IN RE TERMINATION OF PARENTAL RIGHTS TO DIANA

• Decision Date: 23 March 2005
• Citation: 694 NW 2d 344,2005 WI 32
• Parties: In re the Termination of Parental Rights to Diana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Channa P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Rattanck P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Dara P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Rothana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Dera P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Ericka P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

2005 WI 32

694 NW 2d 344

In re the Termination of Parental Rights to Diana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Channa P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Rattanck P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Dara P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Rothana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Dera P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

In re the Termination of Parental Rights to Ericka P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner.

03-2440, 03-2441, 03-2442, 03-2443, 03-2444, 03-2445, 03-2446.

In the Supreme Court of Wisconsin.

Oral Argument: September 9, 2004.

Opinion Filed: March 23, 2005.

For the respondent-appellant-petitioner there were briefs by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis.

For the petitioner-respondent there was a brief and oral argument by Maureen A. Plunkett, assistant corporation counsel.

An amicus curiae brief was filed by Scott Horne, LaCrosse, on behalf of the Wisconsin District Attorney's Association; E. Michael McCann, Milwaukee, on behalf of the Milwaukee County District Attorney's Office; and Elisabeth Mueller, Wauwatosa, on behalf of the Milwaukee County District Attorney's Office.

¶1 PATIENCE DRAKE ROGGENSACK, J

Because we conclude that P.P.'s parental rights were terminated by use of a statutory scheme that requires a showing of unfitness before termination of parental rights can occur, that such a showing was made and that P.P. did not contest the validity of the order that formed the basis for the State's petition, we affirm the decision of the court of appeals.

I. BACKGROUND

¶2 This case arises out of a petition by Dane County Department of Human Services (DCDHS) to terminate the parental rights of P.P. to seven minor children, Ericka P., Diana P., Channa P., Rattanck P., Dara P., Rothana P., and Dera P. (collectively "the children"), and an order for termination, the Honorable Daniel R. Moeser, presiding.¹ The children currently range in age from 17 to 6.

¶3 County human services agencies first became involved with the family in 1988, based on allegations of physical abuse of the children in Rock County. In 1990, Rock County took custody of the children and placed them in foster care. Visitation was suspended in October 1991, and P.P. did not have any contact with his children between October 1991 and October 1992. The children were later returned to their parents' home, against the recommendation of Rock County Human Services.

¶4 The family moved to Madison in February 1994. DCDHS became involved in April 1994. In March 2001, one of the children disclosed that P.P. had sexually assaulted her. DCDHS subsequently substantiated reports that P.P. had sexually abused one of the children and that both parents had physically abused and neglected all of the children. P.P. was arrested, and the children were placed in foster care on March 21, 2001.

¶5 The children were determined to be in need of protection or services (CHIPS) on July 18, 2001. On August 12, 2002, DCDHS filed a petition for termination of parental rights. The petition alleged that grounds existed for involuntary termination of P.P.'s parental rights under Wis. Stat. § 48.415(1), (2) and (6) (2001-02)² based on abandonment, continuing need of protection or services, and failure to assume parental responsibility, respectively.

¶6 In the meantime, P.P. pled guilty to felony child abuse and was in prison until November 12, 2002. Upon release, he lived in a halfway house for about three months, and then he was taken into custody by federal immigration authorities.

¶7 On March 4, 2003, DCDHS filed an amendment to its petition for termination of parental rights, restating the ground for involuntary termination stated in Wis. Stat. § 48.415(2), "Continuing need of protection or services," and adding § 48.415(4), "Continuing denial of periods of physical placement or visitation." Regarding the latter ground, DCDHS made two allegations. First, it alleged that P.P. was denied visitation with the children, pursuant to a February 27, 2002 Dane County Circuit Court order that contained the notice required by Wis. Stat. § 48.356(2). Second, DCDHS alleged, "As of February 28, [2]003, at least one year elapsed since the order denying visitation. The court has not subsequently modified its order so as to permit visitation."

¶8 On April 16, 2003, P.P. denied the allegations and requested a jury trial. However, on June 2, 2003, P.P. entered a no contest plea to the DCDHS allegations establishing grounds for termination of parental rights under Wis. Stat. § 48.415(4) and waived his right to a trial. P.P. stipulated that there was a factual basis for his plea. The court accepted his plea and stated that it would place in the record the earlier court orders and their underlying factual findings denying visitation. They would provide a factual basis for the ground pled to by P.P. Only one order, the one signed October 31, 2002 from an August 12, 2002 hearing, is found in the record with P.P.'s signed no contest plea and waiver statement.

¶9 The October 31, 2002 order, which revised and extended a prior dispositional order, required that the parents have no contact, either direct or indirect, with the children and denied the parents visitation. It set out in detail the conditions in P.P.'s home that required no contact by the parents. For example, it explained that the children had been removed from their parents' home because "[r]eports of physical and sexual abuse of the children by both parents" had been substantiated and reports of "severe neglect of the children by both parents" had also been substantiated. The order that formed the factual basis for the plea to Wis. Stat. § 48.415(4) also established that "[n]o known services could ensure the safety of the children in the parental home."

¶10 The October 31, 2002 order also established that the following conditions had to be met before the parents could be granted visitation:

A. Each parent must participate in individual therapy until such time that the children's therapists, in consultation with the parent's therapists, believe[] that the children can be physically and emotionally safe with the parent in any setting for visitation;

B. Each parent must demonstrate a 3 month period of sobriety, as determined by the Court, and submit all requested samples for urinalysis. Failure to submit a sample for urinalysis shall be considered the same as a test result indicating the presence of controlled substances or alcohol in the parent's urine;

C. Each parent must sign each and every consent for release of information that is requested by the assigned social worker;

D. Each parent must not be incarcerated.

¶11 On June 10, 2003, the court held a dispositional hearing to determine whether the parents' parental rights should be terminated. The court heard testimony from a DCDHS social worker, who had prepared a report for the court, and from P.P. The court then adopted the facts and conclusions of the social worker's report, which detailed the following: the parents' mental health and substance abuse issues; the extreme physical abuse, sexual abuse, and neglect of the children; the children's fear of their parents, including their legitimate fear that their father would kill them; the children's desire never to return to their parents' home; the health, emotional and behavioral problems the children continue to experience; the services offered and provided to the parents; and the children's continuing need for foster care placement, despite the intensive provision of services.

¶12 The court noted that the children had been subject to "egregious" physical, mental and sexual abuse and that DCDHS had provided services to the parents and despite those services, conditions had not been met to return the children to their parental home. The court also noted that the children had been separated from both parents for the prior 26 or 27 months. The court explained that termination of parental rights was in the best interests of the children, six of whom were likely to be adopted and the eldest of whom would be living safely with a guardian. The court stated that severing the children's relationships with their parents would be beneficial to the children and that the children had strong relationships with caregivers in their current placements. In addition, the court explained that DCDHS had made reasonable, even extraordinary, efforts to prevent removal. The court found the parents unfit pursuant to Wis. Stat. § 48.424(4) and entered an order terminating parental rights to all the children.

¶13 P.P. appealed, and the court of appeals affirmed. P.P. then filed a petition for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶14 Whether a statute is constitutional presents a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328.

B. Facial Constitutional Challenge

¶15 P.P. raises a substantive due process challenge³ to Wis. Stat. § 48.424(4) because that statute provides that...