Dane County Department of Human Services v. Ponn P.

2005 WI 32, 279 Wis. 2d 169

• Court: Wisconsin Supreme Court
• Decided: March 23, 2005
• Docket: 03-2440 through 03-2446
• Status: Published

Opinions

PATIENCE DRAKE ROGGENSACK, J.

¶ 1. Because we conclude that EE's parental rights were terminated by use of a statutory scheme that requires a showing of unfitness before termination of parental rights can occur, that such a showing was made and that EE did not contest the validity of the order that formed the basis for the State's petition, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. This case arises out of a petition by Dane County Department of Human Services (DCDHS) to terminate the parental rights of EE to seven minor children, Ericka E, Diana E, Channa E, Rattanck E, Dara E, Rothana E, and Dera E (collectively "the children"), and an order for termination, the Honorable Daniel R. Moeser, presiding.¹ The children currently range in age from 17 to 6.

¶ 3. County human services agencies first became involved with the family in 1988, based on allegations of physical abuse of the children in Rock County. In 1990, Rock County took custody of the children and placed them in foster care. Visitation was suspended in October 1991, and EE did not have any contact with his children between October 1991 and October 1992. The children were later returned to their parents' home, against the recommendation of Rock County Human Services.

¶ 4. The family moved to Madison in February 1994. DCDHS became involved in April 1994. In March 2001, one of the children disclosed that EE had sexually assaulted her. DCDHS subsequently substantiated reports that EE had sexually abused one of the children and that both parents had physically abused and neglected all of the children. EE was arrested, and the children were placed in foster care on March 21, 2001.

¶ 5. The children were determined to be in need of protection or services (CHIPS) on July 18, 2001. On August 12, 2002, DCDHS filed a petition for termination of parental rights. The petition alleged that grounds existed for involuntary termination of EE's parental rights under Wis. Stat. § 48.415(1), (2) and (6) (2001-02)² based on abandonment, continuing need of protection or services, and failure to assume parental responsibility, respectively.

¶ 6. In the meantime, EE pled guilty to felony child abuse and was in prison until November 12, 2002. Upon release, he lived in a halfway house for about three months, and then he was taken into custody by federal immigration authorities.

¶ 7. On March 4, 2003, DCDHS filed an amendment to its petition for termination of parental rights, restating the ground for involuntary termination stated in Wis. Stat. § 48.415(2), "Continuing need of protection or services," and adding § 48.415(4), "Continuing denial of periods of physical placement or visitation." Regarding the latter ground, DCDHS made two allegations. First, it alleged that EE was denied visitation with the children, pursuant to a February 27, 2002 Dane County Circuit Court order that contained the notice required by Wis. Stat. § 48.356(2). Second, DCDHS alleged, "As of February 28, [2]003, at least one year elapsed since the order denying visitation. The court has not subsequently modified its order so as to permit visitation."

¶ 8. On April 16, 2003, EE denied the allegations and requested a jury trial. However, on June 2, 2003, EE entered a no contest plea to the DCDHS allegations establishing grounds for termination of parental rights under Wis. Stat. § 48.415(4) and waived his right to a trial. EE stipulated that there was a factual basis for his plea. The court accepted his plea and stated that it would place in the record the earlier court orders and their underlying factual findings denying visitation. They would provide a factual basis for the ground pled to by EE Only one order, the one signed October 31, 2002 from an August 12, 2002 hearing, is found in the record with EE's signed no contest plea and waiver statement.

¶ 9. The October 31, 2002 order, which revised and extended a prior dispositional order, required that the parents have no contact, either direct or indirect, with the children and denied the parents visitation. It set out in detail the conditions in EE's home that required no contact by the parents. For example, it explained that the children had been removed from their parents' home because "[rjeports of physical and sexual abuse of the children by both parents" had been substantiated and reports of "severe neglect of the children by both parents" had also been substantiated. The order that formed the factual basis for the plea to Wis. Stat. § 48.415(4) also established that "[n]o known services could ensure the safety of the children in the parental home."

