*1 Rights the Termination In re of Parental age person of 18: Brianca M. under W., Department County of Social Services, Oneida Petitioner-Respondent,
v. Respondent-Appellant-Petitioner. W., Nicole Court
Supreme argument No. 2005AP2656. Oral October Decided March
For the there was brief argument by corpo- Wiensch, oral Thomas D. assistant argument ration counsel and there was oral also guardian Stuber, A. ad litem. Jennifer ¶ 1. DRAKE ROGGENSACK, PATIENCE J. This unpublished ais appeals1 affirming review of an decision of the court of terminating
the circuit court's order2 (Nicole) parental rights daughter, Nicole Ws to her (Brianca). appeal Brianca M.W. focus Nicole's is granting partial summary that the circuit court erred in 48.415(10) judgment § under Wis. Stat. her because parental Rockey, her child, other were termi- judgment. nated in a default Nicole contends there demonstrating particular- was insufficient evidence ized rights for termination Nicole's regard Rockey, precludes which the use 48.415(10)(b) § that termination under and that a de- judgment grounds," fault not a on "termination she as 48.415(10)(b). § interprets Consequently, argues, Nicole summary judgment partial should not have been granted unlawfully and her were termi- nated. The appeal judge pursuant was decided one 752.31(2) (2003-04). subsequent All references to
Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. 2 The Kinney, Honorable Robert E. Circuit Court Judge County, Oneida presided. 48.415(10)(b)
¶ 2. that Wis. Stat. We conclude proof ground require of which 48.415 does *6 upon prior parental rights of for a termination relied grounds phrase, one more the the "on or of because 48.415(10)(b) § specified in section," in refers to this only prior proving an that the termination was invol- untary the also conclude that order termination. We rights Rockey, terminating parental to which Nicole's failing comply a for to with court arose from her default fact-finding hearing, appear personally at order proceeding collaterally attacked in this and is cannot be prove a there was evidence to sufficient rights involuntary to another termination Nicole's appeals. Accordingly, affirm court child. we
I. BACKGROUND daughter, Brianca, on Oc- 3. was born Nicole's shortly placed Brianca in foster care 21,2003. tober was through care after and has continued in foster birth County 11, 2005, the of trial.3 On March Oneida time (the Department Department) filed of Human Services rights parental petition to terminate Nicole's a alleged grounds petition for the The two Brianca. rights: Wis. Stat. of Nicole's termination 48.415(2), continuing protection § need of Brianca's 48.415(10), involuntary termination services and parental rights to another child within of Nicole's years. previous three partial summary Department
¶ The moved ground, relying judgment an on order the second on adjudged to be in The that Brianca was circuit court found 48.13(2), (3), or protection dr services under Wis. need (10) Protection Services" on a "Child in Need of based and/or (CHIPS) CHIPS case was dated December order County Case No. 03-JC-94. Oneida Juvenile Court identified as County February on filed Waukesha involuntarily 2003 that terminated Nicole's to her Rockey.4 son, The order states that Nicole was appear fact-finding default she at because failed hearing and that the termination of her Rockey involuntary, was but it does not state precise grounds involuntary for the termination. To fully, explain more 6 of section the standard order form County employed Waukesha Circuit Court a contains list all of the found in Wis. Stat. involuntary Opposite 48.415 for an termination. each ground to check, is box which when checked would ground indicate that basis for termination. However, the circuit checked none the boxes in petition section 6 of the form. The *7 that commenced the County parental rights pro- Waukesha termination of ceedings alleged Rockey, had Nicole abandoned § 48.415(1), Rockey continuing and that was in need of 48.415(2). § protection services, present County ¶ 5. In the Oneida termination proceedings, hearings two were held on the Department's summary partial judgment. motion for At hearing, argued the first Nicole that the order termi- nating rights Rockey her to was not sufficient because grounds," interprets it not was a "termination on § she as 48.415(10)(b), Stat. Wis. because the order was based proceedings. on her at the default termination The court reviewed the order, Waukesha which stated that specific Nicole was default did state but not grounds employed involuntary for The termination. hearing Depart- then continued the to allow the produce copy petition to ment of the Waukesha to 4 The Becker, Marianne E. Judge Honorable Circuit Court County, signed January Waukesha order on § grounds under 48.415 sufficient determine whether hearing, alleged. the court been At the second had petition in combination with the Wauke- reviewed the County and determined that Circuit Court order sha involuntary an the order was sufficient establish rights parental the criteria of within set termination 49.415(10)(b).5 out in argument repeated appealed
