Monroe County v. JENNIFER V.

548 N.W.2d 837, 200 Wis. 2d 678, 1996 Wisc. App. LEXIS 274

• Court: Court of Appeals of Wisconsin
• Decided: March 4, 1996
• Docket: 95-3062
• Status: Published

Opinions

VERGERONT, J.¹

Monroe County appeals from an order dismissing without prejudice its petition for termination of Jennifer V.'s parental rights to her minor child, Kody. The petition asserted § 48.415(5)(a), STATS., as a ground for termination — that the parent has caused death or injury to a child resulting in a felony conviction. The issue presented on appeal is whether such a conviction may be the ground for termination of parental rights when an appeal of the conviction is still pending. We conclude that the term "conviction," as used in § 48.415(5)(a), means a conviction after the right of appeal has been exhausted. We therefore affirm the dismissal.

The petition for termination of parental rights alleged the following. Jennifer was found guilty by a jury on November 12,1994, of recklessly causing great bodily harm to Kody, in violation of § 948.03(3)(a), Stats., a felony. The crime was committed on or about January 6, 1994. Jennifer was sentenced on March 8, 1995, to five years in the Wisconsin State Prison System. A certified copy of the amended judgment of conviction was filed with the petition.

Monroe County moved for summary judgment² on the ground that there was no factual dispute that Jennifer was convicted as alleged in the petition and that therefore, as a matter of law, a ground for termination of parental rights under § 48.415(5)(a), STATS., existed.³ At the hearing on the motion, Jennifer's counsel informed the court that the process for appealing the conviction had been initiated and the present status was that the court of appeals had extended the time to complete and file the transcript in the criminal proceeding. Her counsel argued that the motion for summary judgment was "premature" as long as an appeal was pending. The trial court concluded that a conviction was not a conviction within the meaning of § 48.415(5)(a) until all appellate remedies were exhausted. It denied the motion for summary judgment and dismissed the petition, without prejudice, so that the petition could be filed later if the conviction were affirmed.

Monroe County argues on appeal that "conviction" in § 48.415(5)(a), STATS., means a conviction at the trial level and that it is irrelevant whether an appeal is pending or, by implication, what the decision of the appellate court is. Jennifer argues that conviction means a final conviction after an appeal. "Conviction" is not defined in ch. 48, Stats.

The interpretation of a statute presents a question of law, which we review de novo. State v. Wittrock, 119 Wis. 2d 664, 669, 350 N.W.2d 647, 650 (1984). The purpose of statutory construction is to ascertain the intent of the legislature and, in doing so, our first resort is to the language of the statute itself. State v. Eichman, 155 Wis. 2d 552, 560, 456 N.W.2d 143, 146 (1990). If the statutory language is not ambiguous, that is the end of our inquiry; we simply apply the language to the case at hand. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68, 74 (1992). If the statute is ambiguous, meaning that more than one reasonable meaning can be attributed to it, then we examine the scope, history, context, subject matter and object of the statute in order to determine the legislative intent. Id. at 247-48, 493 N.W.2d at 74.

Section 48.415(5), STATS., provides as one ground for termination of parental rights:

CHILD Abuse. Child abuse may be estabhshed by a showing that the parent has exhibited a pattern of abusive behavior which is a substantial threat to the health of the child who is the subject of the petition and a showing of either of the following:

(a) That the parent has caused death or injury to a child or children resulting in a felony conviction.

(b) That, on more than one occasion, a child has been removed from the parent's home by the court under s. 48.345 [disposition of a child adjudged in need of protection or services (CHIPS)] after an adjudication that the child is in need of protection or services and a finding by the court that sexual or physical abuse was inflicted by the parent.⁴

Before construing the term "conviction" in para, (a), we must address the language preceding paras, (a) and (b). This language plainly requires that, for all terminations under § 48.415(5), STATS., there must be a showing that the parent has exhibited a pattern of abusive behavior which is a substantial threat to the health of the child. In addition, there must be a showing under either para, (a) or para. (b).

