B. W. v. S. H. (In re Termination of Parental Rights to K. E.)

• Decision Date: 29 June 2021
• Docket Number: Appeal No. 2021AP43,Appeal No. 2021AP44
• Parties: IN RE THE TERMINATION OF PARENTAL RIGHTS TO K. E., A PERSON UNDER THE AGE OF 18: B. W., PETITIONER-RESPONDENT, v. S. H., RESPONDENT-APPELLANT. IN RE THE TERMINATION OF PARENTAL RIGHTS TO C. H., A PERSON UNDER THE AGE OF 18: B. W., PETITIONER-RESPONDENT, v. S. H., RESPONDENT-APPELLANT.
• Court: Wisconsin Court of Appeals

IN RE THE TERMINATION OF PARENTAL RIGHTS TO K. E., A PERSON UNDER THE AGE OF 18:

B. W., PETITIONER-RESPONDENT, v. S. H., RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO C. H., A PERSON UNDER THE AGE OF 18:

B. W., PETITIONER-RESPONDENT, v. S. H., RESPONDENT-APPELLANT.

Appeal No. 2021AP43

Appeal No. 2021AP44

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

June 29, 2021

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. Nos. 2019TP5

2019TP6

APPEALS from orders of the circuit court for Trempealeau County: RAMONA A. GONZALEZ, Judge. Reversed and cause remanded with directions.

¶1 SEIDL, J.¹ S.H. appeals from orders entered in two cases, now consolidated on appeal, terminating his parental rights to his two children on the grounds of the continuing denial of his periods of physical placement under WIS. STAT. § 48.415(4).² S.H. argues that § 48.415(4) facially violates his constitutional right to equal protection under the law. It does so, he contends, because it allows for parental rights to be terminated through a family court order without proof that such order denying the parental placement contained a warning that the parent's rights could be terminated if that order remained unchanged, whereas proof of such a warning is required for termination under § 48.415(4) for juvenile court actions. S.H. further argues that the right of parents to have a relationship with their child is a fundamental liberty interest protected by theFourteenth Amendment, thereby triggering strict scrutiny review that § 48.415(4) cannot survive. S.H. also contends that § 48.415(4), as applied to him, violates his right to equal protection because the underlying family court order that B.W. relied upon to obtain summary judgment in this action did not contain a notice of termination as is required in juvenile court actions.

¶2 Finally, S.H. argues that WIS. STAT. § 48.415(4), as applied to him, violates his right to substantive due process because it allowed him to be deemed an unfit parent without consideration of his poverty. S.H. argues that his indigence hampered his access to the family courts because a fee the circuit court required him to pay before he could schedule a hearing prevented consideration of his repeated attempts to regain placement of his children. We reject S.H.'s equal protection challenges, but we reverse the summary judgment on his as-applied substantive due process challenge and remand with directions.

BACKGROUND

¶3 In 2007, a circuit court entered an order for support in response to a petition for child support made by B.W., the mother of the two children involved in these appeals, requiring S.H. to pay child support. The order also granted B.W. and S.H. joint legal custody of the children, and it granted primary physical placement to B.W. The court granted S.H. "secondary periods of physical placement at reasonable times upon reasonable notice."

¶4 In June 2014, a temporary order was entered based on the parties' stipulation, retaining the joint legal custody established in the 2007 order, but denying periods of placement to S.H. "[u]ntil a suitable reunification plan can be established." The circuit court also appointed a guardian ad litem ("GAL"), and itordered that B.W. be responsible for paying the GAL's hourly fee. S.H. continuously failed to make contact with the GAL over the following months—in violation of the court's instructions—and, as a result, the court dismissed the GAL. At a September 2014 hearing, the court imposed a requirement that S.H. pay a $1,000 GAL fee, and it ordered that it would not hold a hearing on changing placement until the fee was paid. A reunification plan was never established.

¶5 S.H. attempted to establish a reunification plan a number of times, filing pro se motions in both July and September 2014 seeking to modify child support and to establish an equal placement arrangement between both parents. In both motions, S.H. requested that court costs be waived. Both times the circuit court complied and found him to be indigent. S.H. failed to properly serve those motions, however, and the court ultimately denied them.

