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Supreme Court issues two TPR decisions


Hon. Diane S. Sykes

The Wisconsin Supreme Court held on April 28 that a circuit court in a termination of parental rights (TPR) proceeding may grant partial summary judgment on the issue of unfitness, and that evidence regarding a parent’s reason for failing to rebut undisputed evidence is irrelevant in the unfitness phase.

In so holding, the court overruled both Walworth County Dep’t of Human Servs. v. Elizabeth W., 189 Wis.2d 432, 525 N.W.2d 384 (Ct.App.1994), and State v. Fredrick H., 2001 WI App 141, 246 Wis.2d 215, 630 N.W.2d 734.

However, in a second case decided the same day, the court held that a parent who is a victim of incest can mount an as-applied constitutional challenge to sec. 48.415(7), which makes incestuous parenthood grounds for a finding of unfitness.

Steven V.

In the first case, Steven V., the father of Alexander V., filed a petition to terminate the parental rights of Kelley H., the mother, alleging that Kelley had been denied custody, placement, and visitation of Alexander, and that order had been in place and remained unmodified for more than one year.

Kelley did not dispute those allegations, but proffered reasons for noncompliance. However, the circuit court held such reasons irrelevant at that stage of the proceedings, and entered partial summary judgment finding unfitness. A dispositional hearing was subsequently held, after which the court concluded it was in Alexander’s best interests to terminate Kelley’s parental rights.

Kelley also argued that, at the time of her initial hearing, she should have been informed of her right to a continuance to consult with counsel regarding judicial substitution, pursuant to sec. 48.422(5).

Kelley appealed, and the court of appeals held, in a published decision, that partial summary judgment cannot be granted in a TPR proceeding, and that it was error not to inform Kelley of her right to a continuance. However, the court held both errors harmless, and affirmed. Steven V. v. Kelley H., 2003 WI App 110, 263 Wis.2d 241, 663 n.W.2d 817.

The Supreme Court accepted review and affirmed the termination of Kelley’s rights in a decision by Justice Diane S. Sykes, but disagreed with both holdings of the court of appeals on the substantive issues.

Summary Judgment

The court noted, “The code of civil procedure applies to ‘all civil actions and special proceedings’ unless a ‘different procedure is prescribed by statute or rule.’

Wis. Stat. sec. 801.01(2). Parental rights termination proceedings under Chapter 48 are civil proceedings, and this general rule of civil procedure applicability has been cited in the context of TPR cases on numerous occasions (cites omitted).”

The court acknowledged that some grounds for parental unfitness will ordinarily be too fact-intensive for summary judgment, but found it appropriate in cases provable by official documentary evidence, as in the case at bar.

The court concluded, “The availability of partial summary judgment in the grounds phase of a TPR proceeding where the entire proof of unfitness under the statute is an undisputed court record furthers the legislature’s purpose and is consistent with the general rule that the provisions of the code of civil procedure apply to all civil actions and proceedings.”

Accordingly, the court overruled Elizabeth W. and Fredrick H., which held to the contrary.


The court also held it was not error for the court to fail to inform Kelley of her right to a continuance to consult with counsel about judicial substitution.

Section 48.422 provides, in relevant part, “(1) … At the hearing on the petition to terminate parental rights the court shall determine whether any party wishes to contest the petition and inform the parties of their rights under sub. (4) and s. 48.423. …

“(4) Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall be granted a jury trial upon request if the request is made before the end of the initial hearing on the petition.

“(5) Any nonpetitioning party, including the child, shall be granted a continuance of the hearing for the purpose of consulting with an attorney on the request for a jury trial or concerning a request for the substitution of a judge.

The court found that the statutes unequivocally do not direct the court to inform parties of the right to a continuance under subsec. (5), only the rights under subsec. (4).

The court thus held there was no error, and withdrew language from its decision in M.W. and I.W. v. Monroe County Dept’s of Human Servs., 116 Wis.2d 432, 342 N.W.2d 410 (1984), which purported to impose such a requirement. Accordingly, the court affirmed.

Other Opinions

Chief Justice Shirley S. Abrahamson wrote a concurring opinion, joined by Justice Ann Walsh Bradley, agreeing that the statutory scheme permits summary judgment in such cases, but recommending that the legislature revisit the law, to permit a parent’s explanation to be considered before entry of partial summary judgment.

Abrahamson concluded that, although a parent will be able to mount a constitutional challenge in certain cases, “Mounting a constitutional challenge is not … easily accomplished. … A parent who has a legitimate explanation about why his or her conduct does not constitute unfitn
ess in fact should be heard before a circuit court declares that parent unfit.”

Justice David T. Prosser Jr. dissented, concluding both that the statutes preclude use of summary judgment in TPR proceedings, and disagreeing with the result.

Prosser wrote, “As a practical matter, this court is saying that there are no facts — including a parent’s serious illness, temporary incarceration, or involuntary absence from the jurisdiction, or a judge’s illness or death — that will ever legally excuse a failure to modify the placement/visitation order within a year after it is issued.”

Prosser added that it is insufficient to consider the parent’s explanation in the best interests phase of the proceedings, “for when the court considers the best interests of the child, the court’s decision revolves around the child, not the parent.”

