Racine Cnty. Dep't of Human Servs. v. Renee D. (In re Termination Parental Rights to Malachi D.)
| Decision Date | 20 February 2013 |
| Docket Number | No. 2012AP1974.,2012AP1974. |
| Citation | 2013 WI App 41,346 Wis.2d 733,828 N.W.2d 594 |
| Parties | In re the termination of parental rights to MALACHI D., a person under the age of 18. Racine County Department of Human Services, Petitioner–Respondent, v. Renee D., Respondent–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from orders of the circuit court for Racine County: Allan B. Torhorst and Charles H. Constantine, Judges. Affirmed.
Renee D. appeals from the involuntary termination of her parental rights (TPR) to her son Malachi. Renee argues that the statute subsection allowing involuntary TPR based on child abuse, Wis. Stat. § 48.415(5), is unconstitutionally vague both on its face and as applied to her, and that it violates due process by creating an irrebuttable presumption that she will abuse one child based on her history of abuse of another. Renee also argues that the circuit court erred in granting summary judgment against her because there existed genuine issues of material fact. The statute is constitutional, and the court did not err in granting summary judgment. We affirm.
¶ 2 The Racine County Department of Human Services filed a petition to terminate Renee's parental rights to her son Malachi, alleging two grounds: child abuse and failure to assume parental responsibility. At her initial appearances, Renee, personally, generally contested the facts alleged and requested a jury trial. The Department filed a motion for summary judgment, which Renee opposed. The circuit court granted summary judgment in part, finding that Renee's undisputed 2001 felony child abuse conviction provided the basis for summary judgment of unfitness on child abuse grounds, but finding that material facts were in dispute on the failure to assume ground. A dispositional hearing was held on March 1, 2012, at which the circuit court found that TPR was in the best interests of Malachi and terminated Renee's parental rights. In a postdisposition motion, Renee sought to vacate the termination order, arguing that the child abuse ground for TPR is unconstitutional and that the circuit court had erred in granting summary judgment. The circuit court denied the motion, and Renee appeals.
¶ 3 Renee was convicted of felony child abuse in 2001 for behavior toward her older son Desmond. Renee was sentenced to five years in prison followed by five years extended supervision. Renee voluntarily terminated her parental rights to Desmond in 2007.
¶ 4 Malachi was born to Renee on February 29, 2008. The Department became involved with Malachi in September 2008, when Renee's cousin took Malachi to a day-care facility, indicating that she could no longer care for Malachi because Renee was “harassing her and threatening to call the police.” The cousin had been taking care of Malachi while Renee was in jail. The Department's investigator contacted Renee in jail and asked her for contact information for other relatives who could possibly take care of Malachi, but Renee was unable or unwilling to provide the names of any potential caregivers. Malachi's father and his family were unable to care for Malachi, and, on October 29, 2008, Malachi was found to be a child in need of protection or services (CHIPS). On September 9, 2009, the circuit court extended the CHIPS order for one year. The Department filed the TPR petition on May 25, 2010.
¶ 5 The Department alleged two grounds for TPR: child abuse, under Wis. Stat. § 48.415(5), and failure to assume parental responsibility, under § 48.415(6). The Department filed for summary judgment on both grounds, and, as indicated above, the circuit granted summary judgment on the child abuse ground. It is on this unfitness ground that Renee's parental rights were terminated. She challenges the TPR on two grounds: that § 48.415(5) is unconstitutional and that the circuit court erred in granting summary judgment. We set forth the statute, then address each argument in turn.
¶ 6 The procedure to terminate parental rights involves two steps. Tammy W.-G. v. Jacob T., 2011 WI 30, ¶ 18, 333 Wis.2d 273, 797 N.W.2d 854. First, there is a fact-finding hearing at which the petitioner must prove the existence of one or more of the ten grounds listed in Wis. Stat. § 48.415. Tammy W.-G., 333 Wis.2d 273, ¶ 18, 797 N.W.2d 854. If the court or the jury finds grounds for termination, the court “shall find the parent unfit.” Id. The issue at this first step is whether statutory grounds for unfitness exist, not the best interest of this child. Id. At the second phase, the dispositional hearing, the court determines if TPR is in the best interest of the child. Id., ¶ 19.
¶ 7 The grounds for involuntary termination of parental rights are set forth in Wis. Stat. § 48.415. Subsection (5) gives the standard for termination due to child abuse.
