In re H. M. G.

2019 WI App 8, 926 N.W.2d 515, 385 Wis. 2d 848
CourtCourt of Appeals of Wisconsin
DecidedJanuary 10, 2019
DocketAppeal Nos. 2018AP1641; 2018AP1642; 2018AP1643
StatusPublished

This text of 2019 WI App 8 (In re H. M. G.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re H. M. G., 2019 WI App 8, 926 N.W.2d 515, 385 Wis. 2d 848 (Wis. Ct. App. 2019).

Opinion

BLANCHARD, J.1

¶1 C.H.B. appeals the circuit court's orders terminating his parental rights to his three children pursuant to WIS. STAT. § 48.415(4) on the petition of S.M.G., C.H.B.'s ex-spouse and the children's mother. C.H.B. makes a single argument, which is a facial challenge to the constitutionality of § 48.415(4).2 Section 48.415(4) allows the termination of parental rights based on the continuing denial of physical placement or visitation. C.H.B. argues that this provision on its face violates the equal protection clause of the United States and Wisconsin Constitutions because it requires petitioners to prove, as to one class of respondent parents, that such parents were previously provided with warnings of the potential for termination of their parent rights, but does not require petitioners to prove this when seeking to terminate the rights of another class of respondent parents who C.H.B. contends are similarly situated to the first set of parents.

¶2 Based on the arguments presented, I conclude that C.H.B. has not met his burden to show beyond a reasonable doubt that WIS. STAT. § 48.415(4) is facially unconstitutional. At a minimum, he fails to adequately address differences between the two classes of respondent parents, which raises doubt about his constitutional challenge. Accordingly, I affirm.

BACKGROUND

¶3 In June 2017, S.M.G. filed petitions to terminate C.H.B.'s parental rights to their three children, H.M.G., N.R.B., and H.L.B.3 The petitions sought termination based on multiple statutory grounds, including under WIS. STAT. § 48.415(4).4 As pertinent to C.H.B.'s circumstances and the argument he makes on appeal, § 48.415(4) provides a ground for the termination of parental rights when the petitioner proves the following: (1) the respondent parent "has been denied periods of physical placement by court order in an action affecting the family," § 48.415(4)(a) ; and (2) at least one year has elapsed since the order denying physical placement was issued, during which time the order was not modified to permit physical placement, § 48.415(4)(b).

¶4 S.M.G. moved for partial summary judgment as to all three children solely on the ground of continuing denial of physical placement or visitation under WIS. STAT. § 48.415(4). C.H.B. acknowledged that, through a temporary order and a subsequent final family court order, he had been denied physical placement of the children for more than one year. However, in an argument that he does not now renew on appeal, C.H.B. opposed S.M.G.'s motion on the ground that procedural due process required that the challenge to his fitness as a parent be tried to a jury rather than decided based on a dispositive motion under the standards in § 48.415(4).

¶5 In support of this argument, C.H.B. further contended that the family court that had denied him physical placement had failed to accomplish what C.H.B. submitted was the court's obligation, namely, to warn him of the risk that his parental rights might be terminated if he failed to obtain a modification, within one year, of the order denying him physical placement of the children. C.H.B. contended that the court had warned C.H.B. improperly, by using an oral, not a written, warning that was allegedly incomplete because it did not inform C.H.B. how to avoid the termination of his rights. C.H.B. conceded that the court was not obligated by any statute or case law to give him such a warning, but argued that the failure to warn contributed to the violation of his constitutional right to procedural due process.

¶6 The circuit court granted partial summary judgment, finding C.H.B. to be unfit as a parent, resolving the first phase of the proceedings. The court rejected C.H.B.'s procedural due process argument. The court noted that our supreme court has upheld the constitutionality of a court using summary judgment to establish the unfitness of a parent, including based on "paper grounds" such as WIS. STAT. § 48.415(4). See Steven V. v. Kelley H. , 2004 WI 47, ¶¶37-44, 271 Wis. 2d 1, 678 N.W.2d 856. The court further observed that C.H.B. not only received the amount of process afforded by the termination of parental rights proceedings, but received additional process through the earlier family court proceedings.

¶7 Following a contested dispositional hearing, the details of which do not matter to the issue raised on appeal, the court determined that it was in the best interests of the children to terminate C.H.B.'s parental rights with respect to each child and entered final orders to that effect.

¶8 C.H.B. appeals the orders terminating his parental rights, raising a new argument on appeal.5 The guardian ad litem who was appointed for all three children by the circuit court joins S.M.G. in requesting that I affirm the termination of C.H.B.'s parental rights. C.H.B. does not renew on appeal his argument before the circuit court that WIS. STAT. § 48.415(4) violates the due process clauses of the U.S. and Wisconsin constitutions.

¶9 I express no view in this opinion on the merits of any potential substantive or procedural due process challenges that could be raised in this context, nor any view on the merits of any potential "as applied" constitutional challenges.

DISCUSSION

¶10 C.H.B.'s single argument on appeal is that WIS. STAT. § 48.415(4) always treats two classes of respondent parents in a manner that violates the rights of one class to equal protection under the federal and state constitutions.6 Specifically, C.H.B. argues that § 48.415(4) on its face violates the equal protection clause because it requires petitioners to prove, as to one class of respondent parents, that such parents were previously provided with warnings of the potential for termination of their parent rights, but omits that requirement of proof for petitioners seeking to terminate the rights of the other class of respondent parents. Applying rational basis review, I disagree that C.H.B. has made this showing beyond a reasonable doubt.

¶11 What follows is: (1) an overview of WIS. STAT. § 48.415(4) and closely related statutes as they relate to C.H.B.'s equal protection argument; (2) the standard of review and the burden C.H.B. takes on in making a facial challenge to § 48.415(4) 's constitutionality; (3) the standards applicable to equal protection-based challenges in particular, including my determination that C.H.B.'s equal protection claim calls for rational basis scrutiny of § 48.415(4) ; and (4) application of these standards to C.H.B.'s challenge of § 48.415(4), explaining my conclusion that C.H.B. fails to meet his burden to show beyond a reasonable doubt that the statute is unconstitutional.

The Statutes

¶12 WISCONSIN STAT. § 48.415(4) describes one overarching basis for establishing a ground for termination of parental rights, broken down into multiple alternative routes. The parent must have been the subject of "[c]ontinuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:"

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Bluebook (online)
2019 WI App 8, 926 N.W.2d 515, 385 Wis. 2d 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-h-m-g-wisctapp-2019.