The petition must state the grounds for termination relied on under.§ 48.415, STATS., and "a statement of the facts and circumstances which the petitioner alleges establish these grounds." Section 48.42(l)(c)2, Stats. In reviewing the sufficiency of a pleading in a juvenile court proceeding, we may draw reasonable inferences from the allegations in the petition. In re L.A.T., 167 Wis. 2d 276, 284, 481 N.W.2d 493, 497 (Ct. App. 1992). The petition does not contain any allegations that Jennifer engaged in a pattern of abusive behavior. Nor do the allegations give rise to a reasonable inference that Jennifer has exhibited a pattern of abusive behavior toward Kody because only a single crime, committed on or about January 6, 1994, is alleged.

This deficiency in the petition was not argued before the trial court, nor is it argued on appeal. Apparently, both parties are of the view that a conviction, however defined, for a felony that caused death or injury to a child constitutes a ground for termination of parental rights. That is incorrect. Since the petition does not contain any statements that can be reasonably construed as alleging a pattern of abusive behavior which is a substantial threat to the health of Kody, the petition could have properly been dismissed for that reason.

We will proceed, nonetheless, to address the issue of the proper construction of the term "conviction." Affirming a dismissal on the ground that the petition does not allege a pattern of abusive behavior may result in the filing of another petition that alleges both a pattern of abusive behavior by Jennifer and contains the same allegations regarding the conviction. The issue of the construction of the term "conviction" was decided by the trial court and has been briefed by the parties. In the interest of avoiding unnecessary delay in a TPR proceeding, we turn to that issue now.

We conclude that the meanings of conviction offered by Monroe County and by Jennifer are both reasonable in the context of § 48.415(5), Stats. A judgment of conviction is entered by the trial court after a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest. Section 972.13(1), Stats. It is therefore reasonable to interpret "conviction" in § 48.415(5)(a) as the judgment of conviction entered by the trial court, as Monroe County contends. On the other hand, an appeal is an integral part in our judicial system for a final adjudication of guilt or innocence and serves to protect a defendant against errors in the criminal proceedings. State v. McDonald, 144 Wis. 2d 531, 536-37, 424 N.W.2d 411, 413-14 (1988). A defendant has both a statutory and a constitutional right to an appeal. Id. at 536-37, 424 N.W.2d at 414. It is therefore reasonable to interpret § 48.415(5)(a) to mean a conviction after the completion of the appeal as of right.

We have found the term conviction ambiguous in another context. In State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989), we were presented with two meanings for conviction as used in the habitual criminality statute, § 939.62, STATS.: (1) a finding of guilt (in that case, after a guilty plea), and (2) the entire legal process resulting in a judgment and sentence. Id. at 658, 449 N.W.2d at 622. We decided that there were at least two possible meanings of conviction and the term was therefore ambiguous. Id. We concluded that, in the context of that statute, the correct meaning was a finding of guilt. Id. at 659, 449 N.W.2d at 622. Wimmer does not resolve the issue presented here because it does not address the effect of a pending appeal on the meaning of conviction.⁵

We must consider the nature of TPR proceedings, including the constitutional implications in determining which of these meanings the legislature intended.⁶ A parent's interest in his or her child is a fundamental liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In re Philip W., 189 Wis. 2d 432, 436, 525 N.W.2d 384, 385 (Ct. App. 1994). The State's ability to deprive a person of that fundamental right must be justified by a compelling state interest and the infringement on the fundamental liberty to one's child must be narrowly tailored to serve that compelling interest. In re Amanda A., 194 Wis. 2d 627, 639, 534 N.W.2d 907, 911 (Ct. App. 1995). The State's power to terminate parental rights requires that the power be justly exercised. In re Philip W., 189 Wis. 2d at 437, 525 N.W.2d at 386. The constitutional protection afforded parents prohibits the termination of parental rights unless the parent is unfit, In re J.L.W., 102 Wis. 2d 118, 136, 306 N.W.2d 46, 55 (1981), and requires that unfitness be proved by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982).

