In re Brianca M.W.

• Decision Date: 13 March 2007
• Docket Number: No. 2005AP2656.,2005AP2656.
• Citation: 2007 WI 30,728 N.W.2d 652
• Parties: In re the Termination of Parental Rights to BRIANCA M.W., a person under the age of 18: Oneida County Department of Social Services, Petitioner-Respondent, v. Nicole W., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

728 N.W.2d 652

2007 WI 30

In re the Termination of Parental Rights to BRIANCA M.W., a person under the age of 18 Oneida County Department of Social Services, Petitioner-Respondent, v. Nicole W., Respondent-Appellant-Petitioner.

No. 2005AP2656.

Supreme Court of Wisconsin.

Argued October 30, 2006.

Decided March 13, 2007.

For the respondent-appellant-petitioner there were briefs and oral argument by Martha K. Askins, assistant state public defender.

For the petitioner-respondent there was a brief and oral argument by Thomas D. Wiensch, assistant corporation counsel and there was oral argument also by Jennifer A. Stuber, guardian ad litem.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This is a review of an unpublished decision of the court of appeals¹ affirming the circuit court's order² terminating Nicole W.'s (Nicole) parental rights to her daughter, Brianca M.W. (Brianca). The focus of Nicole's appeal is that the circuit court erred in granting partial summary judgment under Wis. Stat. § 48.415(10) because her parental rights to her other child, Rockey, were terminated in a default judgment. Nicole contends that there was insufficient evidence demonstrating the particularized grounds for the termination of Nicole's parental rights in regard to Rockey, which precludes the use of that termination under § 48.415(10)(b) and that a default judgment is not a "termination on grounds," as she interprets § 48.415(10)(b). Consequently, Nicole argues, partial summary judgment should not have been granted and her parental rights were unlawfully terminated.

¶ 2 We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, "on one or more of the grounds specified in this section," in § 48.415(10)(b) refers to proving only that the prior termination was an involuntary termination. We also conclude that the order terminating Nicole's parental rights to Rockey, which arose from her default for failing to comply with a court order to personally appear at the fact-finding hearing, cannot be collaterally attacked in this proceeding and is sufficient evidence to prove that there was a prior involuntary termination of Nicole's rights to another child. Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶ 3 Nicole's daughter, Brianca, was born on October 21, 2003. Brianca was placed in foster care shortly after birth and has continued in foster care through the time of trial.³ On March 11, 2005, the Oneida County Department of Human Services (the Department) filed a petition to terminate Nicole's parental rights to Brianca. The petition alleged two grounds for the termination of Nicole's parental rights: Wis. Stat. § 48.415(2), Brianca's continuing need of protection or services and § 48.415(10), the involuntary termination of Nicole's parental rights to another child within the previous three years.

¶ 4 The Department moved for partial summary judgment on the second ground, relying on an order filed in Waukesha County on February 3, 2003 that involuntarily terminated Nicole's parental rights to her son, Rockey.⁴ The order states that Nicole was in default because she failed to appear at the fact-finding hearing and that the termination of her rights to Rockey was involuntary, but it does not state the precise grounds for the involuntary termination. To explain more fully, section 6 of the standard order form that the Waukesha County Circuit Court employed contains a list of all of the grounds found in Wis. Stat. § 48.415 for an involuntary termination. Opposite each ground is a box to check, which when checked would indicate that ground was a basis for the termination. However, the circuit court checked none of the boxes in section 6 of the form. The petition that commenced the Waukesha County termination of parental rights proceedings alleged that Nicole had abandoned Rockey, § 48.415(1), and that Rockey was in continuing need of protection or services, § 48.415(2).

¶ 5 In the present Oneida County termination proceedings, two hearings were held on the Department's motion for partial summary judgment. At the first hearing, Nicole argued that the order terminating her rights to Rockey was not sufficient because it was not a "termination on grounds," as she interprets Wis. Stat. § 48.415(10)(b), because the order was based on her default at the termination proceedings. The court reviewed the Waukesha order, which stated that Nicole was in default but did not state the specific grounds employed for the involuntary termination. The court then continued the hearing to allow the Department to produce a copy of the Waukesha petition to determine whether grounds sufficient under § 48.415 had been alleged. At the second hearing, the court reviewed the petition in combination with the Waukesha County Circuit Court order and determined that the order was sufficient to establish an involuntary termination of parental rights within the criteria set out in § 49.415(10)(b).⁵

¶ 6 Nicole appealed and repeated her argument that the termination of her parental rights to Rockey based on her default was not "based on grounds" as she interprets Wis. Stat. § 48.415(10). Nicole also argued that the default order did not show the circuit court had made findings of fact based on evidence presented to show the county had proved the grounds alleged and therefore, the prior termination order was insufficient in that way as well.

