or had
reason
believe he
was
provide
support.
father but nevertheless did not
care or
deciding
neglects
In
whether a father
or
refuses
provide
support
care or
a
child,
circuit court
22
Cissell,
205, 225,
State v.
127 Wis. 2d
refusal or
We
neglect
negligence
suppоrt
does not mean
in the
context.
Neglect
duty
support.
means breach
2dWis.
at 225. Cissell's interpretation
"neglect"
in the
support
child
context is
understanding
relevant in
Wis. Stat.
48.415(6),
neglected
which examines
a parent
whether
has
provide
refused to
support.
child
23 State ex rel.
v.
Kalal Circuit
Dane County,
Court
58,
7, 54,
WI
271 Wis. 2d
¶¶
§ parent whether a has "ever" well-being child or for in the of the concern or interest expressed for or has concern whether the father "ever" during well-being her of the mother interest in the pregnancy. "Ever" means ever. "ever" in The words "never" and Wis. Stat. 48.415(6) suggest certainly that the relevant do not parental
period for termination consideration filing petition. rights The words of the cases ends at the signal the circuit court must "ever" "never" and including parent's conduct available, a all facts consider a list provides non-exclusive Stat. Wisconsin relevant to its may circuit court consider as of factors failed to assume parent of whether the determination analysis this factor manda Our does not make responsibility. determination; rather, point is that tory in the circuit court's factor, whether court must consider when this a circuit applying the child existed. or had rеason to believe the father knew filed, after the termination was when decid- whether ing a substantial relationship exists.25 Third, the introductory in Wis. language Stat. 48.415 provides that circuit court's finding that ground exists the termination of rights made "at the fact-finding hearing."26 does language This not that the evidence require be regarding grounds limited to what has of the transpired filing date All petition. the statute is that at the requires time fact-finding State hearing prove statutory for termination by clear and evi- convincing dence. *23 25For an of example interpretation "never," an of see State Quinsanna D., 318,
v. App 2002 WI 2d 259 Wis. 655 N.W.2d 752, in which the argued mother that because she had taken care of the years they children for two before were removed home, from jury her the verdict could not find that she never had a substantial relationship with them under Wis. Stat. 48.415(6). § The court declared that "never" does not mean that any indication of an parental assumption responsibility of statute, satisfies the requires but rather the court consider parental the hearing grounds. conduct at the The court of appeals upheld verdict, jury the explaining that 48.415(6)ft)) provides § parental Wis. Stat. that a "substantial rela- tionship" acceptance significant consists of... "the and exercise of for, responsibility" among things, "protection other the and care of Here, jury reasonably the that, child." the could have inferred "daily supervision" [her
because sons] Quinsanna's of twin included daily exposure drug house, her drug of them to own her use and she "significant responsibility" not "protection had exercised for their and care." (citations Id., omitted). 32¶ 26The introductory language § to Wis. Stat. preced 48.415 ing grounds the enumerated for provides termination fact-finding hearing follows: "Atthe jury may the court or make finding grounds a that exist for the termination of rights. Grounds of parental rights termination be of shall one following:...." the 48.31(1), although re- Fourth, Wis. Stat. support upon by the State, not State's does
lied position date for evidence relevant cut-off that parental responsibility assumption relating of filed. Wiscоnsin for termination is the date " 48.31(1) 'fact-finding' hearing provides that a Stat. allegations hearing a if a determine means petition by proved rights are terminate ... convincing that The State claims evidence." clear and necessarily only petition" "allegations include in the filing. urges precede The State its those facts that post-termination petition is admis- conduct a father's grounds only for termination that contain sible predictive not in- does and that element support predictive no element. The State cites clude except jury JI— instruction Wis a comment to acknowledges however, comment, Children 180. period in several the time arises the issue of timing question "the concludes that postpetition prepetition jury's evi- consideration judge in the context trial must resolved dence be ground jurisdictional at issue." § 48.424, which de- Likewise, Stat. Wis. grounds phase fact-finding hearing at the scribes part a termination must occur as that rights *24 proceeding, command the conclu- does not also parent's to a conduct be limited that must sion evidence of for termination the before occurred 48.424(1) parental rights states filed. Sub-section fact-finding purpose "[t]he part: the of in relevant hearing exist for the whether is determine to Nothing parental rights this ...." about of termination pre-petition provision conduct. the evidence to limits 48.424(2) part provides that a in relevant Sub-section according hearing "fact-finding conducted shall be in procedure s. 48.31...This specified provision our 48.31, § directs attention only which we already concluded does limit not of the scope fact-finding alleged the facts in the hearing petition to terminate rights.27 Fifth, State's position Wis. Stat. 48.415(6) is not accord with the express purposes Code, which codifies the statutory provi- Children's sions on termination of parental rights. Our interpre- tation of comports with the purposes Code. legislature expressly intended to pro-
tect, whenever appropriate, biological family unit. As one of the express goals Code, the Childrеn's legislature declared as follows: recognizing
While paramount goal of this chapter protect is to children, children and unborn preserve unity family, appropriate, whenever family strengthening through life assisting parents children, and the expectant mothers of unborn when- fulfilling ever appropriate, their responsibilities as parents expectant or agencies mothers. The courts and welfare, responsible for child while assuring that safety health concerns, child's are the paramount parents should assist and the expectant mothers unborn children in changing any circumstances in the might home which harm the or child unborn child. 48.01(a). Wis. Stat. holding Our does not mean that the State can terminate
parental rights on allegations not included in the petition. The State must adhere provisions. to the notice holding Our directed towards presented the evidence that can be at the fact-finding hearing to support allegations refute the in the petition. *25 parental regard the termination of 58. With legislature expressly
rights, announced has biological families be made to reunite must efforts parental appropriate. The of termination whenever rights supposed efforts at reunifi- to occur until is not goal therefore: failed. The cation have rights at for the termination of To allow and reunifi- time after rehabilitation earliest possible in accordance with this are discontinued cation efforts rights is in the best of chapter and termination of the child. interest 48.01(gr). Stat.