¶ 6. her Nicole and Rockey her of termination grounds" not on as she on her default was "based based 48.415(10). argued interprets Nicole also the circuit court had that the default order did show findings presented based evidence made fact on alleged county proved grounds had show the prior termination order was insufficient therefore, the way in that as well. rejected argu- appeals
¶ 7. The court of Nicole's court's affirmed the circuit decision. ments and appeals termi- court of reasoned that because involuntary, does not a fact that Nicole nation was necessarily accomplished contest, on one it was County See in Wis. Stat. 48.415. Oneida listed Dep't 2005AP2656, W., No. Soc. Servs. v. Nicole (Wis. February slip App. unpublished op., Ct. 2006). appeals an concluded that order The court also involuntary demonstrating an termination years, previous three another child within the § 48.415(10)(b), only proof required as *8 required Department of submit. The court was judgment appeals a default that even with reasoned comply with court Nicole failed rendered because adjudged Brianca court also found that The circuit 48.13(2), § Wis. Stat. or services under protection be need of (10) 5, 2003, December as (3), on a CHIPS order dated based 48.415(10)(a). required Wis. Stat. personally appear fact-finding hearing order to at the as terminating parental rights, Depart- basis proved ment must have for the termination convincing ¶ Id., clear and The evidence. 11. court "[t]o require type sug- stated, gested by of extensive review permitting
Nicole would be tantamount ¶ Id., collateral attack on the TPR." II. DISCUSSION A. Standard of Review grant partial summary judg-
¶
8. Wereview
of
independently, applying
methodology
ment
the same
as
Hoida,
the circuit court.
v. M&I
Bank,
.
Inc.
Midstate
¶69,
15,
283,
2006 WI
Summary judgment
2dWis.
is
when there is no
genuine
moving party
issue of material fact and the
judgment
entitled to
as a
Id.;
matter of law. Wis. Stat.
802.08(2).
partial summary
judg
9. To determine whether
granted
properly
interpret
ment was
in this case, we
48.415(10).
interpretation
Wis. Stat.
of a statute
question
independently,
is a
of
law
we also review
benefiting
analyses
appeals
"but
from the
of
Regents
and the circuit court."
v.
Morder Bd.
Sys.,
Univ. Wis.
19,
2005 WI
286 Wis. 2d
B. Termination of Parental among Terminations "are consequential judicial involving the most acts, as they authority destroy 'the do awesome of the State to *9 recognition parental legal permanently rela all " Kelley ¶ tionship.' H., 47, 271 21, v. 2004 WI Steven V. Evelyn (quoting v. 1, 856 C.R. 2d 678 N.W.2d Wis. 768). Tykila S., 110, 1, 2d 629 N.W.2d WI 246 Wis. 2001 may relationship parent-child parent's in the A interest liberty of fundamental interest level rise protected of the United the Fourteenth Amendment (citing Santosky ¶ 22 v. Id., States Constitution. (1982)).6 Kramer, a fundamen 455 U.S. 753 When liberty process of issue, is at the due clause tal interest requires proof of Fourteenth Amendment the parental convincing be clear and unfitness shown ¶ Id., 23. evidence. ch. Code,Wis. 11. The Wisconsin Children's safeguards. Evelyn C.R., 246
48, reflects constitutional provided Code, an As in the Children's 2d rights proceeding involuntary parental of termination disposition. steps grounds Id., involves two — step, grounds phase, ¶¶ 22-23. The first or unfitness hearing fact-finding "to determine whether includes rights." grounds parental Id., the termination of exist for 48.424). (quoting Wis. Stat. grounds out Stat. 48.415 sets Wisconsin involuntary rights, parental in- of an termination
for upon prior cluding grounds here, a involun- relied tary child to another termination 48.415(10).7 years. At the three within in the Fourteenth Amendment The Due Process Clause any State "nor shall United States Constitution states: due life, liberty, or without any property, deprive person process law." include involuntary termination The other protection abandonment, continuing need relinquishment, fact-finding hearing, prove "[t]he petitioner must *10 allegations grounds [supporting by termination] for convincing Evelyn C.R., clear and evidence." 246 48.31(1). § legis- ¶1, 22; Wis. 2d Stat. the Wis. While objective promote lative the Children's Code is to parent's rights best interests of child,8 are a grounds during phase central focus court's of a parental rights proceeding. termination of Id. grounds ¶ If found, are the court must find parent V., ¶ unfit. 1, Steven 271 Wis. 2d 25. The proceeding dispositional step two, then moves to phase. Evelyn C.R., ¶ V., 246 1, 23; Wis. 2d Steven 271 (citing Sheboygan County ¶1, Wis. 2d 26 DHHS v. A.B., ¶ 95, Julie 2002 28, 170, WI 255 Wis. 2d 648 402). dispositional phase, N.W.2d At the the court determines whether the best interests of child are by parent's rights. Evelyn served the termination of the ¶ C.R., V., 1, 23; ¶ 246 2d 1, Wis. Steven 271 Wis. 2d 27 48.426(2)). § (citing Wis. Stat. While central focus of proceeding the court is now on the best interests of the parent's rights ignored. parent child, the are A has right present evidence and to be heard at the dispositional phase Evelyn C.R., too. Wis. 2d 48.427(1)-(1m)). § (citing ¶ 23 Wis. Stat.