¶ 10. The October 31, 2002 order also established that the following conditions had to be met before the parents could be granted visitation:

A. Each parent must participate in individual therapy until such time that the children's therapists, in consultation with the parent's therapists, believe[] that the children can be physically and emotionally safe with the parent in any setting for visitation;

B. Each parent must demonstrate a 3 month period of sobriety, as determined by the Court, and submit all requested samples for urinalysis. Failure to submit a sample for urinalysis shall be considered the same as a test result indicating the presence of controlled substances or alcohol in the parent's urine;

C. Each parent must sign each and every consent for release of information that is requested by the assigned social worker;

D. Each parent must not be incarcerated.

¶ 11. On June 10, 2003, the court held a disposi-tional hearing to determine whether the parents' parental rights should be terminated. The court heard testimony from a DCDHS social worker, who had prepared a report for the court, and from EE The court then adopted the facts and conclusions of the social worker's report, which detailed the following: the parents' mental health and substance abuse issues; the extreme physical abuse, sexual abuse, and neglect of the children; the children's fear of their parents, including their legitimate fear that their father would kill them; the children's desire never to return to their parents' home; the health, emotional and behavioral problems the children continue to experience; the services offered and provided to the parents; and the children's continuing need for foster care placement, despite the intensive provision of services.

¶ 12. The court noted that the children had been subject to "egregious" physical, mental and sexual abuse and that DCDHS had provided services to the parents and despite those services, conditions had not been met to return the children to their parental home. The court also noted that the children had been separated from both parents for the prior 26 or 27 months. The court explained that termination of parental rights was in the best interests of the children, six of whom were likely to be adopted and the eldest of whom would be living safely with a guardian. The court stated that severing the children's relationships with their parents would be beneficial to the . children and that the children had strong relationships with caregivers in their current placements. In addition, the court explained that DCDHS had made reasonable, even extraordinary, efforts to prevent removal. The court found the parents unfit pursuant to Wis. Stat. § 48.424(4) and entered an order terminating parental rights to all the children.

¶ 13. EE appealed, and the court of appeals affirmed. EE then filed a petition for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶ 14. Whether a statute is constitutional presents a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328.

B. Facial Constitutional Challenge

¶ 15. EE raises a substantive due process challenge³ to Wis. Stat. § 48.424(4) because that statute provides that a finding under Wis. Stat. § 48.415(4) is sufficient to prove that a parent is unfit. Such a challenge may be raised based on the assertion that the statute is unconstitutional as applied, see Monroe County Department of Human Services v. Kelli B., 2004 WI 48, ¶ 1, 271 Wis. 2d 51, 678 N.W.2d 831, or that the statute is facially unconstitutional, see State v. Rachel, 2002 WI 81, ¶ 1, 254 Wis. 2d 215, 647 N.W.2d 762. Here, EE makes a facial challenge, but not an as-applied challenge. He contends that the statute is an invalid rule because it is so sweeping that it may be used to terminate parental rights without a finding of parental unfitness, as is required by Stanley v. Illinois, 405 U.S. 645 (1972).

¶ 16. Generally, a challenged statute is presumed to be constitutional. Cole, 264 Wis. 2d 520, ¶ 11; Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 20, 580 N.W.2d 156 (1998); State v. Konrath, 218 Wis. 2d 290, 302, 577 N.W.2d 601 (1998). This presumption is based on our respect for a co-equal branch of government and is meant to promote due deference to legislative acts. Cole, 264 Wis. 2d 520, ¶ 18. "[E]very presumption must be indulged to sustain the law." Jackson v. Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602 (1998); accord Cole, 264 Wis. 2d 520, ¶ 11.

¶ 17. The court must resolve any doubt about the constitutionality of a statute in favor of upholding its constitutionality. Kelli B., 271 Wis. 2d 51, ¶ 16; Cole, 264 Wis. 2d 520, ¶ 11. Further, " '[g]iven a choice of reasonable interpretations of a statute, this court must select the construction which results in constitutionality.' " American Family Mut. Ins. Co. v. Wisconsin Dep't of Revenue, 222 Wis. 2d 650, 667, 586 N.W.2d 872 (1998) (quoting State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 526, 261 N.W.2d 434 (1978)).

¶ 18. A party challenging a statute's constitutionality bears a heavy burden to overcome the presumption of constitutionality. Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 10, 236 Wis. 2d 113, 613 N.W.2d 557. Therefore, it is insufficient for the party challenging the statute to establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Cole, 264 Wis. 2d 520, ¶ 11; Jackson, 218 Wis. 2d at 853. Instead, a party challenging a statute's constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. Cole, 264 Wis. 2d 520, ¶ 11; Jackson, 218 Wis. 2d at 853; Konrath, 218 Wis. 2d at 302. While this language implies the eviden-tiary burden of proof most commonly used for factual determinations in a criminal case, in this context, the phrase, "beyond a reasonable doubt," establishes the force or conviction with which a court must conclude, as a matter of law, that a statute is unconstitutional before the statute or its application can be set aside. See Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, ¶ 4 n.3, 240 Wis. 2d 559, 623 N.W.2d 776.

