Steven vv KELLEY
| Decision Date | 28 April 2004 |
| Docket Number | No. 02-2860.,02-2860. |
| Citation | 2004 WI 47,271 Wis.2d 1,678 N.W.2d 856 |
| Parties | IN RE the TERMINATION OF PARENTAL RIGHTS TO ALEXANDER V., a Person Under the Age of 18: STEVEN V., Petitioner-Respondent, v. KELLEY H., Respondent-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the respondent-appellant-petitioner there were briefs and oral argument by Philip J. Brehm, Janesville.
For the petitioner-respondent there was a brief and oral argument by Duane M. Jorgenson, Darlington.
A guardian ad litem brief was filed by Douglas J. Heenan and Block, Scott & Heenan, LLC, Platteville, and oral argument by Douglas J. Heenan.
An amicus curiae brief was filed by David Wambach, E. Michael McCann, Mary Sowinski, and Thomas Binger, on behalf of Wisconsin District Attorney's Association.
? 1. DIANE S. SYKES, J.
This termination of parental rights (TPR) case presents two issues for our review: 1) whether partial summary judgment pursuant to Wis. Stat. ? 802.08 (2001-02)1 is available in the first phase of a TPR case, at which parental unfitness is adjudicated; and 2) whether the circuit court is required at the initial TPR hearing to advise the nonpetitioning party of his or her right under Wis. Stat. ? 48.422(5) to a continuance to consult with counsel on the issue of judicial substitution.
? 2. Alexander V.'s father filed a petition to terminate Kelley H.'s parental rights to Alexander, alleging as grounds that Kelley had been denied physical placement and visitation by court order for more than one year pursuant to Wis. Stat. ? 48.415(4). Kelley requested a jury trial. At the fact-finding hearing the circuit court granted the guardian ad litem's motion for summary judgment on the issue of unfitness, based upon the undisputed fact that Kelley had been denied placement and visitation by a court order that had been in place, unmodified, for more than two years. After a dispositional hearing, the circuit court terminated Kelley's parental rights. The court of appeals affirmed, concluding that although the circuit court had committed two procedural errors?€”by employing summary judgment procedure and failing to advise Kelley of her statutory right to a continuance to consult with counsel about judicial substitution?€ ? the so-called "grounds" or "unfitness" phase of a TPR proceeding. Wis. Stat. ? 48.31(2). The statutory grounds for termination of parental rights are specified in Wis. Stat. ? 48.415, and several of these may be proved by official documentary evidence. See, e.g., Wis. Stat. ? 48.415(1m), (4), (9), and (9m).
? 4. By statute and as a matter of procedural due process, parental unfitness must be proved by clear and convincing evidence. Wis. Stat. ? 48.31(1); Santosky v. Kramer, 455 U.S. 745 (1982). The jury trial right, however, is entirely statutory, not mandated by constitutional due process, and is therefore generally subject to the provisions of the civil procedure code, including the summary judgment statute, Wis. Stat. ? 802.08, unless the TPR statutes provide otherwise. See Wis. Stat. ? 801.01(2). The TPR statutes do not provide otherwise, either explicitly or implicitly.
? 5. We conclude that partial summary judgment in the unfitness phase of a TPR case is available where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. ?? 48.415 and 48.31 have been met. An order granting partial summary judgment on the issue of parental unfitness where there are no facts in dispute and the applicable legal standards have been satisfied does not violate the parent's statutory right to a jury trial under Wis. Stat. ?? 48.422(4) and 48.31(2), or the parent's constitutional right to procedural due process.
? 6. Accordingly, partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. ? 48.415, and, taking into consideration the heightened burden of proof specified in Wis. Stat. ? 48.31(1) and required by due process, the moving party is entitled to judgment as a matter of law. We overrule Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), to the extent that it outright prohibited summary judgment in TPR proceedings. The circuit court's use of summary judgment procedure was not error.