Wis. rights parents' biological are de- Because expressly legislature serving protection, man- rights safeguard parental procedures in fair dated legislature biological in- such, As children. their tended: through which judicial procedures and other provide
To are assured parties and all other interested children legal and other hearings and their constitutional fair enforced, protecting while recognized and rights are safety. public (ad). § 48.01 Wis. Stat. rights, biological parent's course, are A60. only Code Children's interests at stake.
not appropriate attempts between balance to strike biological including competing those interests, child, those of parent with the or her his stability permanence rela- in familial and child in securing tionships, efficient those the State rights speedy of termination resolution legislature that the proceedings. announced Thus, the all instances: families in not reunite need courts *26 they The recognize courts should have the author- ity, in cases, appropriate not to reunite a child with his or her family. agencies responsible and courts child recognize instability welfare should also impermanence family in relationships contrary are to the welfare of children and recognize should therefore of importance eliminating the need for children to wait unreasonable of periods parents time for their to correct the prevent conditions that their safe return to family. 48.01(a). § Wis. Stat. legislature explicitly
¶ requires 61. The that the liberally Children's Code "shall be construed to effectu- legislative § purposes. ate" the stated Wis. Stat. 48.01. legislative purposes 62. To effectuate the stated requires determining a court, circuit whether grounds 48.415(6), § exist under to consider the efforts biological parent parental responsibility aof to assume filing parental rights after of termination adjudication grounds but before of the judicial Furthermore, termination. as a matter of sound a administration, circuit court should make determina- rights tions on with access to the fullest concerning biological parents information and chil- including parent dren, information on whether has parental responsibility up hearing assumed for termination. position Sixth, the State's on Wis. Stat. 48.415(6) § specific is also inconsistent with the statu- tory provisions legislature protect enacted to a putative rights father's a termination of rights proceeding. rights "Terminations parents' affect some of most fundamental human heightened require proceedings rights."28 Termination against safeguards legal For in- erroneous decisions.29 48.42(2)(b)2. protects a nonmarital Stat. stance, Wis. proceeding. right notice of termination father's 48.422(6)(a) (6)(b) putative protect Likewise, paren- right participate at the termination father's rights proceeding. tal interpreta- accept the State's If we were allowing aof evidence
tion of Wis. Stat. filing only up the date conduct father's petition *27 rights, parental the statute would to terminate presumption many create an irrebutable in instances child he the father of a a does not know is that man who filing petition for termination cannot before the responsibility parental for the child.30 assume presumption not in accord of this irrebutable creation statutory protecting provisions with the various rights guaranteeing putative a father's a father and of proceedings. participation We must in the termination statutory holistically interpret to avoid scheme results. absurd position Stat. Seventh, Wis. 65. State's 48.415(6) statutory history of Wis. contravenes 48.415(6), previously enacted is,
Stat. adoption statutory provisions, repealed of from the 48.415(6) governing the 2003-04 version in 1979 until present case. C.R., Evelyn 246 Wis. 2d 29Id., 48.415(6) a the conduct of into account takes Section during There pregnancy. her the mother putative father toward not know he is the man who does might situations which a be a substantial steps establish takes sufficient father-to-be for the care and concern relationship by expressing parental mother. originally
¶ 66. Section enacted in parental 1979 and establishes "failure to assume re- sponsibility" ground as a for the termination of rights.31 statute, In the 1979 the failure to assume parental responsibility may be established demon- strating that the father did not establish a substantial "prior adjudication pa- parental relationship to the ternity although the father had reason to he believe was opportunity the father and had an to establish a sub- added)." (emphasis stantial Section 48.415(6)(a)2. part stated relevant as follows: (a) Failure to may assume responsibility be by showing established a that a child has bеen born out wedlock, legitimated not subsequently or adopted, paternity adjudicated was not prior filing parental rights for termination of and: although 2. That paternity to the child adju- has been 48.423, dicated s. under the father did not establish prior parental relationship substantial with the child adjudication paternity although the father had reason to believe that he was the father of the child and opportunity an had establish substantial *28 relationship added). the (emphasis with child (b) § 67. Subsection of Wis. Stat. enu- merated non-exclusive a factors circuit court could evaluating person consider in whether a has had a parental relationship substantial with the child. One of parent neglected these factors was whether the "has or though provide support refused to person care or even the opportunity ability has had the and to do so" added). 48.415(6)(b) (emphasis Section read as follows in 1979:
31Chapter 330, 1979; Laws of 1979 A.B. 656. (b) subsection, parental relation- "substantial In this significant exercise of acceptance and ship" means the education, daily pro- supervision, for the responsibility the evaluating In whether care of the child. tection and relationship a person has had substantial factors, may includ- child, court consider such the the to, person has ever not limited whether ing, hut support, care for or interest in the concern expressed during preg- the mother her well-being of the child or person neglected or has refused nancy whether the though person support provide had even care or added). ability opportunity so (emphasis to do Stat. amended Wis. 1987, legislature In 48.415(6) (a)2.32 still provided The amended statute prove could failure termination party seeking that by demonstrating responsibility to assume a substantial did not establish that the father adjudication prior child with the relationship person paternity although he to believe had reason amendment The 1987 of the child. was the father language deleted, however, statutory 48.415(6)(a)2. whether addressed expressly that a substantial devеlop opportunity had an father child. biological with his 383, 15;§ 1987 A.B. 978. Act 1987 Wisconsin 446, § ch. the Wisconsin 1983, 1983 Laws Wisconsin In 48.415(6)(a) (intro.) to read as Stat. legislature amended Wis. follows: (a) (intro) may parental responsibility be Failure to assume wodlockj by showing out a child ha3-been-born
established subsequently legitimated has not is nonmarital child who -or a not subsequently parents intermar- adopted have not or whose been prior adjudicated paternity was not s. ried under 767.60, parental rights and: filing petition for termination The underlined stricken-through language omitted. was change further this not discuss language added. We need case. it not affect the instant does because *29 48.415(6)(a)2. 69. Subsection was in amended 1987 to read as follows: although
2. That paternity adju- child has been 48.423, dicated under s. the father did not establish a substantial prior with the child adjudication although of paternity had father reason to believe that he was the father of the child and had-an opportunity to-est-ablish substantial parental parental respon- relationship- with has never assumed sibility for the child.
The insertions are shown by underlining and the dele- tions are shown as stricken. (b) 70. Subsection Wis. Stat.
also revised part as the same bill to eliminate (6)(b) the final phrase subsection stating "even though person had opportunity [to care provide (b) support] ability do so." Subsection as amended (with in 1987 changes) tracked reads follows: (b) subsection, In this "substantial relation- ship" means the acceptance and significant exercise of responsibility daily education, for the supervision, pro- tection and care of the child. evaluating In whether the person has had a parental relationship substantial child, may the court factors, consider such includ- ing, to, but not limited person whether the has ever expressed concern for or support, interest care well-being the child or the during mother preg- her nancy neglected and whether the person has or refused provide or support even-though care the-persen-had the opport-unit-y-and-ability-to do so. According Legislative Research analysis:
Bureau's "This bill modifies the current for an involuntary [termination of parental based rights] on the failure of parent to assume for a responsibility nonmarital child elimi- *30 a it must he shown that in which nating provision a an to establish substantial had opportunity father to a prior paternity with the child relationship parental that it to do so. This bill provides but failed adjudication parental that a father never assumed must be shown of adjudication to the his for the child prior responsibility paternity."33 amendment, 1987 72. As a result of this that prove did not have seeking termination
party a to establish substantial the father had an opportunity child, although biological with his relationship had to that prior still seeking prove termination party had reason to the father adjudication paternity to the of child and had never he the father of the that believe for the child. responsibility assumed parental amended 1989, again once legislature In 34 48.415(6)(a)2 amendment sub- 1989 Stat. Wis. 33 Bureau, Analysis by Legislative Reference See 978, LRB-5180/1, Drafting File on 1987 AB in Bill AB Bureau, St., 1 East Main Legislative Reference available at Wis. Madison, Wis. John Manske of the fiscal estimate accompanying
An Services, Division of Commu- of Health and Social Department bill eliminates Services, "[t]his file states that nity the same a had an that father that it must be shown requirement establish substantial opportunity are avail- adoptive placements non-marital child. Where with a shorten a adoption process, and will speed up will able this care, savings to coun- stay resulting in a cost in foster child's ties." S., 673, 683-84, 500 176 Wis. 2d Ann M.M. v. Rob See also 48.415(6)(a)2. (1993) (concluding that Wis. Stat.