C. Substantive Due Process

¶ 19. EE's constitutional challenge to Wis. Stat. § 48.415(4) is based on substantive due process.⁴ The right to substantive due process addresses "the content of what government may do to people under the guise of the law." Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995). It protects against governmental action that either "shocks the conscience ... or interferes with rights implicit in the concept of ordered liberty." State v. Jorgensen, 2003 WI 105, ¶ 33, 264 Wis. 2d 157, 667 N.W.2d 318 (quotation omitted); see also State v. Laxton, 2002 WI 82, ¶ 10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784. The right of substantive due process protects against a state act that is arbitrary, wrong or oppressive, regardless of whether the procedures applied to implement the action were fair. Kelli B., 271 Wis. 2d 51, ¶ 19 (citation omitted).

¶ 20. The threshold inquiry here is whether EE has a fundamental liberty interest at stake. Id., ¶ 20; see Dowhower, 236 Wis. 2d 113, ¶ 14. DCDHS does not contest EE's assertion that he has a fundamental liberty interest in parenting his children. Therefore, any statute that impinges on that right must withstand strict scrutiny. Kelli B., 271 Wis. 2d 51, ¶ 24. In order to withstand strict scrutiny, a statute must be narrowly tailored to meet a compelling state interest. Id., ¶ 25. Here, the compelling state interest is to protect children from unfit parents. Id. Accordingly, the statutory scheme at issue must be narrowly tailored to advance the State's interest in protecting children from unfit parents. See id., ¶ 17; Winnebago County Dep't of Soc. Servs. v. Darrell A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995).

¶ 21. The legislature has explained that this compelling state interest includes a temporal component. For example, in explaining its legislative purposes for enacting the Children's Code, of which Wis. Stat. § 48.415(4) is a part, the legislature provided that:

[t]he courts and agencies responsible for child welfare should... recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.

Wis. Stat. § 48.01(l)(a) (emphasis added). The legislature further explained that one of the Children's Code's purposes is "[t]o promote the adoption of children into safe and stable families rather than allowing children to remain in the impermanence of foster ... care." Wis. Stat. § 48.01(l)(gg).

D. Narrowly Tailored Statutory Scheme

¶ 22. This case requires us to examine Wis. Stat. § 48.424(4), which provides that a finding under Wis. Stat. § 48.415(4) is sufficient to prove a parent is unfit.⁵ Because findings under § 48.415(4) are not possible without significant earlier findings, our examination must focus more broadly than simply on the specifically challenged statutes. Accordingly, we review the underlying statutory scheme, as well.

¶ 23. We begin where EE has, with the requirements of Wis. Stat. § 48.415(4), which provides that a "[continual] denial of periods of physical placement or visitation" is a ground for terminating parental rights. A finding under § 48.415(4) requires that all of the following must he proved:

(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2)..

(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

Wis. Stat. § 48.415(4).

¶ 24. Having explained above that Wis. Stat. § 48.415(4) serves a compelling state interest, we next determine whether § 48.415(4) is narrowly tailored to advance this interest. EE asserts that § 48.415(4) violates substantive due process because "it does not require any evidence of parental unfitness." It is his contention that no-contact orders denying physical placement or visitation, such as have been in effect here, are based on the "best interest of the child," pursuant to Wis. Stat. § 48.355(3), rather than on a finding that the parent is unfit. Therefore, he contends that because these orders are the sole basis for a finding that grounds exist for terminating his parental rights pursuant to § 48.415(4), the statute is not narrowly tailored to meet a compelling state interest and violates his substantive due process right.

¶ 25. At oral argument, EE also argued that Wis. Stat. § 48.415(4) should require the court to make a finding as to the reasons a parent failed to have the order modified during the one year, or more, when it has been in effect. However, § 48.415(4) is not facially invalid on this basis because we do not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. However, EE pled no contest to the ground asserted to terminate his parental rights, and in so doing, he relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children. Accordingly, we do not reach the question of whether an as-applied challenge to the validity of a § 48.415(4) order will lie.⁶

¶ 26. Further, in regard to the statutory scheme being narrowly tailored, DCDHS and the amicus curiae argue that there are required steps that must be taken before reaching the application ofWis. Stat. § 48.415(4) in a termination of parental rights case and those steps form the foundation for the ultimate finding in subsection (4). They cite the following step-by-step process: (1) there is an initial decision to hold a child in governmental custody; (2) if the child is held in custody, then there must be a factual determination that the child is in need of protection or services before the next step will be reached; (3) if a child is found in need of protection or services, then the decision about whether to place the child outside the parental home is made; (4) if the child is placed outside the home, only after finding that parent-child visitation or physical placement would be harmful to the child may a parent be denied visitation and physical placement; and (5) if an order denying visitation and physical placement is entered, it must contain conditions that when met will permit the parent to request a revision of the order to afford visitation or periods of physical placement. DCDHS and the amicus curiae submit that at each of these steps, findings must be made that reflect on the parent's fitness. We agree that the statutory step-by-step process that underlies § 48.415(4) is sufficient to show that subsection (4) is narrowly tailored to advance the State's compelling interest of protecting children against unfit parents, and to demonstrate this, we outline how this scheme was applied in EE's case.