services, continuing disability, parental continuing denial of periods physical visitation, abuse, placement or child failure responsibility, to assume parenthood, incestuous ho- micide parent, or solicitation to commit homicide of parenthood assault, as result sexual felony commission of a serious 48.415(l)-(9m). against person's § one of the children. Wis. Stat. § construing Wisconsin Stat. 48.01 "[i]n states: this chapter, always the best interests of the child... shall be of paramount consideration." summary judgment that 14. We have concluded phase employed grounds
may in the of a termination be proceeding genuine is no when there finding dispute preclude one or more that would factual convincing statutory grounds clear and evi (citing ¶¶ V., 2d 28-44 Wis. dence. Steven 802.08(2)-(3)). nothing explained in the We Stat. judgment prohibits summary grounds in the statutes procedure phase fol and that 802.08 sets the be explained "[s]ome Id., 33. We further lowed. statutory expressly prov unfitness . . . are documentary evidence, such as able official judgments Id., 37. Wisconsin orders or conviction." 48.415(10) we as is one of the subsections listed *11 explained: by provable ¶¶ Id., order. 37-38. We summary judgment in the availability partial of the entire grounds phase proceeding of a TPR where undisputed of the statute is an unfitness under proof is legislature's purpose furthers the and court record general provisions rule that the of consistent with to and procedure apply code of all civil actions civil proceedings. ¶
Id., 39. partial ¶ case, 15. In this we address whether summary judgment properly granted under Wis. 48.415(10) § the order that terminated when Rockey did state Nicole's § ground upon explicit which the circuit court 48.415 involuntary based termination was relied and the failing comply court order to with a on her default for fact-finding hearing personally appear of at the grounds phase of the termination of begin proceeding. questions mind, we these With 48.415(10)(b). § determining meaning of Statutory Interpretation C. 48.415(10) interpret
¶ 16.
Wis. Stat.
We
de
required
proof
satisfy
require
termine
what
48.415(10)(b).
Statutory interpretation
ments of
be
gins
language
meaning
with the
If
statute.
plain,
ordinarily stop
the
inquiry
words
a statute is
we
our
apply
legislature.
the words chosen
County,
State ex rel. Kalal v. Circuit Court
Dane
¶ 45,
633,
WI 58,
271 Wis. 2d
(a) the That child subject who the of the petition adjudged has been in protection to be need of or (3) (10). 48.13(2), s. services under or (b) That, years prior within 3 date to the the court adjudged child of subject petition who is to protection in specified par. be need of or services as in (a), parental termination a court has ordered the rights person to another child of the whose respect with sought be terminated on one or rights are to parental grounds in specified this section. more of ambigu- that the statute is not 18. We conclude (1) language requires plain its that: ous and that subject petition has been is the child who adjudged protection or services under to be in need of (2) (3) (10); 48.13(2), § within the Stat. adjudication prior years a court to that has three parent's rights in to another child an terminated involuntary proceeding. termination come to We this 48.415(10)(b), §of conclusion because the words second grounds specified in section," more this "on one or plainly statute, in the whole when read the context of involuntary grounds for an termi- refer listed to the § rights significant 48.415. This is nation of under rights involuntary only termination of it is an because 48.415(10). § satisfy Stated other- that is sufficient voluntarily given up rights her wise, Rockey, had if Nicole rights terminating her the order 48.415(10) § satisfy be- him be would insufficient have "on one or order would not been based cause that specified grounds i.e., section," in in more this § 48.415. 48.415(10)(b) does re- 19. Wisconsin grounds
quire proof set out of the available which involuntary for the termina- was the basis 48.415 grounds phrase, one or more of the tion "on because only general specified is meant as section," this the termination directive involuntary. assures sufficiency regard of a order In to the 48.415(10), there is under that can be used as *13 specify ground to no need for the order which was § any employed, as set out in 48.415 is satisfy requirement paragraph sufficient to (10)(b).9 there Furthermore, is no reason that legislature require proof ground which would under § by 48.415 was used in the termination because § enacting multiple grounds 48.415 with for an invol untary rights, legislature termination of established any proving single ground listed therein clear convincing and evidence sufficient for a court to parent V., conclude that a was unfit. Steven Wis. 2d ¶1, 25. Although legislative
