K.D.J., In Interest of

• Decision Date: 25 June 1991
• Docket Number: No. 89-0816,89-0816
• Citation: 163 Wis.2d 90,470 N.W.2d 914
• Parties: In the Interest of K.D.J., a Person Under the Age of 18. B.L.J., Appellant-Petitioner, v. POLK COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.
• Court: Wisconsin Supreme Court

Page 914

470 N.W.2d 914

163 Wis.2d 90

In the Interest of K.D.J., a Person Under the Age of 18 B.L.J., Appellant-Petitioner, v. POLK COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

No. 89-0816.

Supreme Court of Wisconsin.

Argued Jan. 3, 1991.

Decided June 25, 1991.

Donald T. Lang, Asst. State Public Defender, for appellant-petitioner.

Mark D. Biller, Polk Co. Dist. Atty., for respondent.

David L. Grindell and Grindell Law Offices, Frederic, Guardian Ad Litem, for K.D.J.

Anne Marie Abell and Legal Aid Soc. of Milwaukee, Milwaukee, amicus curiae.

DAY, Justice.

This is a review of a decision of the court of appeals, 153 Wis.2d 249, 450 N.W.2d 499 (Ct.App.1989) affirming an order of the circuit court for Polk County terminating the parental rights of B.L.J. (mother) to K.D.J. (child), Honorable James R. Erickson, Judge. The mother petitioned this court for review and the petition was granted. We affirm the decision of the court of appeals.

The issue on review as framed by counsel for the mother is:

AS APPLIED BY THE TRIAL COURT AND COURT OF APPEALS BELOW, IS SEC. 48.424(4), STATS., UNCONSTITUTIONAL AND IN CONFLICT WITH THIS COURT'S DECISION IN IN THE INTEREST OF J.L.W., 102 Wis.2d 118, 306 N.W.2d 46 (1981), INSOFAR AS THIS PROVISION MANDATES A FINDING OF PARENTAL UNFITNESS ONCE THE STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS HAVE BEEN ESTABLISHED?

We conclude the answer is "no" and that sec. 48.424(2) 1987-88 Stats., is constitutional and comports with due process as applied in this case. We also conclude that J.L.W. requirements as to what constitutes parental unfitness in this case has been codified by the legislature and that what warrants termination of parental rights is left by the statutory scheme to the discretion of the circuit court.

The statute, 48.424(4), 1987-88 ¹ in question here, reads as follows:

48.424 Fact-finding hearing.... (4) If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. A finding of unfitness shall not preclude a dismissal of a petition under s. 48.427(2). The court shall then proceed immediately to hear evidence and motions related to the dispositions enumerated in s. 48.427. The court may delay making the disposition and set a date for a dispositional hearing no later than 45 days after the fact-finding hearing if:

(a) All parties to the proceeding agree; or

(b) The court has not yet received a report to the court on the history of the child as provided in s. 48.425 from an agency enumerated in s. 48.069(1) or (2) and the court now directs the agency to prepare this report to be considered before the court makes the disposition on the petition. (Emphasis added).

It is the underlined portion that saves its constitutionality. Section 48.427(2) Stats., provides 48.427 Dispositions.... (2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights.

This action for termination of parental rights (TPR) was brought pursuant to sec. 48.415(2), Stats. ² 1985-86:

48.415 Grounds for involuntary termination of parental rights. At the fact-finding hearing the court may make a finding that grounds exists for the termination of parental rights. Grounds for termination of parental rights shall be one of the following: ... (2) CONTINUING NEED OF PROTECTION OR SERVICES. Continuing need of protection or services may be established by a showing of all of the following: (Emphasis added).

(a) That the child has been adjudged to be in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363 or 48.365 containing the notice required by s. 48.356(2).

(b) That the agency responsible for the care of the child and the family has made a diligent effort to provide the services required by the court.

(c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders, the parent has substantially neglected, wilfully refused or been unable to remedy the conditions which resulted in the removal of the child from the home and there is a substantial likelihood that the parent will not remedy these conditions in the future. ³

On October 3, 1988, the order of the Circuit Court for Polk County, James R. Erickson, Judge, was entered terminating the parental rights of B.L.J. to her son, K.D.J. Among other things, the court found her to be unfit as a parent; the child was in good health and adoptable and that adoption was in the child's best interest. It is this order, affirmed by the court of appeals, that is the subject of this review. The order followed a jury trial in which it was established by the jury findings that the child was in "continuing need of protection or services," a prerequisite for termination under sec. 48.415(2), Stats.