What the court held

Case: Steven V. v. Kelley H., No. 02-2860; Monroe County Dep’t. of Human Services v. Kelli B., Nos. 03-0060, 03-0061, 03-0062

Issue: In a TPR proceeding, can a circuit court enter partial summary judgment, finding that the parent is unfit?

Must a court inform a parent of her right to a continuance to consult with counsel about judicial substitution?

Is incestuous parenthood grounds for termination of parental rights, when the parent is herself a victim of incest, rather than a consenting party?

Holding: Yes. Partial summary judgment is appropriate if there are no genuine issues of material fact.

No. Section 48.422(1) does not mandate such information be given by the court.

No. Substantive due process prohibits termination of parental rights when the parent is herself a crime victim.

Counsel: For Kelley H.: Philip J. Brehm, Janesville; For Steven V., Duane M. Jorgenson, Darlington; for Kelli B., Timothy Provis, Madison; for Monroe County, Kerry Sullivan-Flock, Ellen M. Thorn.

Kelli B.

In the second case, Kelli B. gave birth to three children, one when she was 17, and two after reaching 18. All were fathered by her own father, who began the incestuous relationship when Kelli was only 12.

After the birth of the third child, Kelli disclosed the relationship. The father was convicted of incest, and agreed to termination of his parental rights.

Because of unsafe and unsanitary conditions in Kelli’s home, Monroe County instituted TPR proceedings against Kelli, as well, alleging both the prior incest and inability to care for the children as grounds. Section 48.415(7) provides that incestuous parenthood is grounds for a finding of unfitness.

Kelli moved to dismiss the incestuous parenthood ground, arguing that, as the victim of incest, application of this provision violated her right to substantive due process. The circuit court disagreed, noting that it had discretion at the disposition stage not to terminate her rights if she was providing good care to the child, and the incest was not voluntary.

The County dismissed the remaining ground — that the children were in continuing need of protection. The jury found that incestuous parenthood was established, and at the dispositional hearing, the court found it in the best interests of the children to terminate Kelli’s parental rights.

Kelli appealed, and the court of appeals reversed in a published decision. Monroe County Dep’t of Human Services v. Kelli B., 2003 WI App 88, 263 Wis.2d 413, 662 N.W.2d 36, agreeing with Kelli that, as a victim, application of sec. 48.415(7) to her was unconstitutional.

The Supreme Court accepted review, and affirmed in a decision by Justice Bradley. Justice Prosser dissented, in a decision joined by Justice Jon P. Wilcox. Justice Patience D. Roggensack did not participate.

Victim Status

Applying the strict scrutiny standard, the court held that the statute, as applied to Kelli, is not narrowly tailored to advance a compelling state interest.

The court reasoned, “The reason it is not narrowly tailored is that it renders people like Kelli per se unfit solely by virtue of their status as victims. While we recognize a correlation between perpetrators of incest and unfit parents, we fail to see how being victimized by one’s parent or relative necessarily warrants the same conclusion. The fact of incestuous parenthood does not, in itself, demonstrate that victims like Kelli are unfit parents.”

The court rejected the county’s argument that the statute served the interests of deterring father-daughter incest, and protecting children from psychological harm.

The court reasoned, “The concept of deterrence presupposes that Kelli had a meaningful choice in her relationship with her father. Yet the facts here do not support this presupposition. Rather, they support our conclusion as a matter of law that she is a victim.”

In addition, the court found, “The psychological harm … stemmed from the prospect of being raised in a home in which the parents were engaged in a consensual and continuing incestuous relationship. There is no evidence that Kelli intended to subject her children to such an environment. Indeed, by reporting her father to the proper authorities, Kelli demonstrated an intent to end the incestuous relationship. As a result we determine that the statute, as applied to Kelli, does not meet the standard of strict scrutiny.”

The court suggested that the County could have prevailed on
the other statutory grounds it dismissed, but held it could not prevail solely on the grounds of incestuous parenthood.

The court also found that public policy supports its holding, citing Article I, Section 9m, of the Wisconsin Constitution protecting the rights of crime victims.

Accordingly, the court affirmed the court of appeals’ holding that termination of Kelli’s parental rights violated her right to substantive due process.

The Dissent

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Case Analysis

Justice Prosser dissented, concluding that a factual question is present whether the incest was consensual or not, calling the majority opinion, “curiously unhelpful in explaining how it believes the case should have been handled in circuit court.”

Prosser acknowledged that the majority is “probably correct” in finding that the incest was not consensual. Nevertheless, he wrote, “In this case, [the father] was never convicted of sexual assault. He was convicted of incest under Wis. Stat. sec. 948.06, an offense in which Kelli B.’s consent or non-consent was immaterial.

Thus, Kelli’s non-consent to incest was not established and remained a material issue of fact. She gave birth to three incestuous children, one of whom was conceived and born when she was 17, and two of whom were conceived and born when she was an adult. None of Kelli’s children was born under circumstances in which she was incapable of giving consent to sexual intercourse as a matter of law.”

Prosser added, “An adult biological mother’s non-consent to incest is a question of fact. When she puts the constitutionality of the statute at stake, the adult mother has the burden of proving this pivotal fact beyond a reasonable doubt. Is this element established at the fact-finding trial or at the dispositional hearing? I believe it should be established at the fact-finding trial.”

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David Ziemer can be reached by email.

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