¶ 20. we do not consult his- 48.415(10) tory interpret to Wis. Stat. because we may unambiguous, have concluded that it is we do so to Kalal, confirm our decision. 271 Wis. 2d 51. In joint legislative case, this we note that the council note 48.415(10) analyzing interpre- is consistent with our tation of the statute. See 1995 Act analysis states: ground involuntary
Note: Adds a for TPR based involuntary on the TPR another child when the following conditions are met: subject The child who is the of the petition has adjudicated been CHIPS 48.13(2), stats., under s. (sexual abuse) (abandonment), (3), stats., physical or or (10), stats., (parent, guardian legal custodian ne- glects, or is refuses unable reasons other than may Of course the issue be if different the termination of parental rights Rockey being Nicole's appealed. were In that case, reviewing court could be asked ascertain whether proof sufficient was admitted support circuit court to ground court's determination that a specific proved by clear However, convincing evidence. an appeal termination Rockey Nicole's is not before us. food, necessary care, clothing, medi- poverty provide *14 endanger seriously care so as to cal or dental or shelter child); physical the health of the child years prior the to the date the Within CHIPS, juvenile court ordered adjudicated a has involuntary person's another the children. TPR of of added). joint (emphasis legislative council note Id. supports interpretation explaining our that the statute language requiring prior to be termination on the grounds specified only § it
in 48.415 means that must involuntary. proved prior termination was be that contentions, 21. As one of her Nicole asserts rights Rockey parental her that the termination of 48.415(10)(b) § satisfy may not Stat. be used to Wis. County failed to Circuit Court because the Waukesha any the in section 6 on the form order the check of boxes argument persuasive used. is be- court Nicole's explained clause in above, as have last cause, we 48.415(10)(b) requires only that the termination require involuntary and does not an termination be grounds proof for that termi- of were the bases which that her nation. concedes Nicole involuntarily Rockey terminated. were an Furthermore, once a court has entered terminating rights, parent's is unless it over- order a presumed proceeding, it valid. See in a further turned Co., 2d 1, 3, Am. Ins. 8 Wis. N.W.2d Zrimsek v. Auto. (1959). "judgment explained Zrimsek, a In we that jurisdiction parties having rendered subject matter, reversed or annulled and the unless open proper proceeding, or is not contradiction some validity, verity, impeachment, respect or bind- of its any ing by parties privies, in collateral action effect, or proceeding, except... procurement." for fraud in its 401). (quoting Judgments, Id., 49 C.J.S. We so ex- plained examining finality in the context judgment against on a default bail bond action principal. presump- Id., at 3-4. We concluded validity judgments binding tion of is no less if the judgment was on a based default than if it were based on a full trial.10 Id. presumption
¶ 23. Based on Wisconsin's of valid- ity judgments, we must assume the Waukesha County convincing Circuit Court found clear and evidence at least one of listed in proved 48.415 been had before it terminated Rockey. Nicole's is so This because *15 allege Nicole not does that the Waukesha Circuit Court jurisdiction, appealed was without that order or was procured by set otherwise aside that it was fraud. Furthermore, that an order a does have ground written statement of which was basis for an involuntary possible termination, instead all but lists grounds, nullifying is no of basis effect the order. We assume Therefore, must the order is valid. is it logical missing also to assume the check mark on the employed by County form standard the Waukesha Cir- cuit is a Court but clerical or scrivener's error. See Vleck, v. Bostwick Van 106 82 Wis. N.W. 302 (1900) (stating clerical mistake "a is mere omis- preserve correctly respects, sion record, to in all actual court, decision of the which in itself was free
10 County The Waukesha Court Circuit had the to authority render default judgment to response Nicole's to failure comply appear its order that fact-finding with she at hearing. v. 492, 497, See Gaertner 131 Corp., Wis. 2d (Ct. 1986). N.W.2d 59 App. Nicole does not contest this author ity. "something judgment an in a error," while error
from erroneously pass upon or omitted to that the trial erroneously"). passed upon considered County it Circuit Court said Oneida probably an inadvert- "was also assumed omission oversight filling in the out of the form. standard ent appeared filled out of the form to have been The rest validity do not Mere clerical errors affect fine ...." e.g., Miller, 136 See, ex rel. Gottschalk v. of orders. State (1908) (affirming an order 344, 348, 117 N.W. Eagle lay supervisors a new out the town highway part of an old one and discontinue because highway description alleged "a in the of the error validity not affect the clerical error and does mere order").
