A. M. K., Matter of
| Decision Date | 07 October 1981 |
| Docket Number | No. 80-1869,80-1869 |
| Citation | 105 Wis.2d 91,312 N.W.2d 840 |
| Parties | In the Matter of the Termination of Parental Rights to A. M. K., a minor child: R. D. K., Petitioner, * v. SHEBOYGAN COUNTY SOCIAL SERVICES DEPARTMENT, Respondent. |
| Court | Wisconsin Court of Appeals |
Jack E. Schairer, Senior Asst. State Public Defender, for petitioner.
James W. Frisch, Asst. Dist. Atty., Sheboygan, argued, for respondent; L. Edward Stengel, Dist. Atty., and Cornell DeGrothy, Asst. Dist. Atty., Sheboygan, on brief.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
This is an appeal from an order denying a motion to vacate an order terminating appellant Mr. K.'s parental rights to his six year old son. On appeal, Mr. K. argues that sec. 48.40(2)(b) and (d), Stats. (1977), 1 is void for vagueness, that due process required that less restrictive alternatives to termination should have been considered, that an improper standard of proof was applied and that the trial court abused its discretion. Finding no such statutory or procedural infirmities, we affirm the trial court's decision.
On March 9, 1979, appellant Mr. K. was convicted of the second-degree murder of his wife, K.A.K., and was sentenced to eighteen years in prison. In August 1979, the Sheboygan County Department of Social Services (DSS) filed a petition in the circuit court for termination of Mr. K.'s parental rights. The child, A.M.K., had been placed in DSS custody by court order shortly after his mother's death. Mr. K. had agreed before the termination hearing to consent to his son's adoption only if custody were to go to Mr. and Mrs. G., his aunt and uncle.
At the termination hearing, testimony was heard from Mr. K., Mr. and Mrs. G., two police officers who investigated a battery committed by Mr. K. upon his wife five months before her murder, a psychiatrist who examined the child and a representative from DSS.
On March 10, 1980, Mr. K.'s parental rights were terminated based on secs. 48.40(2)(b) and (d), Stats. 2 48.40 Grounds for termination of parental rights. The court may, upon petition, terminate all rights of parents to a minor in any of the following cases:
(2) If it finds that one or more of the following conditions exist:
(b) That the parents have substantially or continuously or repeatedly refused or neglected or are unable for a prolonged indeterminate period to give the minor the parental care and protection necessary for his health, morals or well-being ; or
(d) That the parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd or lascivious behavior or conviction and confinement for a felony (including hospitalization within the sex deviate statutes), which conduct or status is found by the court to be likely to be detrimental to the health, morals or the best interests of the minor ; .... (Emphasis added.)
Further facts will be given as necessary.
Mr. K. appeals from this order on five bases:
(1) Section 48.40(2)(b) and (d), Stats., is unconstitutionally vague.
(2) The trial court failed to examine less restrictive alternatives to termination.
(3) Equal protection requires that the standard of proof comport with that required by other ch. 48 proceedings.
(4) Due process requires that the standard of proof should have been "beyond a reasonable doubt."
(5) The trial court abused its discretion.
Mr. K. first argues that subsections (2)(b) and (d) of sec. 48.40, Stats., 3 are void for vagueness under the standard set forth in Alsager v. District Court, 406 F.Supp. 10 (S.D.Iowa 1975), aff'd 545 F.2d 1137 (8th Cir. 1976). 4 There, the Alsagers had their parental rights terminated based on neglect and arising out of numerous complaints from neighbors concerning the Alsager children's conduct. The Alsagers challenged the constitutionality of sec. 232.41(2)(b) and (d), Code of Iowa:
The court may upon petition terminate the relationship between parent and child:
....
2. If the court finds that one or more of the following conditions exist:
....
b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.
....
d. That the parents are unfit by reason of debauchery, intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child.
We find both the facts and the statute applied in Alsager to be sufficiently distinguishable from those at hand.