¶6 In February 2015, S.H. properly filed a motion to change placement, and the circuit court scheduled a hearing. But after B.W. sent a letter to the court reminding it of the mandatory GAL fee it had imposed on S.H., the court cancelled the hearing, informing the parties that it would not schedule any further placement hearings until S.H. posted the $1,000 GAL fee.

¶7 S.H. filed several more petitions to establish placement with the parties' children over the following years, each seeking to waive costs and fees. He was found indigent each time, but the circuit court never scheduled a hearing on placement because S.H. never paid the $1,000 GAL fee. On May 1, 2019, the court granted a petition to waive S.H.'s responsibility for the GAL fee. Although S.H. and the GAL discussed having a meeting, S.H. never met with the GAL or attempted to schedule a hearing on placement.

¶8 In July 2019, B.W. filed petitions seeking to terminate S.H.'s parental rights to their two children, to which S.H. entered a denial. Although B.W. initially alleged multiple grounds in support of her petitions, at the court's request, she filed a motion for summary judgment solely on the continuing denial of physical placement ground under WIS. STAT. § 48.415(4). In response to B.W.'s motion, S.H. argued that: (1) § 48.415(4) was unconstitutional on its face, violating his equal protection rights; and (2) the statute violated substantive due process as applied to him because it allowed the court to find him to be an unfit parent, even though his indigence prevented him from mounting a meaningful challenge to the order denying him child placement.³

¶9 At a hearing on the motion, the circuit court granted partial summary judgment in favor of B.W., rejecting S.H.'s equal protection argument relating to WIS. STAT. § 48.415(4) and concluding that grounds had been established to find S.H. an unfit parent. The case proceeded to the dispositional phase, and the court terminated S.H.'s parental rights, finding that neither child had a substantial relationship with S.H., and that it would not be harmful for them to sever ties with him. S.H. now appeals the circuit court's summary judgment order concluding that grounds existed to terminate his parental rights.

DISCUSSION

I. Facial equal protection challenge

¶10 S.H. first argues that the continuing denial of physical placement ground under WIS. STAT. § 48.415(4), as interpreted in Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, 281 Wis. 2d 261, 697 N.W.2d 476, violates his equal protection rights on its face because it does not require proof that a family court order denying a parent physical placement for more than one year warned the parent that his or her rights could be terminated should that order remain in place.⁴ By contrast, for parents in a juvenile delinquency court proceeding, or a proceeding in which his or her child has been adjudicated in need of protection or services (CHIPS), who are facing the same continuing denial ground under § 48.415(4), the petitioner must prove that the order denying visitation warned the parents of a possible termination of their rights should the denial of visitation continue. The statute establishes that a ground for termination exists when the following is proven:

(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365containing the notice required by s. 48.356(2) or 938.356(2).

(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

Sec. 48.415(4). S.H. contends that the disparity in the proof required to find a parent unfit between family court and juvenile court proceedings disadvantages parents subject to termination under § 48.415(4) who are denied placement in family court, which violates their equal protection rights.

¶11 Whether a statutory termination of parental rights (TPR) ground violates S.H.'s constitutional rights is a question of law reviewed independently by the appellate court. See Monroe Cnty. D.H.S.

v. Kelli B., 2004 WI 48, ¶16, 271 Wis. 2d 51, 678 N.W.2d 831. To prove an equal protection violation, the party challenging a statute's constitutionality must show that the state unconstitutionally treats members of similarly situated classes differently. Waupaca Cnty. v. K.E.K., 2021 WI 9, ¶33, 395 Wis. 2d 460, 954 N.W.2d 366. Generally, a statute is presumed to be constitutional, and a party challenging that constitutionality must demonstrate the statute is unconstitutional beyond a reasonable doubt. Dane Cnty. DHS v. P.P., 2005 WI 32, ¶18, 279 Wis. 2d 169, 694 N.W.2d 344.

¶12 S.H. argues that the two classes of parents in WIS. STAT. § 48.415(4) are similarly situated, which is a first required step in an equal protection challenge. See K.E.K.

, 395 Wis. 2d 460, ¶33. S.H. contends that although the family court orders referenced in § 48.415(4) deny physical placement, while the juvenile court orders deny visitation of a child adjudicated CHIPS, the end results are the same. S.H. therefore contends that the two classes of parents are ultimatelysimilar: both are subject to court orders denying them access to their children—either in the form of visitation or placement. He argues that the respective orders require a similar (though not identical) finding that a child's welfare or health is at risk and the orders...