D. Attack Collateral contends the Waukesha 26. Nicole also
County her order that terminated Rockey after she it was entered cannot be used because failing comply a court with in default for was found hearing. fact-finding personally appear at the order to evidence take sufficient However, a circuit court must proof convincing prove standard the clear and *16 grounds it must exist, for and the termination that parent finding in the is found a even when make such failing comply that she to a court order for with default Evelyn ¶ personally appear. 26.11 C.R., 1, 246 2d Wis. 11 1, S., 110, 2d 2001 WI 246 Wis. Evelyn Tykila C.R. v. In at the 768, personally appear not parent the did 629 N.W.2d hearing court found that fact-finding and the circuit 655 Nevertheless, Nicole us to look under requests order County to the Waukesha to assure proceedings that done. this was 27. We agree appeals with court of a
require more evidence than prior involuntary termina- 48.415(10) tion order to satisfy would be a tantamount collateral attack on the permitting prior order. A collateral on "an judgment attack is attempt evade, avoid, or the force and of a deny effect judgment in an indirect manner not and in a direct proceeding by law and instituted for prescribed purpose Zrimsek, 8 Wis. 2d vacating, reviewing, annulling it." 1, 3 5 (citing Callaghan's, Bryant, Wisconsin Pleading (3d 37.97).12 ed.), 373, §
and Practice p. In general, judgment "a on binding parties may and attacked in a be collateral action Madison, State v. unless it fraud." procured by 120 (Ct. 150, 154, Wis. 2d 353 835 App. 1984); N.W.2d cf. existed to allegations terminate the on based petition parent Id., had abandoned the child. 9.¶ erroneously We the court concluded had exercised its discretion reasoned, "by against default entering judgment Tykila on the parent] [the issue of abandonment taking without first evidence such a support finding, sufficient circuit court comply failed to statutory with the constitutional and require- Id., parental rights." However, ments termination of we found a factual basis in the record to support the termina- tion and concluded the circuit court's procedural error was Id., harmless. 32-35. ¶¶ 12 Hahn, 28, 17, See State v. WI 238 ¶¶ Wis. 2d (allowing collaterally an N.W.2d offender to attack a prior in an conviction enhanced sentence proceeding "only challenge when to the conviction on is based the denial right lawyer"). offender's constitutional to a *17 Campbell, ¶¶ 2d 99, 52-55, 294 Wis. 2006 WI State v. recognized courts have 100, 718 N.W.2d Wisconsin allowing challenges general collateral on disfavor of judg "they disrupt finality of the basis that thereby in the undermine confidence and tend to ments inevitably delay procedures integrity and our and justice." orderly impair State v. administration Gudgeon, App 189, 720 143, 6, 295 2d 2006 WI Wis. (citing 485, States, v. United 511 U.S. N.W.2d Custis (fol (1994) ¶¶ Hahn, 2d 26-28 889, and 238 Wis. omitted). Custis)) (internal quotations lowing The fi rights nality judgment parental of a in a termination of legisla proceeding because, critical as the is even more impermanence recognized, "instability fam ture ily contrary relationships chil are to the welfare County H., v. Steven 2000 WI dren." Waukesha 344, 607 2d N.W.2d ter- that her on the 29. Nicole contends attack rights part from her that arose in mination of order comply failed with a rendered she default because personally appear not a attack collateral court order validity it as a She characterizes on the the order. by Department proof it has not because failure of hearing fact-finding actually occurred at the shown what parental County her Court when Circuit Waukesha rights Rockey example, For in oral terminated. were possible argument her the issue of a counsel raised right prior proceeding. in the to counsel denial of the attacking was asked whether Nicole was When counsel County her termination Waukesha represented Rockey not been because she had responded proceeding, that it was in that counsel counsel represented possible had been to tell whether she given counsel, the record before court. *18 collaterally
¶ have allowed We defendants prior very attack a criminal in the conviction limited deprivation right circumstance of the of to counsel. may collaterally Hahn, In we held that a defendant pro- attack a spective conviction that serves to enhance a prima
sentence where the defendant makes a
showing
right
facie
that his or her constitutional
by
provided
counsel
the Sixth Amendment to the United
prior proceed-
States
in that
Constitution
violated
ing.13 Hahn,
¶¶
889,
17,
238 Wis. 2d
28. We subse-
quently
we
noted that
were "bound as a
of
matter
Supreme
federal constitutional
that "the
law" and
Court's concerns about ease of administration and
finality
weighed
judgments
bright-line
in favor
against
excep-
rule
attacks,
collateral
with
limited
right-to-counsel
tion of
Peters,
State v.
2001
violations."
(citing
¶74,WI
15,
470,
244 Wis. 2d
to civil
parental rights proceedings
accorded Wis. Stat.
48.23(2).14
necessity
legislature emphasized the
legislative
"[t]he
that,
edict is
in termi
of counsel and
represented
*19
'any parent...
proceedings,
shall be
nation
County Dep't
by
v. Monroe
Human
counsel.'" M.W.