N.W.2d 649 (b) showing longer require "no as amended in 1987 ability to assume and the opportunity had the the father child"). for the responsibility 86; Act 1989 A.B. 272. 1989 Wisconsin language "filing petition stituted the of a for termina- parental rights" previous language tion of for the "ad- judication paternity." party Thus, 1989 the seeking prove termination could failure to assume parental responsibility by demonstrating fa- ther did not establish a substantial relation- prior ship filing to the aof termination parental rights adjudication prior rather than paternity.
¶ 74. After the amendment, Wis. Stat. 48.415(6)(a)2. changes: read as follows with tracked (a) parental Failure to assume responsibility may be by a showing established a that child is a nonmarital child adopted has not who been whose parents have not subsequently 767.60, intermarried under s. that adjudicated paternity was not prior the filing petition for parental rights termination of and: although 2. That child paternity to the adju- has been s.48.423, dicated under the father did not establish a substantial relationship with the child prior to filing petition the adjudication paternity aof parental rights termination of although the father had reason to believe he was the father of the child and has never not assumed parental responsibility for the child. A 75. Drafter's Note included the Wisconsin Legislative drafting Reference Bureau file on 1989 AB change 272 describes the reason for this 1989 48.415(6)(a)2 [as- follows: "The amendment of s. was attorney] Meryl sistant district Manhardt's idea. She said that sometimes it takes 6 months or more to have paternity hearing during this time the father just enough spending time with the child so that starts proven he never assumed that it can't be responsibility."35 expressly legislature and un- The 1989 changed during equivocally relevant time frame seeking party had to termination show which the parental responsibility. The father failed to assume seeking party need to evi- termination would submit only of the lack of substantial dence up petition period for termi- the time when the rights Nevertheless, filed. nation party prior seeking prove still had termination filing the father had of the termination father of the child and that he was the reason believe parental responsibility for the child. had not assumed legislature consolidated, re- In 1995, 48.415(6).36 amended Wis. Stat. numbered, and 48.415(6) unchanged §of remained version govern- through 2005 and is the version of part ing amendment was case. The 1995 the instant Legislative Special prepared the Joint Council's a bill or Ser- of Protection Committee on Children Need *32 vices.37
35 Mazack, Attorney, Evelyn Legislative Drafter's Note frоm drafting file on 1989 A.B. Reference Bureau Legislative in Wis. 272, LRB-0243/lan. clearly expressed was also of the amendment impact
The bring it easier to TPR hill makes "[T]he the Fiscal Estimate: in the circuit court." petitions
36 82m-84; 275, S.B. 501. §§ Act 1995 1995 Wisconsin 37 from Legislative legislators consists of The Joint Council through study functions Assembly and Senate and both the public members. See legislators include and committees County, 2004 WI 58, Dane v. Circuit Court State ex rel. Kalal (Abrahamson, C.J., 633, 2d 681 N.W.2d 271 Wis. 78. The and language structure of Wis. Stat. substantially were in 1995. changed Section 48.415(6)(a) reads as follows with amend- (with shown): ments the insertions and deletions 48.415(6)(a) Failure to parental responsibility assume may, proving he a-shewing which shall established child is-a-nonmarital-child-who not has been adopted whose^parents-have or not-subsequently inter- adju- married under that paternity-was -not S.-767.60, prior t-o-the-filing-of dicated for-t-ermdnatien parent of parental rights-and: -1. person The the or the parent or persons may who be the father of the child given have been net-iceunder-s. 48:42 but failed-to have appear-or the-jurisdiction otherwise submit to person or-persens eeurt that such have never had a parental relationship childyer. substantial with the (b) subsection, In this "substantial relation- ship" the acceptance significant means exercise responsibility daily for the supervision, education, pro- evaluating tection and care of the In child. whether the person had has a substantial relationship with child, may factors, the court consider such includ- ing, to, but limited not whether the person has ever expressed concern for or interest support, in the care or well-being of the during child or-the-mother preg- her and, nancy person neglected whether the has or refused whether, provide care support for the child and respect person may who is or be the father of child, person expressed has ever concern for or support, well-being interest in the during care or of the mother pregnancy. her 79. For ease reading, here the statute without tracked changes:
concurring). Special Committee here submitted its recom- Council, mendations in bill form to the proposed which then legislation legislature. *33 48.415(6)(a) parental responsibil- Failure assume by proving that the
ity, shall be established which may persons parent or or who be the parent person the parental had a of the child have never substantial with the child. relationship
(b) subsection, relation- parental "substantial In this significant ship" acceptance means the and exercise education, daily supervision, pro- responsibility for the the evaluating care of the child. In whether tection and relationship with had a substantial person has factors, child, may such includ- the the court consider to, ing, person has ever but not limited whether care or expressed support, person concern for or interest child, has ne- well-being of the whether support glected provide for the or care or refused to whether, is or respect person who child and child, may person has ever be the father of the support, in the care or expressed concern for interest (empha- during pregnancy her well-being of the mother added). sis "a father omits the phrase The 1995 version child," he the father to believe
had reason of Wis. Stat. every version appeared which had 48.415(6)(a)2. text no Thus the 1995 since 1979. seeking termi- that the party longer explicitly provides assumed the father had never must prove nation though for the child even responsibility father of the he was the had reason to believe father child. of Wis. Stat. Furthermore, 1995 version 48.415(6)(a) language statutory eliminated the 1989 termination show seeking the party
requiring to establish substantial the father failed prior filing termi- the 1985 eliminated The 1995 statute also nation. seeking termi- language requiring party statutory *34 nation to show that the failed father to a establish prior adjudica- substantial to paternity. of Thus, tion unlike prior versions 48.415(6), the 1995 statute contains no lan- express about the guage timeframe in which the seeking party prove termination must that the father has never assumed parental responsibility. Despite significant changes in language Note the Joint Legislative Council's
Special Committee that drafted the to amendments 275) Wis. Stat. (printed 1995 Wis. Act that change states no made to was the prior statute except expand ground mothers, include mari- children, tal fathers whom paternity adju- was dicated prior filing to the of the termination petition. 48.415(6)(a) Note to printed with 1995 Act Wis. 275 states: law,