We must also consider the purposes of proceedings under ch. 48, STATS., and TPR proceedings in particular. The pertinent purposes stated by the legislature are: to provide procedures through which children and other interested parties are assured of a fair hearing and of the protection of their constitutional rights while protecting the public safety, § 48.01(l)(a); to provide for the care, protection and wholesome mental and physical development of children, preserving the unity of the family whenever possible, § 48.01(l)(b); in cases of child abuse or neglect, to keep children in their homes when it is consistent with the child's best interest in terms of physical safety and physical health for them to remain at home, § 48.01(l)(e); to provide children with permanent and stable family relationships, eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their return to the family, § 48.01(l)(g); to promote the adoption of children into stable families rather than allowing them to remain in the impermanence of foster care, § 48.01(l)(gg); and to allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued and termination of parental rights is in the best interest of the child, § 48.01(l)(gr).

The balancing of the child's interest and the parent's interest in a TPR proceeding is difficult, but the tension between the child's own competing interests — maintaining parental bonds wherever possible, on the one hand, and escaping intolerable, hopeless family situations, on the other — is also clear and immediate. In re A.M.K., 105 Wis. 2d 91, 109, 312 N.W.2d 840, 849 (Ct. App. 1981). The public's interest similarly fluctuates between assuring a wholesome developmental setting for every child and preserving the unity of the family. Id.

With this background, we look again at the language of § 48.415(5), Stats. As we stated above, there are two requirements for terminating parental rights because of child abuse. One is a pattern of abusive behavior which is a substantial threat to the health of the child who is the subject of the petition. The second requirement is either that the parent has caused death or injury of a child resulting in a felony conviction, or that, on more than one occasion, a child has been removed from the parent's home by the court after a finding of abuse by the parent.⁷ The second requirement of either a felony conviction or of more than one removal of a child from the home under a CHIPS disposition demonstrates the legislature's intent that egregious conduct actually resulting in harm to a child, as established in other judicial proceedings, is a condition for unfitness under this section. One criminal conviction is sufficient. More than one CHIPS adjudication is required because a CHIPS adjudication need not involve felonious conduct and requires a lower burden of proof — clear and convincing rather than beyond a reasonable doubt.

The consequences of adopting Monroe County's interpretation of conviction in this context is troubling. If an appeal of a judgment of conviction is pending when the termination of parental rights occurs, there is the chance the judgment may be reversed. There may be a new trial, which could result in either a guilty verdict or an acquittal. If the reversal is due to the insufficiency of the evidence, the defendant cannot be retried. See State v. Ivy, 119 Wis. 2d 591, 609-10, 350 N.W.2d 622, 632 (1984). Meanwhile, the parent's rights would have been terminated and the child possibly already adopted.

The lack of finality of a conviction that is being appealed raises the question as to whether that conviction is clear and convincing evidence of parental unfitness. See In re Sonia G., 204 Cal. Rptr. 498, 501 (Cal. Ct. App. 1984) (judgment of conviction that may be reversed on appeal falls short of "clear and convincing" standard of proof required for TPR proceedings); see also In re D.D.F., 801 P.2d 703, 707-08 (Okla. 1990), cert. denied, 500 U.S. 922 (1991) (convictions pending on appeal are not final and cannot be the basis for a TPR). But see In re T.T., 845 P.2d 539, 540-41 (Colo. Ct. App. 1992) ("long-term confinement" under TPR statute is ground for termination even though appeal is pending; verdict and sentence in trial court satisfies "clear and convincing" standard).⁸ That lack of finality also does not ultimately promote permanency and stability for the child. Until the right to appeal has been exhausted, there is no certainty that the supposedly permanent arrangements made for the child will not be disrupted after a successful appeal.

For these reasons, we conclude the correct interpretation of "conviction" in § 48.415(5)(a), Stats., is a conviction after the appeal as of right has been exhausted. The appeal as of right is limited to the right to appeal to the court of appeals under § 808.03, STATS. We recognize that our interpretation will delay the initiation of TPR proceedings in those cases where neither § 48.415(5)(b) nor other sections of §48.415 apply.⁹ However, our construction defines and limits the period of that delay — the conviction is final for purposes of § 48.415(5)(a) once the appeal to the court of appeals has been exhausted.¹⁰ We are persuaded that this construction is more consistent with the nature and purposes of TPR proceedings and, therefore, with the legislature's intent.

