TAMMIE JC v. ROBERT TR

• Decision Date: 20 June 2003
• Docket Number: No. 01-2787.,01-2787.
• Citation: 2003 WI 61,262 Wis.2d 217,663 N.W.2d 734
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS TO THOMAS J.R., a Person Under the Age of 18: TAMMIE J.C., Petitioner-Respondent-Petitioner, v. ROBERT T.R., Respondent-Appellant.
• Court: Wisconsin Supreme Court

262 Wis.2d 217

2003 WI 61

663 N.W.2d 734

IN RE the TERMINATION OF PARENTAL RIGHTS TO THOMAS J.R., a Person Under the Age of 18:

TAMMIE J.C., Petitioner-Respondent-Petitioner, v. ROBERT T.R., Respondent-Appellant.

No. 01-2787.

Supreme Court of Wisconsin.

Oral argument September 11, 2002.

Decided June 20, 2003.

For the respondent-appellant, there was a brief and oral argument by Duane M. Jorgenson, Darlington.

An amicus curiae brief was filed by Richard J. Auerbach, Auerbach & Porter, and Gretchen Viney, Madison, on behalf of the Dane County Guardian ad Litem Project; and Carol M. Gapen, Theresa L. Roetter and Stafford, Rosenbaum, LLP, Madison, on behalf of American Academy of Adoption Attorneys.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, Tammie J.C., seeks review of an unpublished decision of the court of appeals reversing an order that terminated the parental rights of the respondent, Robert T.R.¹ The court of appeals determined that a court could terminate a person's parental rights only if it had personal jurisdiction over the person, and that the court's exercise of jurisdiction over Robert in this case had no basis because Robert, a resident of Arizona, lacked minimum contacts with Wisconsin.

¶ 2. We recognize that personal jurisdiction through minimum contacts is generally necessary for a judgment to bind any out-of-state person. We conclude, however, that the status exception to the general personal jurisdiction requirements, as employed in the Uniform Child Custody Jurisdiction Act (UCCJA), provides a basis for the exercise of jurisdiction in a child custody case. Such an exercise of jurisdiction is consistent with notions of fair play and substantial justice. We also conclude that Wis. Stat. § 801.05(11), which references the UCCJA, provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard. Accordingly, we reverse the court of appeals and remand the case for a determination on the remaining issues previously raised in that court, but not briefed or argued here.

I

¶ 3. Tammie and Robert were married in Wyoming in 1987.² Thomas J.R. was born in Wyoming in 1988, during the marriage. Tammie's daughter from a previous marriage (Robert's step-daughter) lived with the family throughout their marriage. The family moved to Arizona in 1991. In 1992, after Robert was accused of sexually assaulting Tammie's daughter, Tammie moved back to Wyoming with her daughter and Thomas, leaving Robert in Arizona. Robert accepted a plea bargain related to the sexual assault charges, and he was sentenced to a ten-year prison term in Arizona.

¶ 4. Subsequently, Robert filed for divorce. The Arizona court awarded sole custody of Thomas J.R. to Tammie and denied Robert all visitation rights. It found such visitation would seriously endanger Thomas' physical, mental, and emotional health. ¶ 5. Tammie moved to Nebraska with Thomas and her daughter in 1993, and then in 1996, they moved to Wisconsin. Tammie did not disclose either move to Robert, but he was aware of Tammie's general location while she was living in Nebraska.

¶ 6. Robert did not contact Thomas during his time in prison because Thomas lived with Robert's step-daughter, the victim of the sexual assault. Arizona law prohibited anyone convicted of sexual assault from contacting any person at the address belonging to the sexual assault victim. Robert began to send mail to Thomas after this rule was changed in 1998, but the Arizona Department of Corrections curtailed his mailings after Tammie complained about the correspondence.

¶ 7. Tammie remarried her daughter's biological father in Wisconsin, and on January 13, 2000, she filed a petition in Lafayette County Circuit Court to terminate Robert's parental rights. At the same time, Tammie's husband petitioned the court to adopt Thomas following termination of Robert's parental rights.