The child was born October 21, 1982 and the first CHIPS (child in need of protection or services) petition was filed in May 1983, and was not contested by the mother. On June 7, 1983, a dispositional order was entered placing the child in foster care until the mother completed an inpatient alcohol treatment program. On July 5, 1983, he was returned to the mother by court order after she successfully completed the treatment. The court also ordered the mother to abstain from alcohol or drugs. The child was returned to foster care in October, 1983, after the mother was hospitalized following an automobile accident in which she was cited for operating a motor vehicle while under the influence of alcohol. The child was with her at the time of the accident. The child was continued in foster care following an uncontested hearing held on January 12, 1984. On April 17, 1984, the mother entered a "halfway house" in Shell Lake, Wisconsin. On June 15, 1984, the CHIPS order was extended. A year later, June 17, 1985, because of an apparent "commitment to sobriety" by the mother, the child was returned to her custody pursuant to order. From then until March of 1986, there was no further legal action. In April, 1986, the mother voluntarily agreed to a foster home placement for the child so she could obtain inpatient treatment for her alcohol problem. On June 9, 1986, an order was entered placing the child in foster care for six weeks after which he was to be returned to his mother. She successfully completed the program.

However, on October 22, 1986, an order was entered returning the child to foster care. On March 2, 1987, the court extended the dispositional order as well as his foster placement. The mother failed to comply with the conditions imposed. The child has remained in foster care since that time. On March 1, 1988, the CHIPS dispositional order was again extended for one year.

On November 30, 1987, the Department of Social Services for Polk County petitioned the circuit court for termination of the mother's parental rights pursuant to sec. 48.415(2), Stats. The hearing, before a jury, took place on June 16th and 17th, 1988.

In addition to the facts cited above, at the trial and subsequent dispositional hearing there was testimony that the mother had been repeatedly warned that continued failure to abide by the court's requirements that she abstain from alcohol and drugs, attend counseling and therapy sessions, attend AA (Alcoholics Anonymous) meetings on a regular basis, Al-Anon (alcoholic support group) meetings and cooperate with the Social Services Department, could result in termination of her parental rights. Such warnings were given pursuant to sec. 48.356(1) and (2), Stats. 1987-88. ⁴

All of these orders and attempts to aid the mother by the Department were designed to help her to overcome her alcohol problem and to function as a parent for her child. She acknowledged that she was an alcoholic. But the record of her cooperation and compliance with the requirements designed to help her remedy the problems that caused the child to be placed in foster homes was very poor. She said there were periods when she refrained from alcohol, once for as long as three months. But her history of failure to cooperate and repeated lapses was amply supported by the evidence.

The jury was made fully aware at the termination of parental rights hearing, both by the District Attorney representing the Polk County Department of Social Services, and the Public Defender, representing the mother, and by the guardian ad litem, representing the child, that the Department was asking the court to terminate the mother's parental rights. It was made clear in the opening and closing statements by counsel. It was also made clear that whether or not that termination would take place was first of all dependent on how they, the jury, answered the special verdict questions.

At the beginning of the hearing, the court advised the jury:

The Department of Social Services has filed a petition with this court which alleges that [K.D.J.] is in need of continuing protection or services. Your role as jurors will be to determine whether [K.D.J.] is in continuing need of protection or services. At the end of this hearing you will be given a special verdict to answer.

In his opening statement to the jury, the District Attorney, Keith O. Jones, representing the Polk County Department of Social Services said:

Today you are here because the Department of Social Services [sic] Polk County Department of Social Services has taken a very serious step. The Department of Social Services has filed with the court a petition to terminate the parental rights of [B.L.J.] to [K.D.J.] and you as a jury although not dealing with that issue will be dealing with the issue of whether or not [K.D.J.] is a child who is in continuing need of protection or services. It will be the obligation of the petitioners to prove the six elements of that to you.

The district attorney then listed the elements that later were encompassed in...