D. R. v. B. D. (In re M. L. D.)
| Decision Date | 20 February 2019 |
| Docket Number | 2018AP1732,Appeal Nos. 2018AP1731 |
| Parties | IN RE the termination of parental rights to M. L. D., a person under the age of 18: D. R., Petitioner-Respondent, v. B. D., Respondent-Appellant. In re the termination of parental rights to L. L. D., a person under the age of 18: D. R., Petitioner-Respondent, v. B. D., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Brandon appeals circuit court orders terminating his parental rights to his two children pursuant to WIS. STAT. § 48.415(4) based on the petition of Diane, who is Brandon’s former spouse and the children’s mother.2 Brandon argues the court erred by: (1) granting Diane’s partial summary judgment motion determining that grounds exist for the termination of Brandon’s parental rights; (2) determining that the termination of his parental rights is in the best interests of his children; and (3) denying his motion to supplement the records before appeal. We disagree on each issue and affirm.3
¶2 Pursuant to an April 2012 divorce judgment, the family court4 granted each party joint legal custody and shared physical placement of their minor children, Molly and Larry. In October 2016, Brandon was convicted on his guilty pleas of two counts of misdemeanor battery that involved both Molly and Larry, who were eight and six years old, respectively. The criminal court5 withheld Brandon’s sentence and ordered two years' probation with conditions that prohibited him from having contact with Diane, Molly, and Larry.
¶3 On November 22, 2016, the family court modified the parties' April 2012 divorce judgment pursuant to Brandon’s and Diane’s stipulation (the "November 2016 order"). The November 2016 order provided that Diane would have sole legal custody and physical placement of Molly and Larry, and that Brandon would not have any contact with the children.
¶4 One year later, Diane petitioned the circuit court to terminate Brandon’s parental rights to Molly and Larry. As grounds, Diane alleged Brandon had been denied periods of physical placement by a family court order for at least one year. See WIS. STAT. § 48.415(4). That same day, Diane also petitioned for a temporary order and injunction that would prohibit Brandon from contacting and visiting the children during the pendency of the TPR proceedings. The court granted the petition.6
¶5 Brandon contested the TPR petitions. In January 2018, Diane moved for partial summary judgment that grounds existed under WIS. STAT. § 48.415(4) to terminate Brandon’s parental rights and find him to be an unfit parent. In February 2018, the circuit court granted Diane partial summary judgment. The court found the undisputed facts established that the November 2016 order prohibited Brandon from having any contact with the children, that at least one year had elapsed since the order’s entry, and that the order had never been subsequently modified. In March 2018, following a dispositional hearing, the court determined it was in Molly’s and Larry’s best interests to terminate Brandon’s parental rights, and it therefore entered TPR orders.
¶6 Approximately seven months after the circuit court’s decision, in October 2018, Brandon moved the court to supplement the case records for appeal. The court granted Brandon’s motion in part and denied it in part.7 For the requested items that were denied, the court concluded that it "had no authority to supplement the record[s] from other court files." Brandon moved for reconsideration, which the court denied, concluding that he could not supplement the records by "adding evidence that was never introduced" at the dispositional hearing. This consolidated appeal follows.8 Additional facts are provided below.
¶7 Brandon first argues that the circuit court erred because its granting of Diane’s motion for partial summary judgment at the grounds phase of the TPR proceedings was unconstitutional. Whether a statute is unconstitutional as applied to the undisputed facts of a particular case or with respect to a particular party is a question of law that we review de novo. See State v. Herrmann , 2015 WI App 97, ¶6, 366 Wis. 2d 312, 873 N.W.2d 257.
¶8 We review a grant of summary judgment independently, using the same methodology as the circuit court. PNC Bank, N.A. v. Bierbrauer , 2013 WI App 11, ¶9, 346 Wis. 2d 1, 827 N.W.2d 124 (2012). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2).
