Portage Cnty. Dep't of Health & Human Servs. v. S. Z. (In re R.Z.), 2022AP1352

CourtCourt of Appeals of Wisconsin
Writing for the CourtBLANCHARD, P.J.
PartiesIn the interest of R.Z., a person under the age of 18: v. S. Z., Respondent-Appellant, Portage County Department of Health and Human Services, Petitioner-Respondent, C. Z., Respondent. In the interest of R.Z., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent, v. S. Z., Respondent-Appellant, C. Z., Respondent. In the interest of C.Z., Jr., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent, v. S. Z., Respondent-Appellant, C. Z., Respondent. In the interest of J.Z., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent, v. S. Z., Respondent-Appellant, C. Z., Respondent.
Docket Number2022AP1352,2022AP1353,2022AP1354,2022AP1355
Decision Date17 November 2022

In the interest of R.Z., a person under the age of 18:

Portage County Department of Health and Human Services, Petitioner-Respondent,
v.

S. Z., Respondent-Appellant,

C. Z., Respondent. In the interest of R.Z., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent,
v.

S. Z., Respondent-Appellant,

C. Z., Respondent. In the interest of C.Z., Jr., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent,
v.

S. Z., Respondent-Appellant,

C. Z., Respondent. In the interest of J.Z., a person under the age of 18: Portage County Department of Health and Human Services, Petitioner-Respondent,
v.

S. Z., Respondent-Appellant,

C. Z., Respondent.

Nos. 2022AP1352, 2022AP1353, 2022AP1354, 2022AP1355

Court of Appeals of Wisconsin, District IV

November 17, 2022


This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEALS from orders of the circuit court for Portage County: Nos. 2021TP5, 2021TP6, 2021TP7, 2021TP8 THOMAS T. FLUGAUR, Judge.

BLANCHARD, P.J. [1]

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¶1 S.Z. appeals the circuit court's orders terminating her parental rights to the four children named in the caption on the petition of the Portage County Department of Health and Human Services (the County). S.Z. challenges the circuit court's grant of summary judgment in favor of the County finding S.Z. unfit as a parent under Wis.Stat. § 48.415(4), i.e., on

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the ground that more than one year had passed since a circuit court order denied visitation to S.Z. for each of the children, without the order being modified to permit visitation. S.Z. specifically contends that she submitted an affidavit to the circuit court that raised a genuine issue of material fact as to whether § 48.415(4) is unconstitutional as applied to her. S.Z. also argues that the circuit court erroneously exercised its discretion during the dispositional phase in terminating her parental rights. I reject S.Z.'s arguments and affirm.[2]

BACKGROUND

¶2 In July 2021, the County petitioned for the termination of S.Z.'s parental rights to the children and also petitioned for termination of the parental rights of the children's father, C.Z. As to each child, for each parent, the County alleged the existence of two grounds for the termination of parental rights: that there was a continuing need of protection or services under Wis.Stat. § 48.415(2) and that there was a continuing denial of visitation under § 48.415(4).[3]

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The latter ground was based on circuit court orders entered as part of child in need of protective services (CHIPS) proceedings for each child, held in 2019 and 2020.

¶3 Also in July 2021, the County filed a motion for summary judgment on the ground that the County had established that S.Z. was unfit under the denial of visitation ground in Wis.Stat. § 48.415(4). As described in discussion below, S.Z. and C.Z. filed affidavits in response to the County's motion. The circuit court granted the motion for summary judgment. Based on this ruling, the consolidated cases proceeded to the dispositional phase.

¶4 The circuit court held a dispositional hearing in April 2022. Testifying witnesses included S.Z. and a social worker who was assigned to the children during the CHIPS proceedings. At the conclusion of the hearing, the court terminated S.Z.'s parental rights as to each child. S.Z. appeals.

DISCUSSION

¶5 After providing pertinent standards of review, I explain why I reach the merits of S.Z.'s argument that the circuit court erred in granting summary

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judgment regarding her parental fitness-despite the failure of either S.Z. or C.Z. to raise the issue in the circuit court. Then I address the merits of both issues raised by S.Z. in this appeal.

¶6 Involuntary termination of parental rights cases follow a "two-part statutory procedure." Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis.2d 1, 678 N.W.2d 856. Pertinent here, "[i]n the first, or 'grounds' phase of the proceeding, the petitioner must prove by clear and convincing evidence that one or more of the statutorily enumerated grounds for termination of parental rights exist." Id.; Wis.Stat. § 48.31(1). Our supreme court has held that in some circumstances the grounds phase can be disposed of through summary judgment, under the standards established in Wis.Stat. § 802.08. Steven V., 271 Wis.2d 1, ¶¶4-5, 37-39. I review the grant of summary judgment de novo. See Oneida Cnty. Dep't of Social Servs. v. Nicole W., 2007 WI 30, ¶8, 299 Wis.2d 637, 728 N.W.2d 652. "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. (citing § 802.08(2)).