? 7. We also withdraw the language in M. W. and I.W. v. Monroe County Dep't of Human Servs., 116 Wis. 2d 432, 342 N.W.2d 410 (1984), that purported to articulate a requirement that the circuit court advise any nonpetitioning party in a TPR case of his or her right under Wis. Stat. ? 48.422(5) to a continuance to consult with counsel about judicial substitution. M.W. and I.W. described too broadly the statutory duties of the circuit court at the initial TPR hearing under Wis. Stat. ? 48.422(1). In fact, the statute does not require the circuit court to advise nonpetitioning parties of the statutory right to a continuance to consult with counsel regarding judicial substitution. The circuit court's failure to do so here was not error.
? 8. On August 8, 2001, Steven V., Alexander's father, filed a petition in Grant County Circuit Court to terminate Kelley H.'s parental rights to Alexander. As grounds for termination Steven alleged continuing court-ordered denial of physical placement and visitation for more than one year pursuant to Wis. Stat. ? 48.415(4).2 In his petition, Steven alleged that Kelley had been denied custody, placement, and visitation of Alexander by an order of the Brown County Circuit Court that had been in place and remained unmodified for more than one year.
? 9. Steven's petition did not contain the order to which it referred, but the motion for summary judgment that is the focus of this appeal did. The documentary record reflects that on May 12, 1999, in Brown County Circuit Court, the Honorable William C. Griesbach awarded Steven sole legal custody and physical placement of Alexander, and denied Kelley custody, placement, and visitation. In written "Findings of Fact, Conclusions of Law, and Judgment of Custody and Placement," filed on June 28, 1999, the circuit court found that Kelley had physically neglected Alexander and had emotionally abused him by trying to "brainwash him" into believing that his father was evil. The court also found that Kelley had attempted to arrange the murder of Steven and his wife, had absconded to California with Alexander, and had made false accusations of child abuse against Steven and his wife. The court awarded sole custody and physical placement of Alexander to Steven, and denied Kelley custody, placement, and "any and all visitation," concluding that contact between mother and child would endanger Alexander's physical and especially emotional health. The court also imposed a number of conditions that Kelley would need to satisfy before any modification of the ban on visitation would be considered.
? 10. An initial hearing on the TPR petition was held in Grant County Circuit Court on September 4, 2001, before the Honorable Robert B. VanDeHey. Kelley appeared with her attorney and requested a jury trial.
? 11. On September 17, 2001, Alexander's guardian ad litem filed a "Motion for Summary Judgment or in the Alternative Directed Verdict" in which he asserted that no genuine issue of material fact existed as to the grounds for termination alleged in the petition and that Steven was entitled to judgment as a matter of law. The motion was supported by an affidavit of the guardian ad litem recounting the procedural history of the Brown County custody proceeding, and included a copy of Judge Griesbach's June 28, 1999, order.
? 12. Kelley responded to the motion by arguing that Elizabeth W. prohibits summary judgment in TPR proceedings. Kelley conceded that directed verdicts were permissible in TPR cases, but insisted that before a directed verdict could be entered in her case, the court was required to empanel a jury to hear evidence.
? 13. On October 15, 2001, the circuit court conducted a hearing at which counsel and the court discussed the procedural issues occasioned by the guardian ad litem's motion. Ultimately, the court scheduled a fact-finding hearing for November 2, 2001, and stated that Kelley would have until October 25, 2001, to identify any facts in dispute that would necessitate a jury trial for fact-finding with respect to the TPR grounds alleged in Steven's petition.
? 14. Kelley did not respond by the October 25, 2001, deadline. At the November 2, 2001, hearing, the parties were presented with an order of the court apparently prepared and submitted sometime earlier by the guardian ad litem but dated, signed, and filed on November 2, 2001. The order memorialized what had occurred at the prior hearing, and further provided as follows:
[t]his matter will be scheduled for fact finding on November 2, 2001 at 2:30 p.m. at which time the Court will rule in favor of the Guardian ad Litem's motion for directed verdict unless Attorney Gaskell, on behalf of Kelley H., files notification to the Court on or before October 25, 2001 that a legitimate issue exists to be tried at trial.
The order also stated that the Motion for Summary Judgment or in the Alternative for Directed Verdict would be heard on October 15, 2001, that is, the date of the prior hearing, two weeks before the order was signed and entered.
? 15. Despite these incongruities, the parties agreed at the November 2 hearing that there were no facts in dispute as to the...
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