Under current the parental rights of the father child, is, a nonmarital a child who neither conceived nor born or parents while his her are inter- married, who has not been adopted parents or whose have not subsequently intermarried and for whom paternity adjudicated prior filing has not been to petition (1) may the TPR be terminated person if: persons or may who be the father of the child have been given notice about the PR petition but have failed to or appear jurisdiction otherwise submit of the court and have never had substantial rela- (2) tionship child; with the although paternity adjudicated, has been the father did not establish prior substantial relationship with the child filing petition although of the TPR the father had reason to believe he was father of the child and has not assumed parental responsibility for the child. This bill expands ground this involuntary TPR to (1) (2) fathers; include: mothers as well as marital (3) children as children; well as nonmarital fathers adjudicated filing prior paternity for whom (second added). emphasis of the TPR might that the lead one to believe 83. The Note concept of the not view the 1995 omission drafters did con- circuit court should 1979, that the included since he had reason to believe that whether the father sider substantively changing child, was the father agree *35 As discussed with this conclusion. the statute. We incorporate "neglect" previously, "refuse" and the words concept is, deliberateness, that of willfulness and the the father had to believe he was that the father reason support provide care or for did not but nevertheless might that the The Note also lead one to bеlieve child. require to have estab- to the father drafters intended relationship parental the child a lished substantial prior parental filing to terminate of the by drafting supported rights. is not This view drafting history. legislative at file on 1995 S.B. 501 The Legislative contains a Reference Bureau the Wisconsin attorneys Legislative at the from staff Memorandum Representative Huelsman, Joanne Council to Senator Ladwig, Shirley Krug, Representative and the Bonnie commenting Legislative on recom- Bureau Reference amendments. mended to
¶ amendment was 84. One recommended period during pertinent "[sjpecify which the time responsi- parental parent failed assume must have to example, year prior bility, time the for rights] petition [termination A was filed." appears next to this recommenda- "No" handwritten adopted. was not This amendment tion. the 1995 text inference from 85. The reasonable 48.415(6)(a) drafting is that memorandum this and legislature's the date of references both removal adjudication paternity filing and date of
termination petition removed the limitation on the proof of failure to assume responsibility any date on the preceding hearing grounds termination. Furthermore, the use of the words "never" "ever," as we explained previously, a circuit support considering court's all evidence as of the on the hearing termination. 87. Our of the word interpretation "never" 48.415(6)(a) Wis. Stat. is supported the same Memorandum from staff attorneys at the Legislative Council. A recommended amendment to "[s]pecify parent has 'not' had a substantial rather than 'never' had substantial pa- rental relationship." attorneys' staff comment this was, recommendation "This does to be appear substantive difference." A handwritten "No" appears next to this recommendation.38 48.415(6) legislature In 2005 the amended Wis. Stat. again, changing "never" to "not" omitting the word "ever." 293, § 2005 Act 21. Wisconsin Stat. *36 provides: now n whichshall 48.415(6)(a) parental responsibility, Failure to assume by proving parent person be persons established that the or or thе may parent who be the of the child have never not had a parental relationship substantial with the child. (b) subsection, parental relationship" In this "substantial means the acceptance significant responsibility daily and exercise of for the supervision, education, protection and care of the child. In evaluat- ing person parental whether the relationship has had a substantial child, may factors, with the including, the court consider such but to, person expressed not limited whether the has ever or concern for support, well-being child, interest in the care or of the whether the person neglected provide support has or refused to care for the whether, respect person may child with to a is or who be the child, person expressed father of the has ever concern for or support, well-being interest in the during care or of the mother her pregnancy. Legislative Special The Council Committee Rights Adoption Termination Law, Parental on explained proposed amendment, had which change "According as follows: the need for the by requiring testimony Special Committee, received showing person a has never had substantial a that the parent relationship if the with the child can be difficult any any or had contact with the ever interest showed 11). (Report at child" unper- forth, For set we are the reasons 48.415(6). by position State's on Stat.
suaded Wis. Proposed Legislative Report Council's The Wisconsin Adoption and Termi- Legislature Special Committee 2005) (Mar. 28, Rights Law states: nation of Parental Background, testimony Committee, requir-
According by Special received showing person ing has had a substantial a never parent relationship if ever with the child can difficult be any any child. interest or had contact with the showed Description ground providing that failure to
The bill draft modifies this responsibility proving parental that the is established assume relationship parent with the not had substantial has original). (emphasis in child 2004) (Sept. meeting minutes Special Committee's following: state the rights] ground involuntary
Regarding [termination of Kenney parental responsibility, [a member Mr. to assume of failure ground very Legislative Council] said that the the Joint parent requiring that the confusing the state to show and that the child is never had substantial does not believe frequently of the defense. He said he the focus *37 Legislature a to constitute contact with child intended minimal parental relationship. a substantial 48.415(6), § On the of basis the text Stat. Wis. purposes statutory Code, of the Children's evo- 48.415(6), § contrary lution of hold, we State's 48.415(6) proffered § interpretation, that under a parental responsibility father's efforts to assume for a biological child undertaken after he learns the exist- adjudication ence the child but before ground by must be considered circuit court in deter- mining ground failing paren- whether the assume 48.415(6) § relationship proven by tal under has been convincing clear and evidence. Bobby responses interroga-
¶ 90. G.'s to the State's Bobby tories should have alerted the circuit court that G. trying parental relationship was establish with Marquette after he had reason to believe that he was Marquette's Summary judgment inappropri- father. presented disputing ate because material facts were State's claim that never G. assumed responsibility Marquette. Although among that, admitted G. things, parental responsibility
other he failed to assume Marquette developed and had not a substantial Marquette, the circuit court should not automatically have concluded that Wis. Stat. convincing was satisfied clear and evidence. "Failure parental responsibility" pa- to assume and "substantial relationship" legally rental terms, are defined and the statutory may neatly align definitions not with the understanding phrases. common sense of these Accord- ingly, readily the circuit court should not have so ac- cepted Bobby G.'s admissions as concessions that the 48.415(6). proved requirements State had under 48.422(7)(c) pro- In addition, Wis. Stat. accepting alleged vides that before an admission of the *38 petition, court the a the circuit shall address in facts parties that the admission is made volun- and determine understanding tarily the nature the actions potential dispositions, petition alleged and in and the satisfactorily inquiries as "make such establish shall circuit a for the admission." The there is factual basis statutory obligations up to in the did not live these court present case. 48.415(6) any provides event, 93. In Wis. Stat.