(1984).
432, 437,
2d
342
410
We
Servs., 116 Wis.
N.W.2d
statutory right
recently affirmed
to
have
that
integ
necessary
preserve the "fairness and
is
counsel
Shirley
rity"
proceedings.
E.,
v.
State
of termination
1,
623. We
129,
63, 298 Wis. 2d
724 N.W.2d
2006 WI
statutory right
explained
have further
that
v.
of counsel. A.S.
includes effective assistance
counsel
(1992). In
State,
52
995, 1004,
168
2d
485 N.W.2d
examining
in an involun
of counsel
whether assistance
rights proceeding
tary
effective, we
termination of
(citing
applied
Id.,
test.
at 1005
have
the Strickland
(1984)).
Washington,
In
First, the defendant must per- show that counsel's requires showing formance was deficient. This counsel made so errors serious counsel was not functioning guaranteed as the 'counsel' the defendant [SJixth [AJmendment.
Second, the defendant must show that the deficient performance prejudiced requires the defense. This showing that errors counsel's were so serious as to trial, deprive the defendant of a fair a trial whose result is reliable.
Id. State v. Harvey, (citing 353, 375, 139 Wis. 2d (1987) added). N.W.2d 235 (emphasis Therefore, we have Sixth Amendment in applied the context concepts of termination of parental rights proceedings, even are though proceedings civil nature and the Sixth Amendment does not to civil apply proceedings. a claim When of denial of the right made, counsel is the claimant has the burden to make facie of a violation prima showing right Ernst, counsel. State v. WI 107, 2dWis. 300, 699 92. In N.W.2d that showing: require point
[W]e the defendant to facts that demonstrate that he or she did not know or understand the information which provided should have been *20 and, thus, the previous proceeding did knowingly, not intelligently, voluntarily and right waive his or her to Any counsel. claim of a violation on a collateral attack that does not detail such facts will fail.
Id., there was not a facie (concluding prima showing because the defendant did not mention specific facts indicated his waiver of counsel knowing, was not (citation omitted). intelligent, voluntary) 660 ¶ However, we need not determine whether the County rights may prior termination of order Waukesha right collaterally due to a violation of the to be attacked prima showing Nicole made no facie counsel because right in denied the of counsel the termina that she was regarding Rockey. rights proceeding Hahn, 238 tion of ¶ ¶¶ Ernst, 889, 17, 28; 300, 283 Wis. 2d Wis. 2d argue Furthermore, does not that she was Nicole actually prior represented counsel in the termination argues proceedings; simply that the record does not she represented However, was counsel. demonstrate she proof Department in not have the burden of does Ernst, attack; 300, collateral Nicole does. See 283 Wis. 2d Hampton, (citing ¶ 46, v. 274 State WI 14). 2d She has not met it here. N.W.2d
III. CONCLUSION 48.415(10)(b) 36. We conclude Wis. Stat. ground require proof does not of which 48.415 rights upon prior relied for a termination phrase, "on one or more of the because 48.415(10)(b) specified section," in refers to this only prior proving an that the termination was involun- tary that the order termi- termination. We also conclude Rockey, nating arose which Nicole's failing comply with a court order from her default fact-finding hearing, personally appear cannot at the collaterally proceeding and is attacked this suffi- be prove involun- cient evidence to that there was tary another child. termination of Nicole's appeals. Accordingly, affirm the court of we appeals By the Court.—The decision is affirmed. (<dissen- ABRAHAMSON, C.J. 37. SHIRLEY S.