¶ 27. In the first step, a petition was filed, alleging probable cause to believe that the children were in need of protection or services (CHIFS). It claimed neglect and severe abuse of the children. The children were placed in foster care on March 21, 2001, after EE's arrest for sexually assaulting one of the children.⁷

¶ 28. Because the children were not released after they were initially taken into custody,⁸ a hearing was held to find whether the children should remain in custody, based upon whether probable cause existed, sufficient to prove one of the criteria listed in Wis. Stat. § 48.205(1).⁹ While not every ground listed at § 48.205(1) necessarily goes to a parent's unfitness, the present case would appear to fit squarely within the criteria listed at § 48.205(l)(a)-(am),¹⁰ requiring that probable cause exists that the child will be subject to injury if not held in governmental custody. There is nothing in the record to indicate that EE contested the determination that his children be placed outside his home for their safety.

¶ 29. EE's children were adjudicated CHIFS on July 18, 2001, which required that a fact-finding hearing have been held under Wis. Stat. § 48.31. Wisconsin Stat. § 48.27 requires that parents be provided notice of the hearing. A CHIFS determination may not be made unless one of the 14 grounds described in Wis. Stat. § 48.13 is found. Each of those grounds defines some type of parental abandonment, abuse, neglect, or inability to care for the child. These allegations have to be proven by clear and convincing evidence. Wis. Stat. § 48.31(1). Again, the record does not indicate that EE challenged the factual findings that were made.

¶ 30. EE's children remained in foster care after the CHIFS adjudication, due to a subsequent disposi-tional hearing held pursuant to Wis. Stat. § 48.335. At the dispositional hearing in a CHIFS case, the court may order that placement of a child be transferred outside the parental home "only when there is no less drastic alternative." Wis. Stat. § 48.355(1). A disposi-tional order that places a child outside the home must contain a finding that placing the child in the parental home would be "contrary to the welfare of the child" and, unless limited circumstances exist that are not present in this case, a finding that the relevant social service agency made reasonable efforts to prevent the child's removal from the home. Wis. Stat. § 48.355(2)(b)6. In EE's case, the October 31, 2002 revised and extended dispositional order indicated that the children were removed from their parents' home because of physical and sexual abuse by EE and severe neglect by both parents. The order also required that the name and address of each child's placement be withheld from EE, which may be done only if the court finds that such a disclosure would result "in imminent danger" to the child or foster parents, Wis. Stat. § 48.355(2)(b)2. While Justice Butler's dissent is correct that this finding was made during a hearing where the best interest of the child is the controlling standard, Justice Butler's dissent, ¶ 88, it was also grounded in a lack of fitness on the part of EE Here, the finding was based on EE's sexual assault and extreme abuse of his own children. Therefore, this finding supports the ultimate determination that EE was an unfit parent. However, once again, the record does not indicate that EE contested these determinations.

¶ 31. Because an out-of-home placement of the children was ordered, the issue of parental visitation arose. Except under enumerated circumstances, a visitation determination may be made only after a hearing with due notice to the parent. Wis. Stat. § 48.355(3). The court has the discretion, based on the best interests of the child, to set reasonable rules regarding parental visitation within the dispositional order. Wis. Stat. § 48.355(3)(a). In the present case, the court denied EE visitation with the children, and the court provided conditions that had to be met before visitation could be granted. Under Wis. Stat. § 48.363(l)(a), a parent may request a revision of the dispositional order, which would include a revision of the court-imposed rules regarding visitation. The record does not show that EE contested the denial of visitation or the conditions imposed, or that he moved the court to revise these visitation rules.¹¹

¶ 32. Only after all the above described steps took place, was EE faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under § 48.415(4) involve an evaluation of a parent's fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The full statutory scheme that precedes the implementation of § 48.415(4) must be evaluated as well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives. In our view, EE has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty.