a of factors that the circuit court or non-exclusive list determining biological jury may in whether consider responsibility. parent failed assume interrogatories requests did for admissions and State's expressly Even if the not address all of factors listed. sought all had of the enumerated State admissions admis- factors, the list of factors is not exclusive. Such convincing" may "clear and still not constitute sions statutory ground termination was evidence that convincing actually Sec- clear and evidence. satisfied 48.415(6) ground. fact-intensive tion a in as a matter of law The circuit court erred grant interpretation in its of Wis. Stat. taking summary judgment ing partial all the without phase. during grounds We must relevant evidence and was remedied whether the error was now determine remedied and whether the error was harmless. To decide Tykila Evelyn S., 2001 C.R. v. harmless, we turn 1, 768, and Waukesha 2d 629 N.W.2d 246 Wis. WI County 344, 607 H., 28, WI 233 Wis. 2d v. Steven taking in not a court erred 607, in which circuit N.W.2d phase grounds de and the error was evidence at the error. clared harmless Evelyn from the H. differ C.R. and Steven Evelyn parent defaulted; In had C.R. the
instant case. parent petition. in Steven H. the did not contest the In evidentiary both a those two cases sufficient basis court's determination of unfitness rendered the circuit failing grounds court's error to take evidence at phase In contrast, harmless. the instant case jury G. contested the demanded trial on case, for termination. In the instant *39 circuit court's error was not remedied and was not harmless for the forth reasons set below.
IV if 96. Even the circuit court had taken evidence post-termination petition and considered G.'s during grounds phase during disposi- efforts the or the phase, tional neither the circuit court nor this court could decide whether the State had satisfied its burden 48.415(6). under Wis. Stat. The facts to the extent they developed import dispute. were and their in are Accordingly, dispute, with material facts in the circuit granting partial court erred as a matter of law in summary judgment. Furthermore, G. had re- quested jury trial, which the circuit court denied dispute. because it no found material facts in Neither deprive Bobby the circuit nor court this court can ofG. granted statutorily jury justification. his trial without justification present jury No in exists case. A should any dispute disputed decide of facts inferences from facts, not circuit court or this court. Evelyn parent C.R., In in which the had although defaulted, we held that the circuit court erred fact-finding when it failed to take evidence at the hearing grounds to establish the termination of parental rights by convincing clear and evidence, the court harmless.39 The circuit remedied error was phase taking dispositional at the error evidence rights proceeding and then the termination reconsidering ground finding of the termination its presented. The facts on the of the new evidence basis Evelyn support the circuit C.R. to were sufficient findings for termination existed. court's upholding explained our decision circuit court We follows: terminating did not enter order
[T]he circuit court its Evelyn's taking Tykila's rights until after and, reaffirming testimony testimony, its based this finding of At the time court reaf- abandonment. prior finding firmed of abandonment its ordering Tykila's parental the termination of court support record facts to rights, the contained sufficient finding court's of abandonment.40 circuit Evelyn C.R., the circuit As was the case to the issue of the here received evidence relevant court ground dispositional stage for termination at the *40 proceedings. The court took testi- termination circuit develop Bobby regarding mony his efforts to from G. biological he learned his son after proceeding after termination son, is, his that the about Bobby begun. introduced into evidence had G.'s counsel Bobby had written of letters that G. several the in provides part: relevant Stat. Wisconsin granted judgment be reversed set aside or new trial shall or No any ground any proceeding of... error as action or on the opinion pleading procedure, of the court unless in the matter of made, application of is after an examination to which the appear proceeding, it that the error com- action or shall entire party seeking plained rights of has affected the substantial judgment, or a new trial. aside the to secure to reverse or set C.R., Evelyn 246 Wis. 2d inquiries caseworkers, which included about how to care for and father, contact his son. The foster Dr. Jeffrey, money testified about shoes and order that Bobby Marquette's he received from G. on behalf. The Bobby circuit also court heard that had made several G. (unbeknownst attempts to contact Denise whileW him) pregnant. she was presented 99. This evidence—which not at grounds phase proceeding of the termination —is relevant to whether G. failed to assume
responsibility Marquette. Evelyn C.R., for Unlike present parent however, in the case had not de- grounds phase faulted in the and the circuit did court not finding ground reconsider and reaffirm its about the for termination on the basis of this adduced evidence. Instead, the circuit court announced that great testimony [sic] "a deal that we took it's you today really particularly relates to isn't relevant." quite frankly, my continued, "And, circuit court listening your description programming you're going through yeah, you like, it sounds have had a rough years, things finally 10, 15 but it looks like are coming together you; starting necessary for to make the you your decisions have so that can life turn around. great. hope you. I And is it works out But you Marquette." is about this about ¶ 101. The circuit court did not find the new ground evidence relevant to the issue for termi- requires nation. Because the statute the circuit court to filing consider evidence of G.'s conduct after parental respon- of the termination to assume sibility Marquette, we conclude that the circuit granting рartial summary judgment court erred in and, Evelyn C.R., unlike in *41 that this error was not remedied dispositional phase. at the parent ¶ H.,41 In the did not contest 102. Steven jury petition and did not demand a trial. Steven H. court examined the entire record the termination proceedings parental rights a and "teased out" factual grounds finding support to the circuit court's basis although H., In circuit termination. Steven court for testimony support allega- failing in to erred take rights, "[a] petition to terminate tions allegations petition in the factual basis several testimony [could] of other out of the witnesses be teased [was] hearings exam- the entire record at other when ined."42 apply Even if were to the command of 103. we court basis from
the Steven H. to "tease out" factual jury testimony Bobby a when G. demanded the relevant only Bobby testimony trial, we can "tease out" from G.'s largely unexplored evidence, left that there was parties, Bobby trying assume G. fact-finding responsibility Marquette. proper At a hearing, could extent nature of those efforts be hearing Only proper fact-finding a examined. after about all of the relevant information G.'s which parental responsibility post-petition efforts assume jury presented determine whether exist could a directed verdict could court determine whether this should be entered. present denied a case, In the G. was 104.
jury guaranteed by Stat. statute. Wisconsin trial right jury protects trial when a parent for termination contests rights. provides part: in relevant It H., 28, County v. Steven 2000 WI 233 Wis. 2d Waukesha 607 N.W.2d 42 Id.,
Any party necessary proceeding who is or whose may rights by terminating parental be affected an order rights shall if granted jury upon request be a trial the request hearing is made before the end initial on petition. the only
¶ 105. This statute is not reference to the 48.424(2) § right jury to a trial. Wisconsin Stat. directs fact-finding hearing according that the be conducted § governs Wis. Stat. 48.31. Wisconsin Stat. fact-finding hearings in It, too, Children's Code. emphasizes protects right jury provid- trial, to a ing part: in relevant hearing child, shall be to the court unless the parent, guardian, legal custodian,
child's the unborn by litem, child guardian unborn child's ad or the expectant mother of the unborn child exercises the right jury by demanding to a jury any trial a at trial during time before or plea hearing.