ting). Department motion for of Social Services' *21 summary judgment terminating pa-
partial Nicole W.'s rights copy rental to Brianca was based on a certified County terminating a Circuit Court order Waukesha rights Rockey. child, Nicole W.'s to another The presented issue in the instant case is whether the Department partial to a entitled, law, was as matter of summary judgment on the basis of the Waukesha order. 48.415(10) clearly,
¶ 38. The text of explicitly, plainly requires "prior and that the involun- tary parental rights termination of . .. shall be estab- by proving. lished . . that a court has ordered the parental rights [to child] termination of the other . . . grounds specified in on one or more of the this section."1 terminating Waukesha order Nicole W.'s parental rights Rockey, copy child, to her other satisfy requirements attached, which is does not 48.415(10). Everyone agrees, including, Wis. Stat. I sure, reader, am the order fails state the grounds upon which the termination was ordered.2 48.415(10) provides Section as follows: involuntary parental rights child, Prior termination of to another by proving following:
which shall be established all of the (a) subject petition That the child who is the of the has been adjudged 48.13(2), protection to be in need of or under services s. (3) (10). or (b) That, years prior adjudged within 3 to the date the court subject petition protection child who is the to be in need of specified (a), par. services as a court has ordered the parental rights respect termination with to another child of the person sought whose are to be terminated on one grounds specified more of the this section. 2 Observe that the order provides several boxes to be marked to indicate on which the termination of paren tal ordered. marked no None was other reference statutory ground appears. to the for termination majority opinion plugs 40. The the omission in *22 relating Rockey by rewriting the Waukesha order 48.415(10). § majority opinion simply Wis. Stat. The reads, statutory the words "ordered the termination of parental rights grounds ... on one or more of the specified in this section" out of the statute book. majority
¶ opinion interprets 41. The this statu- tory language merely requiring prior as that the termi- involuntary ground nation be an termination; the According termination need not be stated. to the ma- 48.415(10)(b) jority opinion, § "the last clause re- quires only prior that the termination be an involun- tary require proof termination and does not of which grounds Majority were the bases for that termination." op., ¶ 21; ¶¶ 2, see also 36.3 By rewriting 48.415(10)(b),
¶ § 42. Wis. Stat. the majority opinion can declare the Waukesha order suffi- though specify any ground cient even the order does not terminating for Nicole W's to the child. disagree majority opinion. I legislature with the If the proof prior involuntary had concluded that of a termi- parental rights nation of was all that was needed it 48.415(10). simply could have so stated It did not.
¶ 43. I would not rewrite the text of the I statute. apply legislature, would the statute as written the giving meaning clearly to all of the words. The statute prior involuntary states that a termination of by proving to another child shall be established 3 Other paragraphs majority in the opinion repeat that it is only necessary prior "involuntary," termination be majority op., and that "there [Wauke- is no need for the sha] order to specify ground which employed, any as grounds set out in satisfy 48.415 is sufficient to require (10)(b)." ment of paragraph Majority op., ground on a ordered termination
specified in Wis. Stat. 48.415. The Waukesha order satisfy Department upon did not this relied requirement, Department's motion therefore the summary judgment partial must a matter law. fail as accept majority ¶ 44. Even if I were to opinion's reading statute, Waukesha order satisfy order is based does the statute. Waukesha any statutory grounds, default, I not on as on explain below. Recognizing the defect in the Waukesha or- attempted repair
der, the circuit court the Waukesha by importing order the order into Waukesha petition in the for termination for termination stated *23 disagree in I the circuit court's filed Waukesha. with approach. summary hearing
¶ At on the for 46. the motion judgment present case, asserted, in and the Nicole W. agreed, circuit that the order the court Waukesha support for and motion sum- defective could the mary judgment matter of law the order did as a because statutory ground for not state a termination. adjourned Accordingly, the court the circuit hearing summary judgment on the and motion corporation permitted "the counsel to obtain rest of suggested . file . . ." The circuit court various County corporation documents the counsel Waukesha might produce deficiency, as to cure the such transcript petition for termination and a of the Wauke- County hearings, proposed that the sha court even Department have the Waukesha court amend order it.4 to correct corporation The circuit court stated counsel and, out petition alleged perhaps,
should "find what the obtain hearing, corpora- When, at the motion copy tion counsel offered an uncertified of the termina- petition County, tion filed Waukesha the circuit court accept "[W]e refused to it. The circuit instructed, get copy should compare a certified and we should also give it County with the order and we should Waukesha opportunity by, you to amend the order know, having one of the boxes checked here."5 hearing partial 49. At the next on the motion for summary judgment, corporation produced counsel only copy petition a certified for termination of Rockey County, filed Waukesha might expected, statutory ground which, as be stated a peti- for termination. The circuit court found that the a transcript of the proceedings at which the default order was Presumably entered. that was transcribed because I think it would have been in the ordinary of things.. course .."
The circuit explained court further that it could not "deter- mine from the current order grounds really what the were. What defaulting was Nicole W to? What did petition allege? really That's what we have to have.... really We don't know who the scrivener of the order was...." suggested circuit court may that "it well be that we really should have an amended order out of Waukesha County.... preferable [I]t would be to let County Waukesha correct apparent its inadvertent error."
The circuit court concluded its corpora- instructions to the *24 tion counsel saying that "what we have to do here is come back here and find out at that point whether the basis that was stated —or bases stated were those in mentioned the statute. So we can't decide it today and we should have that information supplied."
5 The circuit court referring was to the boxes on the order terminating parental rights which could be marked to indicate grounds on which statutory granted. the order was None of the boxes was checked here.
