Interest of Kyle S.-G., In re

• Decision Date: 27 June 1995
• Docket Number: No. 94-1965,94-1965
• Citation: 533 N.W.2d 794,194 Wis.2d 365
• Parties: In re the Interest of KYLE S.-G., a Child under the Age of 18. Odd S.-G., Petitioner-Appellant, v. Carolyn S.-G., Respondent-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 794

533 N.W.2d 794

194 Wis.2d 365

In re the Interest of KYLE S.-G., a Child under the Age of 18.

Odd S.-G., Petitioner-Appellant, v. Carolyn S.-G., Respondent-Respondent-Petitioner.

No. 94-1965.

Supreme Court of Wisconsin.

Submitted on Briefs April 6, 1995.

Decided June 27, 1995.

For the respondent-respondent-petitioner there were briefs by Richard J. Auerbach and Auerbach & Porter, Madison.

For the petitioner-appellant there was a brief by Judith Sperling Newton, Lynn J. Bodi, Barbara A. Neider and Stafford, Rosenbaum, Rieser & Hansen, Madison.

BABLITCH, Justice.

Odd S.-G. (Odd) filed a petition for the involuntary termination of his daughter Carolyn S.-G.'s (Cally) parental rights to her child, Kyle S.-G., Odd's grandchild. Cally seeks review of a decision of the court of appeals which held that in an action for the involuntary termination of parental rights, once abandonment, as that term is used in the statutes, has been established, the burden of proof shifts to the opposing parent to prove by clear and convincing evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care or well-being. We conclude that the burden of proof does shift to the parent once abandonment has been established, and that it is the parent's burden to show by a preponderance of the evidence that disassociation or relinquishment of responsibility for the child's care and well-being has not occurred. Accordingly, although we apply a different standard of proof to the burden held by the parent, we affirm the decision of the court of appeals and remand to the circuit court for a new trial.

The facts relevant to this review are undisputed. Cally is the mother of Kyle and the daughter of Odd and his wife Carolyn S.-G. While living in Waukesha near their daughter, Odd and his wife provided regular care for their grandson, Kyle. From the time of Kyle's birth on October 27, 1990, Odd and his wife were concerned about Cally's lifestyle and what they perceived as its negative impact on Kyle.

On November 8, 1992, shortly after Kyle's second birthday, Cally agreed to let her parents take Kyle with them for approximately a two-month vacation, to visit their other children living in Maine and Utah. While on vacation, Odd and Carolyn decided to relocate to warmer climates and moved into a home in Virginia with Kyle. Odd and Carolyn never returned with Kyle to Wisconsin; Cally did not see or directly speak to Kyle between November 9, 1992 and November 9, 1993.

On December 28, 1993, Odd filed a petition for the involuntary termination of Cally's parental rights to Kyle. The petition alleged that Cally had abandoned Kyle for more than one year. See sec. 48.415(1)(a)3, Stats. ¹ After a five-day trial, the court gave the jury the following instruction on the burden of proof with respect to abandonment: "The petitioner Odd S.-G. has the burden of convincing you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that Cally has abandoned Kyle." The jury returned a verdict finding that Cally had not abandoned Kyle.

Odd brought a motion for judgment notwithstanding the verdict arguing, inter alia, that the circuit court erred in refusing to give the jury an additional instruction informing the jury that if Odd proved the basic elements of abandonment under a clear and convincing standard of proof, the burden of production and persuasion shifted to Cally to prove by a preponderance of the evidence that she had not disassociated herself from Kyle or relinquished her parental rights. The circuit court denied the motion.

Odd appealed, and the court of appeals reversed and remanded for a new trial on the basis that the jury was not properly instructed on the burden of proof with respect to abandonment. The court held that the jury should have been instructed that after Odd met his burden Cally had the burden of proving by clear and convincing evidence that she did not disassociate herself from Kyle or relinquish responsibility for his care or well-being. Cally seeks review from that decision.