By the Court. — Order affirmed.

1 This appeal was originally assigned as a one-judge appeal under § 752.31(2)(e), Stats. It was reassigned to a three-judge panel by order of the chief judge dated January 25, 1996. See Rule 809.41(3), Stats. This appeal has been expedited, see § 809.107(6)(e), Stats., and we extended the court's deadline to enable the panel to fully consider the matter. See Rule 809.82(2) (a), Stats.

2 In In re Philip W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), we held that summary judgment is inappropriate in involuntary termination of parental rights cases because the parent is entitled to a fact-finding hearing before parental rights are terminated. Id. at 436-37, 525 N.W.2d at 385-86. Whether Monroe County's motion for summary judgment is permissible is an issue not before this court.

3 In its motion, Monroe County did not seek a termination of parental rights, only a ruling that a ground for termination had been established. The motion implicitly recognized that, even though a ground for termination of parental rights is established, whether to terminate parental rights is within the discretion of the court. In re K.D.J., 163 Wis. 2d 90, 104-05, 470 N.W.2d 914, 920-21 (1991).

4 A child may be adjudged in need of protection or services if the child has been the victim of sexual or physical abuse by other than accidental means, § 48.13(3), Stats., or is at substantial risk of becoming the victim of sexual or physical abuse based on rehable and credible information that another child in the home has been a victim. Section 48.13(3m).

5 The same is true of State v. Smet, 186 Wis. 2d 24, 519 N.W.2d 697 (Ct. App. 1994), cited by the dissent. Smet followed Wimmer's construction of conviction. As in Wimmer, the context in Smet was sentencing.

6 The dissent cites a number of cases from other jurisdictions that construe the term "conviction" as used in various statutes that are unrelated to TPR proceedings. We do not consider the reasoning of these cases to be persuasive on the question of how to construe "conviction" in § 48.415(5), Stats.

7 While the pattern of abusive behavior must be a substantial threat to the health of "the child who is the subject of the petition," the victim of the abuse resulting in a felony conviction or the CHIPS dispositions need not be that child. Section 48.415 (5)(a) and (b), Stats., simply refers to "a child."

8 The dissent states that in three other TPR cases, other jurisdictions were faced with the same question and came to the same conclusion as the Colorado Court of Appeals did in In re T.T., 845 P.2d 539 (Colo. Ct. App. 1992). We do not agree with the dissent's characterizations of these cases. In Varnadore v. State Dep't of Human Resources, 543 So. 2d 1194 (Ala. Civ. App. 1989), In re Pima County Juvenile Severance Action No. S-2462, 785 P.2d 56 (Ariz. Ct. App. 1989), and In re Udstuen, 349 N.W.2d 300 (Minn. Ct. App. 1984), the courts do reject the parents' contentions that parental rights should not be terminated while a criminal conviction is being appealed. However, in none of these was the court interpreting "conviction" as a statutory requirement for termination of parental rights; in each case there was evidence before the court, other than the fact of a conviction, that justified termination under the applicable statutory requirements.

In another case, RW v. State ex rel. Laramie County, 766 P.2d 555 (Wyo. 1989), the convictions of both parents had been affirmed by the federal court of appeals and the parents were seeking review of their convictions by means of a petition for writ of certiorari to the United States Supreme Court. The court held that a conviction affirmed in an appeal as of right was a conviction within the meaning of Wyoming's TPR statute. Id. at 557. The court did not decide whether affirmance in an appeal as of right was necessary to the definition of conviction.

9 Our ruling does not prohibit evidence relating to the incident that is the subject of the criminal proceeding from being used to establish other grounds for termination. Nor does our ruling preclude the legislature from defining child abuse solely in terms of the abusive conduct itself, rather than requiring a criminal conviction for the conduct.

10 Criminal cases are given priority by the court of appeals. See Wis. Ct. App. IOP VI(2) (JULY 15,1991).