First, as the district court found, the conduct of the Alsagers, in allowing their children to behave so that neighbors would complain, was not such as to put them on notice that their parental rights might be in jeopardy, Alsager, 406 F.Supp. at 18. We cannot agree that Mr. K.'s conduct was similarly ambiguous. As the trial judge pointed out in the decision, Mr. K.'s criminal record indicates that he has spent many years in both juvenile and criminal institutions for crimes ranging from "grand theft to sexual intercourse with a minor, battery to his wife, and second-degree murder." The murder of a child's mother is quite a different matter from the toleration of children's conduct which results in complaints from neighbors. While the Alsagers' conduct put them at the outermost boundaries of the Iowa termination statute, Mr. K.'s conduct here fell well within the foreseeable and expectable boundaries of the Wisconsin termination statute. Where conduct is "hard core," the appellant has no standing to challenge the statute for vagueness. Herzbrun v. Milwaukee County, 504 F.2d 1189, 1193 (7th Cir. 1974).
Moreover, both provisions of the applied Wisconsin statute differ significantly from the Iowa statute applied in Alsager. Section 48.40(2)(b) contains the following phrase not found in Iowa sec. 232.41(2)(b): "(that the parents) are unable for a prolonged indeterminate period (to give the minor the parental care and protection ....)" It is clear from the language in the trial court's decision that inability to care for the child, and not refusal or neglect, was the touchstone: "It is obvious that (Mr. K.) cannot meet his parental responsibilities to his minor son on the basis he has been convicted of second-degree murder of the son's mother and sentenced to eighteen years in the State Prison."
Similarly, sec. 48.40(2)(d), Stats., contains a phrase not included in Iowa sec. 232.41(2)(d): "(that the parents are unfit by reason of) conviction and confinement for a felony (which conduct or status is found by the court to be likely to be detrimental to the health, morals or the best interests of the minor)." Our statute requires that felony conviction and confinement must be found before the trial court examines detrimental conduct. Iowa's statute does not. Again, Alsager is inapposite.
Turning to a constitutional analysis of our statute, we cannot find that sec. 48.40(2)(b) and (d), Stats., is defective for vagueness. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), states that vague statutes carry three dangers: the absence of fair warning, the impermissible delegation of discretion, and the undue inhibition of the legitimate exercise of a constitutional right. We find none of these applies to sec. 48.40(2)(b) and (d), Stats., as applied here.
It can hardly be seriously argued that a statute which provides for termination in the event that a parent is "unable for a prolonged indeterminate period" to care for a child does not give notice to a parent sentenced to eighteen years in prison. The same may be said for the provision in (2)(d), "conviction or confinement for a felony ..., which conduct or status is found by the court to be likely to be detrimental to the health, morals or the best interests of the minor ...." Common sense dictates that one confined to prison for the second-degree murder of the minor's mother has clear notice from the face of the statute that his parental rights may be jeopardized.
Our statute, as applied here, provides substantial objective guidelines for trial courts to follow. Under sec. 48.40(2)(b), a trial judge must determine "a prolonged indeterminate period" of time. Here, by any standard, eighteen years may be said to be prolonged, especially since the child will be twenty-six years old at the end of that time. Similarly, subsection (d) requires a finding of both a felony conviction and detrimental conduct or status. This clearly leaves some discretion with the trial court to determine what constitutes a detriment, but the antecedent objective determination of a felony conviction serves to limit the discretion exercised by the trial court. 5
This factor is the least pertinent to our analysis. Vague statutes have been said to lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 109, 92 S.Ct. at 2299. Here, it can hardly be said that Mr. K.'s conduct steered wide of the unlawful zone. Moreover, we do not see that either statutory provision at issue here would tend to chill the average parent's exercise of his or her freedom to engage in lawful conduct.
Therefore, we find that sec. 48.40(2)(b) and (d), Stats., as applied, is not void for vagueness. 6
Mr. K. next argues that due process requires the trial court, before terminating parental rights, to consider and reject less drastic alternatives.
We believe that an examination of alternate remedies is implicit in a finding of unfitness. Our supreme court has held in In re J.L.W., 102 Wis.2d 118, 136, 306 N.W.2d 46, 55 (1981), that due process in...
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