665 good enough plug in to the hole the Waukesha tion was proof disagree I no order. the circuit court. There is with alleged ground petition in was for termination the the proven. ever Although provides order the circuit form opportunity was tried
court an to state that matter jury circuit and that one or more to a or to the court statutory grounds found, the termination was merely completed order in the instant case Waukesha appear and in default. states that Nicole W.failed to was hearing spaces a held The in which to indicate that was fact-finding remain on the and occurred blank form order. The on face violates Waukesha order its only
chapter
by relying
and
of the statutes
on default
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fact-finding.
Before
a
default
parental rights case,
court
a termination of
a circuit
fact-finding hearing
hold
and find
clear
must
a
convincing
upon
presented, that
evidence,
the evidence
defaulting
parent's
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proven,
parent fails
to the
have been
even when a
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appear
appear
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at all and
or fails
at
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Evelyn
proceeding a court
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order.
C.R.
Tykila
¶¶
S.,
ing Rockey upon Department which do not relies fact-finding held establish circuit hearing findings. only required rea- made terminating reading sonable order Waukesha rights Rockey order Nicole was that the W.'s appear no was fact-finding on failure to and that entered Nicole W's hearing findings held and no were Although made. fact-finding this court has been clear that
hearing parent if must occur even does *25 appear, apparently it is not uncommon for circuit skip evidentiary hearing courts to fact-finding an and parent appear when a fails to for it. See Torrance P. v. Shirley E., 2006 129,WI 298 1, Wis. 2d 724 623; N.W.2d Evelyn Tykila S., C.R. v. WI 2dWis. Accordingly, N.W.2d768. I conclude that the circuit court relying petition parental erred on the to terminate rights Rockey to fill the void in the Waukesha order. part
¶ 53. The dispute sad of the case is that this simply could swiftly, have been thereby resolved bringing permanency corpora- to Brianca's life. All the 48.415(10) satisfy tion counsel had to do to Wis. Stat. produce in the instant case was to in the court, circuit suggested, transcript as the circuit court of the County proceedings Waukesha copy or a corrected the Waukesha order. Either of these methods would clearly way have demonstrated one or the other parental whether rights termination of was on statutory grounds. partial summary judgment 54. Because was er- I grant-
roneous, would reverse the circuit court order ing partial summary judgment and remand the matter give Department opportu- circuit court to an nity prove County that the Waukesha Circuit Court [to "ordered the termination of Nicole Rockey] W.'s child on ... one or more of the 48.415(10)]." specified [in Depart- Wis. Stat. If the proof, ment cannot offer such then the circuit court requests, must, as Nicole W.'sbrief hold a trial on Nicole parent respect W.'s fitness as with to Brianca. any rewriting In event, the court's majority opinion.
statute should have ended the majority opinion, disposes statute, as rewritten fully majority opinion of the case. Nevertheless, decide It out to discuss and other issues. tries
reaches *26 declaring, any opinion, basis, its without an bolster 24), relying (majority op., ¶ on in the order and error validity judicial proceeding presumption of a of the 22-23). just (majority op., ¶¶ me that it is as It seems to likely an correct and reflected error order was proceedings in error as that order was and at the proceedings correct. majority opinion ¶ 56. The then wanders even broadly attacks on a more and addresses collateral terminating rights (majority judgment op., 27-28), although ¶¶ has no such collateral attack been present up case, in the and with an made winds unnecessary of Nicole's Sixth Amendment discussion (majority right op., to counsel in the Waukesha court 30-35). ¶¶ agreed
¶ I mandate, Even if I with the would join parts majority opinion not these because they necessary case; I do are not to a decision this not they actually to them are not before write now because A and court. should not reach out decide court deciding often matters not before it. Less is more when "If an before the court. issue—no matter how cases interesting squarely presented by important —is it. case, the court not reach out to decide The should get particularly if will another court chance— express any opinion the issue does not on it."6 *27 Revisited, Some Neutral Principles Borden, Hon. David M. (Fall 1994). 27 Conn. L. Rev. notes but Chicago Lawyers, Evaluation the United See Council Circuit, Appeals 43 DePaul Court Seventh L. States 1994) (footnotes omitted). 673, 685-86 (Spring Rev. Chicago Lawyers provide Council of conducted the evaluation judges they perceived by Chicago are information on how lawyers litigants provide practic and to information to bar ing in the Seventh Circuit. Borden, 58. David M. Associate Justice of the Supreme following Connecticut Court, offered the ad- appellate making: "[W]eought vice on decision to decide only fairly presents. way, what the case Put another ordinarily ought we not reach out to decide is not what reasonably necessary though decision, to the even we say regard are convinced that what we have to correct."7 forth, 59. For the reasons set I dissent. I am authorized to state that Justices ANN join WALSH BRADLEY and B. BUTLER, JR., LOUIS opinion. this