¶ 106. Wisconsin Stat. 48.415 reiterates the role jury plays fact-finding hearing grounds in a parental rights, "[a]t stating termination of that fact-finding hearing jury may finding the court or a make that exist the termination of rights." concluding
¶ 107. The circuit court erred in warranting jury no material facts a trial were dis- pute. doing In so, circuit court denied G.'s repeated requests jury Disputed for a trial. facts remain by jury. which should been have decided a * * * * recognize ¶ 108. We our decision unfortu- nately period uncertainty. further extends the child's rights parent Nevertheless, the a both and a child protected. must be that in forth, For the reasons set we hold party seeking
determining termination of whether convincing rights proven clear and has biological failed to evidence that a father has assume 48.415(6), parental responsibility under Wis. Stat. biological father's ef- court must consider the circuit he is the father undertaken after he discovers that forts *43 adjudicates grounds court but before the circuit proceeding. in the circuit court the termination Thus proceeded case under an erroneous inter- the instant pretation Furthermore, the facts were of the statute. they fully developed, and the facts to the extent not dispute. developed import are in The were and their Bobby parties disputed G. assumed whether paternity responsibility of his after he learned but adjudication grounds for termination. before Accordingly, dispute, in the circuit court with facts summary granting partial in a matter of law erred as jury Bobby requested judgment. trial, Moreover, G. erroneously denied because it which the circuit court or inferences therefrom found no material facts dispute. nor this court can the circuit court Neither jury by deciding Bobby deprive the factual G. of a trial dispute. Accordingly, the decision of the we reverse summary judgment appeals re- and the
court of fact-finding court for a the cause to the circuit mand § hearing to deter- Stat. 48.424 in accordance Wis. termination of exist for mine whether necessary, rights Marquette and, if G.'s hearing dispositional in accordance with 48.427 parental rights be termi- should whether G.'s Marquette. interests of nated in the best appeals By court of decision of the the Court.—The is reversed. (<dissenting). WILCOX, E JON J. Could a
cocaine-pushing, woman-battering man, who does not child, even know about the cepted existence his have ac- "significant responsibility and exercised for the daily supervision, protection education, and care of the 48.415(6)(b) (2003-04). child"? Wis. Stat.
¶ 112. If that too of a call, close consider the only question, person same admitted he never responsibility daily supervision exercised for the responsibility child, never exercised for the education of paid support, child, never child and never met the Plus, child. he has been incarcerated for the vast majority of the child's life.
¶ 113. The circuit court answered no. Such a person parental responsibility pursu- has not assumed 48.415(6). majority ant to Wis. Stat. concludes "[T]he the circuit court erred. circuit court proceeded interpreta- instant case under an erroneous by failing biological tion of the statute" to "consider the discovered] father's efforts undertaken after he that he *44 adjudicate [d] father is the but before the circuit court proceeding." Majority of the termination op., ¶ 5. plain language
¶ 114. The of the Children's Code 48.415(6). § majority's interpretation contradicts Accordingly, respectfully I dissent.
r-H addressing analysis ¶ 115. Before of the ma- jority, necessary supplement presented it is the facts by it. Marquette August
¶ 116. was born on premature weighed only He was at least six weeks pounds respiratory prob- four and ten ounces. He had lems, bronchiolitis, disease, reactive including airway From the he hospital was with pneumonia. placed Dr. Jeffrey foster and Karen. parents, born, was Marquette Bobby When G. a woman. He was clueless facing charges battering of the child he had a about existence fathered as only result his one and face-to-face contact with Denise while not in state Lest one conclude custody. W. knowing G. had no the result of their way act, fathers, volitional the State contacts such as Bobby G., § if they register pursuant Wis. Stat. 48.025.1 48.27(3)(b)l. Wisconsin Stat. that a provides person §to 48.025 receive notice of registered pursuant any However, CHIPS case their child.2 involving potential registered Any thought G. never state. may that he have been ignorant potential Wisconsin Stat. states: Any person claiming to be the father of nonmarital child adopted parents subsequently is not or do not inter- who whose marry may, procedures under s. 767.60 accordance with under section, department this file with the a declaration of his interest affecting in matters child. such 48.27(3)(b)1. provides following: Stat. Wisconsin 2., Except provided as in subd. if the that was filed concerning a under situation relates to facts situation s. 48.13 or a involving expectant under s. 48.133 an mother who is a child and adopted if child nonmarital child is not or whose is a who intermarry parents subsequently provided do not under s. established, paternity and if has been the court shall 767.60 not 48.273, notify, following persons: under s. all of the person a. A who has filed a declaration of interest under s. 48.025. person alleged of the child or b. A to the court to be the father who may, informa- based on the statements of the mother other *45 court, presented be the father of the child. tion added.) (Emphasis by Bobby be offset the fact that G.
CHIPS case should rights already terminated to another had his time he had face-to-face contact with child Denise. life, For the first six months of his
Marquette's problems required treat- health extensive required every He treatment two to three hours ment. twenty-four day, parents pro- hours a which his foster vided. Marquette prob-
¶ 119. endured his health While Bobby jumping charges. Despite a no lems, G. faced bail apartment order, contact G. went to woman he had battered a few months earlier. When he police. leave, the woman contacted the refused police persuaded hour, him to leave. an G. Within apartment banging was back at the woman's By police visit, door. his second had discovered the order. existence of the no contact Marquette's Spring ¶ 120. In health condi- got tion worse. He suffered a series of recurrent ear developed problems eating infections. He ing and maintain- Marquette's his nutritional status. As a result of Jeffrey condition, Dr. and Karen needed to administer every twenty-four treatment hour and half to two hours day hydration maintain his hours nutrition. got Marquette's condition so bad he had to be days. hospitalized four Doctors found food was going lungs multiple allergies. into his and that he had they Marquette had done for since he from As arrived hospital days parents birth, after his his foster necessary provided treatment and coordinated his therapists. numerous visits to doctors Marquette needing ¶ 121. While treatment at day, Bobby facing charges 12 times a least G. was delivering He cocaine. was still oblivious to exist- *46 he had fathered. He received a maxi- ence of the child years imprisonment of of seven and six mum term in the The initial confinement Wisconsin months. years System two and months and the Prison was six supervision years. was five extended petition In filed a 122. Summer 2004 State rights Marquette's parents, parental of terminate the petition "Bobby." At the time the was Denise W. identity Marquette's filed, the of father was unknown or Denise misidentified Denise State. may suggested Marquette's she it be father twice before "Bobby." "Bobby" petition used on the because State genetic Bobby name. After Denise did not know G.'s last Marquette's testing, Bobby father. identified as G. was only In Fall a result of the State identity Marquette's seeking it father so could out finally parental Bobby rights, G. became terminate his Marquette aware that existed. phase During of the termina- proceedings, made a number admis-
tion G. respon- he assumed He admitted never sions. sibility Marquette. he never He admitted for established substantial responsibil-
Marquette. He never exercised admitted he daily ity supervision Marquette. He аdmitted for responsibility for the education he never exercised Marquette. the he was the He admitted he was unaware Marquette 16, 2004, the date until after June father of filed to terminate his the State rights Marquette. he was not He admitted that providing prenatal assisting for, in, involved paid Marquette. he child He admitted that never care of support Marquette. that he never met He admitted Marquette. he he unaware that He admitted that Marquette
was the father of until he was informed of indicating paternity. DNA test his results partial ¶ 125. The State filed a motion sum- mary judgment, asserting undisputed facts judgment entitled it to aas matter of law that G. parental responsibility pursuant failed assume 48.415(6). granted The circuit court the State's mo- *47 appeal. tion. filed a notice of G. The court of appeals accepted report the no-merit submitted Bobby G.'s counsel.
