Termination of Parental Rights – Due Process Violation

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WI Court of Appeals – District III

Case Name: B.W., v. S.H.,

Case No.: 2021AP43; 2021AP44

Officials: SEIDL, J.

Focus: Termination of Parental Rights – Due Process Violation

S.H. appeals from orders entered in two cases, now consolidated on appeal, terminating his parental rights to his two children on the grounds of the continuing denial of his periods of physical placement under WIS. STAT. § 48.415(4). S.H. argues that § 48.415(4) facially violates his constitutional right to equal protection under the law. It does so, he contends, because it allows for parental rights to be terminated through a family court order without proof that such order denying the parental placement contained a warning that the parent’s rights could be terminated if that order remained unchanged, whereas proof of such a warning is required for termination under § 48.415(4) for juvenile court actions. S.H. further argues that the right of parents to have a relationship with their child is a fundamental liberty interest protected by the Fourteenth Amendment, thereby triggering strict scrutiny review that § 48.415(4) cannot survive. S.H. also contends that § 48.415(4), as applied to him, violates his right to equal protection because the underlying family court order that B.W. relied upon to obtain summary judgment in this action did not contain a notice of termination as is required in juvenile court actions.

Finally, S.H. argues that WIS. STAT. § 48.415(4), as applied to him, violates his right to substantive due process because it allowed him to be deemed an unfit parent without consideration of his poverty. S.H. argues that his indigence hampered his access to the family courts because a fee the circuit court required him to pay before he could schedule a hearing prevented consideration of his repeated attempts to regain placement of his children. We reject S.H.’s equal protection challenges, but we reverse the summary judgment on his as-applied substantive due process challenge and remand with directions.

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Derek A Hawkins is Corporate Counsel, at Salesforce.