¶ 8. The circuit court issued a summons notifying Robert of the pending termination action and ordering him to appear on February 2, 2000. The court continued the matter to February 28, because of difficulties serving Robert, who was in prison in Arizona. Robert was served on February 14, 2000. On March 8, Robert moved, through his Wisconsin counsel, for an order requiring Tammie to pay his expenses in appearing personally at the termination trial, or alternatively, for a delay in the proceedings until he was released from prison. The court found good cause to delay the trial, and noting that Robert was to be released from prison on August 28, 2000, it set the matter for a jury trial on September 19, 20, and 21, 2000. ¶ 9. Robert moved to dismiss, asserting that Wisconsin lacked personal jurisdiction over him, and that he had not received required statutory notice that the child custody decree in Arizona could lead to termination of parental rights in Wisconsin. Robert claimed that the petition for termination did not afford him due process. The circuit court denied the motion. Robert moved for reconsideration after the case was transferred to a different judge, but the successor judge denied the motion.

¶ 10. Before issuing a final ruling in the termination of parental rights proceeding, the circuit court afforded the parties an opportunity to seek resolution of the jurisdictional question in the Arizona courts. Tammie filed a motion requesting that the Arizona court decline jurisdiction. Robert filed a separate motion to modify visitation, asking the Arizona court to grant him "reasonable periods of visitation with his son." Pointing to A.R.S. § 8-532, an Arizona statute requiring that a child at issue in a termination proceeding be present in the state, the Pima County Juvenile Court granted Tammie's motion, declining to exercise jurisdiction over an action to terminate Robert's parental rights.³

¶ 11. The circuit court in Wisconsin then determined that termination would be in the best interest of the child in this case and terminated Robert's parental rights on the ground of "continuing denial of periods of physical placement and visitation," under Wis. Stat. § 48.415(4) (1999-2000).⁴ ¶ 12. Robert appealed the order, again asserting that the circuit court lacked personal jurisdiction over him to terminate his parental rights and that he had not received the proper notice that the Arizona child custody decree could lead to termination in Wisconsin. The court of appeals determined that a parent must be provided with fundamentally fair procedures, including an adequate basis for exercising personal jurisdiction, in any action to terminate parental rights. Because it concluded that Wisconsin did not have personal jurisdiction over Robert, the court reversed the termination order.

II

¶ 13. This case presents us with an issue involving the interpretation and application of the jurisdictional provisions of the UCCJA and Wisconsin's jurisdiction statutes, in the context of an action to terminate the parental rights of a person who is not a Wisconsin resident and does not have minimum contacts with the state. A circuit court's determinations of whether statutory and constitutional bases exist for jurisdiction over a non-resident in a termination of parental rights proceeding present questions of law, subject to independent appellate review. In the Interest of A.E.H., 161 Wis. 2d 277, 299, 468 N.W.2d 190 (1991); State ex rel. N.R.Z. v. G.L.C., 152 Wis. 2d 97, 103, 447 N.W.2d 533, 535 (1989).

¶ 14. In addressing whether the court in this case had jurisdiction to terminate Robert's parental rights, we first discuss the general requirement of minimum contacts to establish personal jurisdiction, and the exception to the requirement for cases involving determinations of status under the UCCJA. We then consider Wis. Stat. § 801.05(11) which provides that child custody determinations are binding on persons who receive notice under § 822.05 and are afforded an opportunity to be heard. Finally, we address the requirement that an exercise of jurisdiction satisfies the due process standard of fair play and substantial justice, and assess the exercise of jurisdiction.

III

A

¶ 15. The court of appeals in this case determined that the termination of parental rights order issued by the circuit court was not binding on Robert because the circuit court lacked personal jurisdiction over him. In essence, that determination left Thomas J.R. in a jurisdictional limbo. Because the Arizona court concluded that it could not exercise jurisdiction, the court of appeals' determination left Thomas without any forum to address the termination of parental rights and accompanying adoption actions.

¶ 16. We recognize that a court generally must have some type of territorial jurisdiction over a person for a judgment rendered by a court to bind the person. Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979). Territorial jurisdiction is typically either in personam or in rem. Pennoyer v. Neff, 95 U.S. 714, 724 (1877). Historically, in personam judgments were binding on a person only if the person was physically present in the state issuing the judgment. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citing Pennoyer, 95 U.S. at 733).

¶ 17. In Pennoyer, the Court determined that: "the tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its limits." Pennoyer, 95 U.S. at 731. The Court also determined in Pennoyer that a judgment of a court lacking personal jurisdiction violated the Due Process Clause of the Fourteenth Amendment. "The Pennoyer rules generally favored nonresident defendants by making them harder to sue." Shaffer v. Heitner, 433 U.S. 186, 200 (1977).

¶ 18. More recent Supreme Court opinions have dramatically limited the requirements for personal jurisdiction. In International Shoe, the Court held that...