(5)Child Abuse. Child abuse, which shall be established by proving that the parent has exhibited a pattern of physically or sexually abusive behavior which is a substantial threat to the health of the child who is the subject of the petition and proving either of the following:
(a) That the parent has caused death or injury to a child or children resulting in a felony conviction.
Thus, § 48.415(5) allows the circuit court to find grounds for TPR based on child abuse if two elements are proved. First, it must be established that the parent has shown a pattern of physical or sexual abuse that is a substantial threat to the health of the child who is the subject of the petition. Second, it must be proved either (a) that the parent has caused death or injury to a child resulting in a felony conviction or (b) that the child has been removed from the parent's home pursuant to a CHIPS court order. Sec. 48.415(5). In Renee's case, the subsection (5) ground was based on her previous child abuse conviction, so we are looking at (a).
Constitutionality ofWis. Stat. § 48.415(5)
¶ 8 Renee's first constitutional challenge to Wis. Stat. § 48.415(5)(a) is that it is void for vagueness in violation of the due process protections in the state and federal constitutions. The constitutionality of a statute presents a question of law that we review de novo. State v. Pittman, 174 Wis.2d 255, 276, 496 N.W.2d 74 (1993). Legislative enactments are presumed to be constitutional, and the challenger must prove beyond a reasonable doubt that the statute is invalid. Id.
¶ 9 As a threshold matter, the Department argues that Renee waived her constitutional challenge because she did not raise it before the circuit court until the case had been before the court of appeals and then remanded to the circuit court, at Renee's request, for a posttermination motion hearing. Waiver and forfeiture are rules of judicial administration. See Preston v. Meriter Hosp., Inc., 2005 WI 122, ¶ 16, 284 Wis.2d 264, 700 N.W.2d 158 (waiver); Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 45 n. 21, 327 Wis.2d 572, 786 N.W.2d 177 (forfeiture). Renee raised her constitutional challenge in the circuit court, albeit in a posttermination motion; we will not apply waiver.2
¶ 10 A statute is unconstitutionally vague only if it fails to give fair notice of the conduct prohibited and fails to provide an objective standard for enforcement. State v. Ruesch, 214 Wis.2d 548, 561, 571 N.W.2d 898 (Ct.App.1997). Only a fair degree of definiteness is required. Rhonda R.D. v. Franklin R.D., 191 Wis.2d 680, 711, 530 N.W.2d 34 (Ct.App.1995). To be valid, the statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly. Elections Bd. v. Wisconsin Mfrs. & Commerce, 227 Wis.2d 650, 676–77, 597 N.W.2d 721 (1999).
¶ 11 Renee argues that the statute is “void because it fails to provide reasonable notice to parents, and non-arbitrary standards for adjudication to judges and jurors, concerning the essential determination whether a parent has exhibited ‘a pattern of ... abusive behavior which is a substantial threat to the health of the child’ who is the subject of the petition.” Renee elaborates that first, “pattern” does not give guidance as to how many instances of abuse are necessary. Second, Renee argues that “substantial” is an elastic term that allows for subjective, “ad hoc” choices by jurors. Third, Renee points out that the statute does not have a requirement of intent, which Renee claims “exacerbates the problem.” Finally, as to this constitutional challenge, Renee argues that “threat to the health” “invites mere speculation into possibilities.”
¶ 12 Renee's argument does not undermine the strong presumption of constitutionality. A “pattern” is more than one instance. See Monroe Cnty. v. Jennifer V., 200 Wis.2d 678, 684, 548 N.W.2d 837 (Ct.App.1996). Judges and jurors are routinely asked to apply the qualifier “substantial.” See, e.g.,Wis JI—Civil 1500 (regarding cause, was negligence a substantial factor in producing injury); Wis JI—Criminal 2652 (for criminal negligence for reckless driving causing bodily harm, actor should realize conduct creates substantial risk of death or great bodily harm to another). We do not find the lack of a scienter requirement troublesome; even criminal statutes are not required to include a scienter element. SeeWis. Stat. § 939.23 (). Furthermore, we note that the underlying criminal act—child abuse—is an intentional crime. SeeWis. Stat. § 948.03(2)(b). “Threat to the health” is a phrase that a person, judge or juror of ordinary intelligence can understand. Additionally, the jury instructions clarify that “health” includes physical, emotional, or mental health. Wis JI—Children 340. While the statute does allow for variance in cases, it is not so ill-defined as to defy discernment. See State v. Barman, 183...
To continue reading
Request your trial