¶7 On the merits, S.Z. challenges the constitutionality of a statute, which is an issue of law. See State v. McGuire, 2010 WI 91, ¶25, 328 Wis.2d 289, 786 N.W.2d 227.

¶8 In the second, "dispositional phase, the court is called upon to decide whether it is in the best interest of the child that the parent's rights be permanently extinguished." Steven V., 271 Wis.2d 1, ¶27 (citing Wis.Stat. § 48.426(2)). I review the circuit court's disposition of a termination of parental rights case for an erroneous exercise of discretion. See Gerald O. v. Cindy R., 203 Wis.2d 148,

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152, 551 N.W.2d 855 (Ct. App. 1996). "The [circuit] court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law and, using a demonstrated rational process, reaches a conclusion that a reasonable judge could reach." Id.

I. Potential Forfeiture

¶9 S.Z.'s argument for reversing the grant of summary judgment is the following: the CHIPS orders denying visitation to S.Z. did not generally provide a sufficient "mechanism for reinstating visits" and, more specifically, compliance with one of the conditions for reinstatement "appears virtually impossible for S.Z." Before addressing the merits of this argument further below, I note that it was not presented to the circuit court, but I explain why I decline to reject S.Z.'s argument on that basis. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis.2d 486, 611 N.W.2d 727 (arguments not preserved in the circuit court generally not considered on appeal, which can include even alleged constitutional errors); Village of Trempealeau v. Mikrut, 2004 WI 79, ¶17, 273 Wis.2d 76, 681 N.W.2d 190 (forfeiture of unpreserved arguments can be disregarded and merits addressed "in exceptional cases").

¶10 The following is additional pertinent background. Simultaneously with its commencement of this action in July 2021 the County moved for summary judgment. As part of the motion, the County submitted the affidavits of the social worker assigned to work with the children, which included the following averments:

• In October 2019, as part of the underlying CHIPS proceedings for the children, the circuit court entered dispositional orders placing the children outside of C.Z.'s home.
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• On May 22, 2020, the court granted the County's request to revise the dispositional orders to deny C.Z. visitation with the children and setting "conditions and services for [the parents] to comply with" before they could "resume visitation."
• The May 2020 order denying visitation remained the order of the court as of the time of the County's filing in this action, and the order had not been modified to allow visitation. That is, more than one year had passed since the order denying visitation had been issued without its being modified to allow visitation.

Attached to the affidavits were copies of the pertinent circuit court orders, including the list of conditions that S.Z. would have to satisfy before he would be permitted renewed visitation with the children.

¶11 Both C.Z. and S.Z. submitted affidavits in response to the County's motion. S.Z. averred that she had "made a good faith effort to comply with the conditions set forth in the order of May 22, 2020, but failure of the [County's] personnel to provide proper assistance was the cause of such failure." C.Z.'s affidavit made several averments that could be reasonably construed to allege that: (1) he complied with certain conditions of reinstating visitation (e.g., that he "attended therapy"); (2) before potential grounds for the termination of parental rights had arisen, County personnel had already committed themselves to the predetermined outcome that the children should be adopted into new families (e.g., the social worker allegedly told C.Z. that "she was not going to give the kids back"); and relatedly, (3) C.Z. was at times unable to reach County personnel by phone or reach the children for scheduled phone calls.

¶12 The circuit court observed that, when viewed in the light most favorable to S.Z., the averments in the affidavits of S.Z. and C.Z. "would seem to raise … factual issues" regarding whether S.Z. "made good faith efforts to comply

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with the conditions imposed in the [o]rder denying placement or visitation but [she was] stymied from doing so by the [County]." However, the court also expressed the view that it was prohibited under Steven V. from inquiring into how the requirements of Wis.Stat. § 48.415(4)(b) had been met-that is, prohibited from inquiring into the reasons S.Z. had been unable to obtain modifications of the orders denying visitation. See Steven V., 271 Wis.2d 1, ¶48 n.8 ("denial of physical placement and visitation by court order for more than one year pursuant to … § 48.415(4)[ ]does not provide for a defense based upon a parent's explanation for noncompliance with the court order"). Further, the court observed that neither parent argued that the orders denying visitation "operated to restrict or restrain the parent[s'] right to seek modification or reinstate their visitation" nor did the parents argue that they were unaware that they had the right to pursue modification "...

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