The issue is whether a showing of abandonment under sec. 48.415(1)(a) 3, Stats., shifts the burden of persuasion under sec. 48.415(1)(c) to Cally to prove that she had not disassociated herself from Kyle or that she had not relinquished responsibility for Kyle's care and well-being. If the burden of proof shifts to Cally, we must determine the standard to be applied to that burden. This presents a question of statutory interpretation which we review de novo. Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis.2d 651, 529 N.W.2d 905 (1995). The goal in statutory interpretation cases is to ascertain and give effect to the legislature. Id. When interpreting a statute, we first look to statutory language and if the meaning is clear, we will not look outside the statute. Voss v. City of Middleton, 162 Wis.2d 737, 749, 470 N.W.2d 625 (1991). If the statute does not clearly set forth the legislative intent we will look at the history, scope, context, subject matter and object of the statute to aid in our construction. Id.

Section 48.415(1)(a)3, Stats., provides that abandonment may be established by a showing that: (1) the child has been left by the parent with a relative or other person; (2) the parent knows or could discover the whereabouts of the child; and (3) the parent has failed to visit or communicate with the child for a period of one year or longer. Section 48.31(1), Stats., provides that the party seeking to terminate parental rights must prove these basic facts by clear and convincing evidence. Once these facts are established, sec. 48.415(1)(c) provides that the showing may be rebutted by other evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care or well-being. That is, the natural parent may rebut the presumption of abandonment with evidence of nondisassociation. See In Interest of T.P.S., 168 Wis.2d 259, 266, 483 N.W.2d 591 (Ct.App.1992).

Although Cally acknowledges that the court of appeals in In Interest of T.P.S. recognized that sec. 48.415, Stats., creates a presumption of abandonment, she disagrees with that conclusion. Assuming a presumption exists, however, she argues that it is a legal presumption akin to a prima facie showing which does not shift the burden of persuasion but merely requires a fact-finder to adjudge that a child has been abandoned absent evidence to the contrary. She contends that once she meets the burden of production and introduces evidence that she has not disassociated herself from Kyle or relinquished responsibility for his care and well-being, the presumption of abandonment vanishes. At that point, Odd must persuade the jury under a clear and convincing burden of proof that Cally did disassociate herself from Kyle and that the facts establish abandonment. In Cally's view she never bears the burden of persuasion; Odd retains the burden of proving abandonment by clear and convincing evidence at all times.

On the other hand, Odd contends that once he establishes the basic facts of abandonment and persuades the fact-finder of their actual existence, the burdens of both production and persuasion shift to Cally. According to Odd, Cally must prove that she did not disassociate herself from Kyle or relinquish responsibility for Kyle's care and well-being.

A termination of parental rights (TPR) action based upon a showing of abandonment under sec. 48.415(1)(a)3, Stats., creates a rebuttable presumption of abandonment: sec. 48.415(1)(a)3 provides that a showing of three basic facts establish abandonment and sec. 48.415(1)(c) provides that the showing of abandonment may be rebutted by evidence that Cally has not disassociated herself from Kyle or relinquished responsibility for his care and well-being. However, sec. 48.415(1)(c) is silent with respect to the effect of the presumption on the opposing party. We conclude that because the statute is silent and because a TPR action is civil in nature, see In re Termination of Parental Rights to M.A.M., 116 Wis.2d 432, 442, 342 N.W.2d 410, 415 (1984), the presumption is governed by sec. 903.01, Stats., which addresses presumptions in civil actions.

Section 903.01 provides:

Presumptions in general. Except as provided by statute, a presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

This rule of evidence recognizes that once established, a presumption shifts the burden of production and persuasion to the party opposing the presumption. See Judicial Council Committee Notes, 1974, sec. 903.01, 59 Wis.2d R41, R42 ( [the presumption] shift[s] the burden of persuasion as well as the burden of producing evidence. The section effectuates a major change in Wisconsin law.).

The operation of sec. 903.01, Stats., works as follows. The party relying on the presumption "has the burden of proving the basic facts." 7 DANIEL D. BLINKA, WISCONSIN PRACTICE sec. 301.4 at 52 (1991). The term "burden" referred to in the statute refers to both the burdens of production and persuasion. Once the basic facts are found to exist, i.e., the petitioner has both produced evidence of those facts and convinced the jury of their existence, the burdens of persuasion and production shift to the party opposing the presumption. That party then bears the burden of proving "that the nonexistence of the presumed facts is more probable than its existence." Id.

As applied to this case then, sec. 903.01, Stats.,...