¶ 33. Further, the application of Wis. Stat. § 48.415(4) to EE's case demonstrates that there is at least one possible interpretation and application of the statute that is constitutional, as we have described above, in its application to EE Accordingly, we have been provided with further evidence that § 48.415(4), on its face, is not unconstitutional beyond a reasonable doubt. See Cole, 264 Wis. 2d 520, ¶ 30 (concluding that when there is an application or interpretation of the statute that is constitutional, the statute is not unconstitutional on its face).

¶ 34. EE had multiple opportunities to contest the determinations made at each fact-finding stage in the statutory scheme that was employed in advance of the termination of his parental rights. He chose not to contest any of these predicate steps. Instead, he pled no contest to the allegation that Wis. Stat. § 48.415(4) provided a ground for terminating his parental rights. Accordingly, the record supports the conclusion of Wis. Stat. § 48.424(4) that EE is an unfit parent.

III. CONCLUSION

¶ 35. Because we conclude that EE's parental rights were terminated by use of a statutory scheme that does require a showing of unfitness before termination of parental rights can occur, that such a showing was made and that EE did not contest the validity of the order that formed the basis for the State's petition, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 The mother's parental rights have been terminated, and she is not a party to this review.

2 All subsequent references to the Wisconsin Statutes are to. the 2001-02 version unless otherwise indicated.

3 EE does not tell us whether he bases his challenge solely on a fundamental liberty interest that is secured by the Due Process Clause of the United States Constitution or whether there is a state constitutional issue involved too. However, he cites only federal law to identify the fundamental liberty interest he claims the State violated. Accordingly, we conclude that the Fourteenth Amendment to the United States Constitution is the foundation for his argument. The Due Process Clause of the Fourteenth Amendment has been held to protect certain unstated fundamental rights, including those relating to parent/child relationships. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (instructing that it is only when a parent has a substantial relationship with his or her child that he or she has a fundamental liberty interest in the society and companionship of the child that is protected by the Due Process Clause of the Fourteenth Amendment).

4 The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides in part that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. Xiy § 1- See also Wis. Const, art. 1, §§ 1 and 8.

5 A parent's fundamental right to the care and society of his or her child may not be terminated absent a finding that the parent is unfit. Stanley v. Illinois, 405 U.S. 645, 649 (1972).

6 In his brief, P.P. cites Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, for the proposition that there is "no defense to § 48.415(4) based on [a] parent's explanation for noncompliance with the order." However, the Steven V. decision was grounded in procedural due process rights, not a substantive due process right. Steven V., 271 Wis. 2d 1, ¶¶ 23, 40 n.6. Thus, in Steven V, we were not addressing whether Wis. Stat. § 48.415(4) was narrowly tailored sufficient to satisfy substantive due process in an individual case. See id. Here, EE's constitutional challenge is based on substantive due process grounds. Had he chosen to raise a defense to the ground set out in § 48.415(4) in circuit court, he may have put himself in a position to raise an as-applied challenge to § 48.415(4) on a substantive due process basis on appeal. However, he chose to plead no contest to the petition to terminate his parental rights, thereby admitting the ground alleged. However, neither Steven V., nor this decision, forecloses the possibility of an as-applied substantive due process challenge to § 48.415(4) in the future.

7 A child may initially be held in governmental custody, which Wis. Stat. § 48.207(l)(c) explains includes foster care, only when there is probable cause to believe that one of the criteria enumerated under Wis. Stat. § 48.205(1) exists.

8 Wisconsin Stat. § 48.205(1) provides that an intake worker determine whether a child may be held based on probable cause to believe that the child is within the court's jurisdiction and probable cause to believe that one of several enumerated grounds exists. These grounds include concerns for the safety of the child.

9 This hearing must be held within 48 hours of the decision to hold a child, exclusive of Saturdays, Sundays and legal holidays. Wis. Stat. § 48.21(l)(a).

10 Wisconsin Stat. §§48.205(1), 48.205(l)(a), and 48.205(1) (am) state:

(1) A child may be held under s. 48.207(1)... if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and:

(a) Probable cause exists to believe that if the child is not held he or she will cause injury to himself or herself or be subject to injury by others.

(am) Probable cause exists to believe that if the child is not held he or she will be subject to injury by others, based on a determination under par. (a) or a finding under 48.21(4) that if another child in the home is not held that child will be subject to injury by others.

11 One of the conditions for the resumption of visitation was that EE not be incarcerated. Justice Butler's dissent asks, "Will this now become an independent ground to terminate the rights of parents convicted of felonies with sentences in excess of a year?" Justice Butler's dissent, ¶ 91 n.8. The grounds for termination are established by the legislature. However, the order requiring that a parent not be incarcerated is set by a court; this same court can modify that order on the motion of a parent. Wis. Stat. § 48.363(l)(a).