¶ 7 The court of appeals rejected Nicole's arguments and affirmed the circuit court's decision. The court of appeals reasoned that because the prior termination was involuntary, a fact that Nicole does not contest, it was necessarily accomplished on one of the grounds listed in Wis. Stat. § 48.415. See Oneida County Dep't of Soc. Servs. v. Nicole W., No.2005AP2656, unpublished slip op., ¶ 10, 2006 WL 278177 (Wis.Ct.App. February 7, 2006). The court of appeals also concluded that an order demonstrating an involuntary termination of parental rights to another child within the previous three years, as required in § 48.415(10)(b), was the only proof the Department was required to submit. The court of appeals reasoned that even with a default judgment rendered because Nicole failed to comply with a court order to personally appear at the fact-finding hearing as the basis for terminating parental rights, the Department must have proved the grounds for the termination by clear and convincing evidence. Id., ¶ 11. The court stated, "[t]o require the type of extensive review suggested by Nicole would be tantamount to permitting a collateral attack on the prior TPR." Id., ¶ 12.

II. DISCUSSION

A. Standard of Review

¶ 8 We review the partial grant of summary judgment independently, applying the same methodology as the circuit court. Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 15, 291 Wis.2d 283, 717 N.W.2d 17. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Wis. Stat. § 802.08(2).

¶ 9 To determine whether partial summary judgment was properly granted in this case, we interpret Wis. Stat. § 48.415(10). The interpretation of a statute is a question of law that we also review independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.

B. Termination of Parental Rights

¶ 10 Terminations of parental rights "are among the most consequential of judicial acts, involving as they do `the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.'" Steven V. v. Kelley H., 2004 WI 47, ¶ 21, 271 Wis.2d 1, 678 N.W.2d 856 (quoting Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis.2d 1, 629 N.W.2d 768). A parent's interest in the parent-child relationship may rise to the level of a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. Id., ¶ 22 (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).⁶ When a fundamental liberty interest is at issue, the due process clause of the Fourteenth Amendment requires that proof of parental unfitness be shown by clear and convincing evidence. Id., ¶ 23.

¶ 11 The Wisconsin Children's Code, Wis. Stat. ch. 48, reflects constitutional safeguards. Evelyn C.R., 246 Wis.2d 1, ¶ 22, 629 N.W.2d 768. As provided in the Children's Code, an involuntary termination of parental rights proceeding involves two steps—grounds and disposition. Id., ¶¶ 22-23. The first step, the grounds or unfitness phase, includes a fact-finding hearing "to determine whether grounds exist for the termination of parental rights." Id. (quoting Wis. Stat. § 48.424).

¶ 12 Wisconsin Stat. § 48.415 sets out 12 grounds for an involuntary termination of parental rights, including the grounds relied upon here, a prior involuntary termination of parental rights to another child within the prior three years. § 48.415(10).⁷ At the fact-finding hearing, "[t]he petitioner must prove the allegations [supporting grounds for termination] by clear and convincing evidence." Evelyn C.R., 246 Wis.2d 1, ¶ 22, 629 N.W.2d 768; Wis. Stat. § 48.31(1). While the legislative objective of the Children's Code is to promote the best interests of the child,⁸ the parent's rights are a court's central focus during the grounds phase of a termination of parental rights proceeding. Id.

¶ 13 If grounds are found, the court must find the parent unfit. Steven V., 271 Wis.2d 1, ¶ 25, 678 N.W.2d 856. The proceeding then moves to step two, the dispositional phase. Evelyn C.R., 246 Wis.2d 1, ¶ 23, 629 N.W.2d 768; Steven V., 271 Wis.2d 1, ¶ 26, 678 N.W.2d 856 (citing Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶ 28, 255 Wis.2d 170, 648 N.W.2d 402). At the dispositional phase, the court determines whether...