¶9 The purpose of summary judgment is to avoid trials when there is nothing to try. Tews v. NHI, LLC , 2010 WI 137, ¶42, 330 Wis. 2d 389, 793 N.W.2d 860. All favorable facts and all reasonable inferences must be construed in the nonmoving party’s favor. Oddsen v. Henry , 2016 WI App 30, ¶26, 368 Wis. 2d 318, 878 N.W.2d 720. For this reason, the moving party shoulders the burden in TPR cases to show it is entitled to judgment as a matter of law when, there are no genuine factual disputes See Steven V. v. Kelley H. , 2004 WI 47, ¶6, 271 Wis. 2d 1, 678 N.W.2d 856.
¶10 Diane’s TPR petitions alleged Brandon was unfit under WIS. STAT. § 48.415(4). Under that statute, Diane was required as part of her summary judgment motion to prove that: (1) Brandon had been denied periods of physical placement by a court order in a family action; (2) at least one year had elapsed since the court entered the family court order denying Brandon physical placement of the parties' children; and (3) the family court order had not been subsequently modified during that one-year period. See § 48.415(4).
¶11 Brandon does not assert that the circuit court erred in granting Diane partial summary judgment because disputed material facts exist.9 Rather, Brandon argues he did not receive due process during the partial summary judgment proceedings because: (1) the court’s procedure used to terminate his parental rights was "fundamentally" unfair and not "narrowly tailor[ed]"; (2) WIS. STAT. § 48.415(4) ’s ground for termination "w[as] based on an impossible condition for [him] to comply with"; (3) his "fundamental right to parent" his children was infringed upon because his right was impermissibly terminated due to "improper conduct"; and (4) "continuing denial of periods of physical placement or visitation" under § 48.415(4) as a TPR ground is constitutionally impermissible.
¶12 Brandon’s arguments lack merit for a number of reasons. To begin, his constitutional arguments are undeveloped. We need not address the validity of undeveloped constitutional arguments. See Barakat v. DHSS , 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995). For example, Brandon’s first argument broadly states that the circuit court’s finding of unfitness was "fundamentally" unfair because the procedure by which his parental rights were terminated was not "narrowly tailor[ed]." Yet, his argument lacks in-depth analysis of what appears to be a substantive due process argument. See, e.g. , Dane Cty. DHS v. P.P. , 2005 WI 32, ¶¶15-22, 279 Wis. 2d 169, 694 N.W.2d 344 ; Porter v. State , 2017 WI App 65, ¶¶14-15, 378 Wis. 2d 117, 902 N.W.2d 566. In fact, at times it is not even clear whether Brandon is making a procedural or substantive due process claim in his other constitutional arguments. Nevertheless, we choose to briefly address Brandon’s constitutional arguments as best we can discern them.
¶13 We first note that to the extent Brandon asserts a procedural due process violation, his arguments conflict with our supreme court’s holding in Steven V. There, the court held that the use of summary judgment at the grounds phase of TPR cases—and, more specifically, when the petitioned ground is WIS. STAT. § 48.415(4) —does not violate a parent’s procedural due process rights. Steven V. , 271 Wis. 2d 1, ¶¶39, 44. Brandon provides no argument for why Steven V. would not control our decision. Therefore, the circuit court did not violate Brandon’s procedural due process rights in granting Diane partial summary judgment in the grounds phase of the proceedings.
¶14 Brandon’s second due process argument is that WIS. STAT. § 48.415(4) ’s ground for termination "w[as] based on an impossible condition for [him] to comply with." We understand Brandon to argue that it was impossible for him to have contact with his children because the November 2016 order and the probationary conditions in his criminal case prohibited him from having contact with them. His argument ignores two important facts. First, only the prohibitions set forth in the November 2016 order mattered at summary judgment, not the conditions of his probation. Second, the prohibition to which he claims impermissibly infringes on his due process rights was self-imposed. Brandon stipulated to the November 2016 order providing that Diane would have sole legal custody and sole physical placement of Molly and Larry, and that Brandon would not have any contact with the children. Having agreed to not have contact with the children, Brandon cannot now be heard to claim that very prohibition infringed upon his right to due process.
¶15 Brandon’s next due process argument is that his "fundamental right to parent" his children was infringed upon and impermissibly terminated because of "improper conduct." Presumably, by "improper conduct," Brandon refers to his two battery convictions. However, while the circuit court considered his improper conduct in the best interest phase of the TPR proceedings, it was not Brandon’s improper conduct, but, rather, the unmodified November...
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