II grants partial ¶ 126. aWhen circuit court sum mary judgment, independently applying we review it methodology. County Dep't. the same Oneida Social of W., ¶ 8, Servs. v. Nicole 2007 WI 299 2d 637, Wis. appropriate grant summary 728 It N.W.2d 652. is judgment genuine when there no is issue of material moving party judgment fact and the is entitled to as a majority summary judg matter law. The Id. deems inappropriate ment in this case on its based flawed 48.415(6). § interpretation of multiple ¶ chap- 127. When statutes the same implementing chapter's purpose, ter relate courts interpretation. construe them to have a harmonized In Angel M., re Lace 2d 492, 512, Wis. 516 N.W.2d678 (1994).3 48.415(6) majority's interpretation § The 48.31(1) §§ contradicts and 48.424. Rather than look 48.415(6) § accompanying the statutes in the Children's proper fact-finding hearing, Code definition of majority provides a definition based on a contorted reading of the Children's Code.
3 This canon of construction has been referred as in pari pari materia. In "[o]n materia subject; relating means the same (7th 1999). to the Dictionary same matter." Black's Law ed. Interpretation A of the Children's A. Harmonized Code Provisions Reading §§ and 48.424 to- 48.31, 48.415, 128. 48.415(6) fact-finding hearing §
gether, scope of a petition alleged in the to terminate. to the facts limited subsequent filing of the Facts that arise deter- not the fact-finder's to terminate are relevant to grounds terminate the exist to mination of whether parental rights. parent's enumerating grounds Before for invol- rights,
untary 48.415 states termination hearing jury may fact-finding "[a]t the court or grounds finding exist for the termination of make a provides parental rights." Wisconsin Stat. involuntary termination is that one of the responsibility. the failure to assume specify language does not 48.415 fact-finding hearing. particulars required of the provisions *48 do. of the Children's Code However, other appears § § 48.415, like Sub- 48.424, Stat. Wisconsin Subchapter chapter VIII Code. VIII of the Children's rights. parental Section the of to termination relates 48.424(1) purpose "[t]he explicitly of the states that fact-finding hearing to determine whether is parental rights." of Wisconsin for the termination exist 48.424(2) hearing "fact-finding § provides that a Stat. according procedure specified to be conducted shall by s. 48.31." § a "fact- defines Stat. 131. Wisconsin hearing hearing" if
finding to determine as "a rights allegations petition to in ... a terminate convincing proved From the evidence." clear and are fact-finding scope plain language statute, of a 589 hearing alleged petition is limited to those facts in the parental rights. terminate Applying interpretation
¶ 132. the harmonized dispute the statutes to case, this no of material fact granted existed when the circuit court motion State's partial summary judgment. Bobby for own admis- G.'s requisite sions establish that he never had the substan- 48.415(6). § relationship required by tial The properly granted partial summary circuit court the State judgment. Majority's Interpretation
B. The Flawed language plain In the face of the majority Code, Children's holds that circuit courts parent's petition must consider a after efforts rights Majority op., terminate his or her has been filed. majority provides ¶ 5. The seven reasons its inter- pretation. Each reason enumerated lacks merit. "Neglect" Neglect" is Different than "Willful majority
¶ 134. The states "Wis. Stat. 48.415(6)(b) explicitly language uses that evidencеs the relevancy whether father knew or had reason to believe he was the father before the for termi rights Majority op., ¶ nation of was filed." 49. It "neglected" focuses on the use the words "refused," appear which both one of the three factors circuit 48.415(6)(b). may pursuant courts consider specifically person factor reads, "whether the has ne glected provide support care or refused 48.415(6)(b) added). (emphasis child."Wis. Stat. Based Cissell, on State v. 2d 205, Wis. N.W.2d (1985), majority "[t]he 'neglected' asserts word *49 synonymous negligence Majority op., not here." ¶ 49.
590 majority's ¶ reliance on Cissell is mis- The interpretation placed. of a child involved the Cissell "willfullyneglects."4 support that used the term statute "willfully neglects" argued that The defendant internally "willful" means inten- because inconsistent negligence. "neglect"means The Cissell court and tional "willfully disagreed of the term and held that the use 52.05(1) § neglects" render the did not Wis. Stat. vagueness. statute void 48.415(6) § Cissell, does Wis. Stat. 136. Unlike neglects." merely "willfully phrase It uses
not include the Dismissing "neglect." the distinction between the word "willfully neglects" phrase and uses the statute that "neglect" majority's interpretation. undermines Discretionary Factors 2. The Non-Exclusive majority's interpretation of The interpretation depends in non- of words found on its discretionary language plain factors. exclusive legislature's intent. that was not the statute indicates 48.415(6)(b) defines Stat. 138. Wisconsin relationship" provides a non- "substantial may consider. three the court list of factors exclusive Specifically, states, it 52.05(1) (1981-82) states, in pertinent Stat. Wisconsin following:
part, the provide imprisoned refuse to child under 18 liability or necessitous Any person that the for the provide support or maintenance. not more years (legitimate circumstances support person who deserts than has just years maintenance of shall be or or born out of cause or both. It is defense willfully neglects or fined not more than desert, his wedlock) in willfully neglect or her to criminal refuses to spouse destitute $500 or or added.) (Emphasis *50 evaluating
In the person whether has had a substantial may child, with the the court factоrs, including, to, consider such but not limited (1) person whether the expressed has ever concern for or interest in the support, well-being care or of the (2) child, person neglected whether the has or refused (3) provide or whether, care for the child support person respect may who is or be father of child, the person expressed has ever for concern or support, interest in the well-being care or of the mother during her pregnancy. 48.415(6)(b) (emphasis §
Wisconsin Stat. and number- added). ing majority recognizes The even that 48.415(6)(b) gives examples "non-exclusive of what a may evaluating person court consider in whether the parental relationship has had a substantial with the added). Majority op., (emphasis child." explaining ¶ 139. Nevertheless, in its reasons disregarding interpretation the State's harmonized majority the Children's Code, indicates that provides a list of "must," elements that or Majority op., to," "have ¶¶ be satisfied. In 49, 52. concluding "neglected" its discussion of "refused," majority "[a] states that circuit court therefore would have take into account whether the father knew had reason to Id., believe he was the father." added). (emphasis Why would circuit court "have "neglected" appear to" when the words and "refused" may one of the non-exclusive "a list factors court consider?" Legislature "Fact-Finding Hearing"
3. Defined introductory language pro- 140. The of 48.415 "[a]t fact-finding hearing jury vides that may the court or finding grounds make a that exist the termi- majority rights." that, Based nation language require "[t]his does not concludes that regarding limited to be what the evidence filing petition." transpired date of has Majority purportedly supports op., ¶ 53. This majority's must consider conclusion circuit courts *51 filing of the that arises from conduct after the evidence rights. petition to terminate majority's ¶ sense The assessment makes 141. 48.415(6) § only introductory language read of is if the "fact-finding legislature hear- in a The defined vacuum. 48.31(1) §§ ing" above, in and 48.424. As addressed 48.31(1) require regarding § that the evidence does filing grounds the date of of be limited to cоnduct before "allegations petition proof in a it of the the petition" because is fact-finding hearing is which held. a Authority Primary are 4. Statutes 48.31(1) § majority proclaims ¶ that 142. The position support the relevant "does not State's relating assumption of for evidence cut-off date responsibility is the date Majority op., Why? Because is filed." termination support except "[t]he a comment to the cites no State jury 180." Id. instruction Wis JI —Children 48.31(1) language supports plain of
¶ 143. The Only by rejecting position. of the enactments the State's majority's authority legislature primary does the as 48.415(6) §§ reach its erro- of assessment neous conclusion. Purpose of the Children's Code
5. The paramount goal the Children's Code The of majority quoted portion protect children. 48.01(a), many which is one of the subsections that purpose states the of the Code, Children's as follows: recognizing While paramount goal of this chapter protect children, is to children and unborn appropriate, preserve unity family, whenever by strengthening family through life assisting parents expectant children, and the mothers unborn when- appropriate, fulfilling ever responsibilities their parents expectant mothers. added.)
(Emphasis Family unity strengthening family goals secondary life are that are furthered appropriate." "whenever legislative purposes 145. With the stated, the
majority leaps "[t]o to the conclusion that effectuate the legislative purposes requires stated court, circuit determining 48.415(6), whether exist under biological parent to consider of a the efforts to assume parental responsibility filing after the termina- parental rights petition adjudication tion but before *52 Majority op., of the for termination." 62. legislature provided 146. The has evidence that majority capture the has failed to the essence of the purpose. Specifically, legislature Children's Code's the 48.31(1). 48.31(1) § § explicitly enacted Wisconsin Stat. scope fact-finding hearing alleged limits the a to facts petition in the to terminate. Were the stаte able to parental rights allegations terminate outside petition, parent would not have notice of the allegations against him or her. Participation Party Does Not Ensure that a Will
Prevail Regardless ¶ 147. of its aversion toward other scope Children's Code statutes that define the of fact- majority hearings, finding that claims 48.422(6)(a) 48.42(2)(b)2. support §§ conclu- and its indi- However, an examination statutes sion. definition of fact- contradicts the that neither cates legislature finding hearing provided 48.31(1). Additionally, requires § a circuit neither fact-finding at the certain evidence court consider hearing. § enumerates the
¶ 148. Wisconsin Stat. petition parties a must be summoned when Therefore, had to G. has been filed.5 termination to a was filed terminate be when summoned Marquette. rights Wisconsin Stat. 48.422(6)(a) provides 48.422 that at Wis. Stat. parties hearing that all court must ensure a circuit proceeding have been notified.6 termination 48.42(2)(b) following: provides Wisconsin Stat. (2) (2m), Except provided in sub. Summoned. Must Be Who petition to petitioner he served shall cause the summons following persons: upon the (b) adopted or child who not If the child is a nonmarital intermarry subsequently s. parents under 767.60 do not whose paternity has not been established: person of interest under s. who has filed declaration 1. A 48.025. alleged person persons the father of to the court be A or or may, upon of the mother based the statements the child who court, child presented the father be other information right person notice under s. 48.41 unless that has waived (2)(c). *53 relationship person with the has in a familial A who lived may child. the father of the child and who be 48.422(6)(a) following: provides the § Stat. Wisconsin 48.42(2)(b)2. 48.422(6)(a) §§ ¶ 149. Neither nor requires that a circuit court consider certain evidence fact-finding hearings. majority depends Yet, at on procedural proper scope these statutes to determine the fact-finding hearings. majority in does so legislature already face of the fact-finding hearings how has defined 48.31(1) §§
in and 48.424. Legislative Theory A7. majority presents
¶ 150. The the convoluted his- 48.415(6). § tory Originally, the substantial relationship adjudication." "рrior had to exist Wis. 48.415(6) (1979-80). § pa- Stat. Later, the substantial prior "filing rental petition had to exist of the rights." for termination of Stat. Wis. 48.415(6) (1989-90). § legislature In 1995, the consoli- 48.415(6). § dated, renumbered, and amended Wis. 48.415(6) (1995-96). § Any Stat. reference the tem- poral scope fact-finding hearing vanished. What does that mean? theory Legislative
¶ 151. One is Joint Special Committee, Council's which addressed statutes throughout repeti- Code, the Children's realized it was scope fact-finding hearing tive to define the of a 48.31(1) § repeat substantially similar definition 48.415(6). At the time, referred to "alle- gations parental rights" in a ... to terminate 48.415(6)(a)2. referenced a substantial adopted If child is a nonmarital child who not or whose parents subsequently intermarry do not under s. 767.60 and
paternity established, testimony not has been the court shall hear concerning paternity testimony, of the child. Based parties court shall determine whether all interested are who (2). not, known have been notified under s. 48.42 If the court shall adjourn hearing appropriate given. and order notice to be *54 for termi- filing of relationship "prior In to rid the an effort rights." of nation have legislature may redundancy, some statutes language. deleted the is not to course, the role courts 152. Of
¶ have been legislature may theorize about what by the laws as enacted Courts thinking. interpret manifests a clear statutory language When legislature. consult extrinsic sources unnecessary it is meaning, intent, as legislative such legislature's to ascertain the County, Dane ex Kalal v. Cir. Ct. State rel. history. 633, 271 Wis. 2d 681 N.W.2d 58, 46, 2004 WI ¶ legis- into the convoluted delving behind not rationale are "not at like this is that courts in a case history lative of the stat- clear words liberty disregard plain, Pratt, v. 317, ute." State 2d 153 N.W.2d 36 Wis. (1967).
I II have m a perma- should been 153. Marquette adopt wanted to parents now. His foster nent home the State's granted court properly him. The circuit failed Bobby G. summary judgment. motion partial instead Nevertheless, responsibility. to assume parental home, continues Marquette in a being permanent in limbo. be kept reasons, I forgoing respectfully 154. For the
dissent. Justices state that I am authorized DRAKE and PATIENCE T. PROSSER
DAVID this join opinion. ROGGENSACK