Odd S.-G. v. Carolyn S.-G.

533 N.W.2d 794, 194 Wis. 2d 365, 1995 Wisc. LEXIS 96

• Court: Wisconsin Supreme Court
• Decided: June 27, 1995
• Docket: 94-1965
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

Odd S.-G. (Odd) filed a petition for the involuntary termination of his daughter Carolyn S.-G.'s (Cally) parental rights to her child, Kyle S.-G., Odd's grandchild. Cally seeks review of a decision of the court of appeals which held that in an action for the involuntary termination of parental rights, once abandonment, as that term is used in the statutes, has been established, the burden of proof shifts to the opposing parent to prove by clear and convincing evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care or well-being. We conclude that the burden of proof does shift to the parent once abandonment has been established, and that it is the parent’s burden to show by a preponderance of the evidence that disassociation or relinquishment of responsibility for the child's care and well-being has not occurred. Accordingly, although we apply a different standard of proof to the burden held by the parent, we affirm the decision of the court of appeals and remand to the circuit court for a new trial.

The facts relevant to this review are undisputed. Cally is the mother of Kyle and the daughter of Odd and his wife Carolyn S.-G. While living in Waukesha near their daughter, Odd and his wife provided regular care for their grandson, Kyle. From the time of Kyle's birth on October 27,1990, Odd and his wife were concerned about Cally's lifestyle and what they perceived as its negative impact on Kyle.

On November 8, 1992, shortly after Kyle's second birthday, Cally agreed to let her parents take Kyle with them for approximately a two-month vacation, to visit their other children living in Maine and Utah. While on vacation, Odd and Carolyn decided to relocate to warmer climates and moved into a home in Virginia with Kyle. Odd and Carolyn never returned with Kyle to Wisconsin; Cally did not see or directly speak to Kyle between November 9,1992 and November 9,1993.

On December 28,1993, Odd filed a petition for the involuntary termination of Cally's parental rights to Kyle. The petition alleged that Cally had abandoned Kyle for more than one year. See sec. 48.415(l)(a)3, Stats.¹ After a five-day trial, the court gave the jury the following instruction on the burden of proof with respect to abandonment: "The petitioner Odd S.-G. has the burden of convincing you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that Cally has abandoned Kyle." The jury returned a verdict finding that Cally had not abandoned Kyle.

Odd brought a motion for judgment notwithstanding the verdict arguing, inter alia, that the circuit court erred in refusing to give the jury an additional instruction informing the jury that if Odd proved the basic elements of abandonment under a clear and convincing standard of proof, the burden of production and persuasion shifted to Cally to prove by a preponderance of the evidence that she had not disassociated herself from Kyle or relinquished her parental rights. The circuit court denied the motion.

Odd appealed, and the court of appeals reversed and remanded for a new trial on the basis that the jury was not properly instructed on the burden of proof with respect to abandonment. The court held that the jury should have been instructed that after Odd met his burden Cally had the burden of proving by clear and convincing evidence that she did not disassociate herself from Kyle or relinquish responsibility for his care or well-being. Cally seeks review from that decision.

The issue is whether a showing of abandonment under sec. 48.415(l)(a)3, Stats., shifts the burden of persuasion under sec. 48.415(l)(c) to Cally to prove that she had not disassociated herself from Kyle or that she had not relinquished responsibility for Kyle's care and well-being. If the burden of proof shifts to Cally, we must determine the standard to be applied to that burden. This presents a question of statutory interpretation which we review de novo. Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 651, 529 N.W.2d 905 (1995). The goal in statutory interpretation cases is to ascertain and give effect to the intent of the legislature. Id. When interpreting a statute, we first look to statutory language and if the meaning is clear, we will not look outside the statute. Voss v. City of Middleton, 162 Wis. 2d 737, 749, 470 N.W.2d 625 (1991). If the statute does not clearly set forth the legislative intent we will look at the history, scope, context, subject matter and object of the statute to aid in our construction. Id.

Section 48.415(l)(a)3, Stats., provides that abandonment may be established by a showing that: (1) the child has been left by the parent with a relative or other person; (2) the parent knows or could discover the whereabouts of the child; and (3) the parent has failed to visit or communicate with the child for a period of one year or longer. Section 48.31(1), Stats., provides that the party seeking to terminate parental rights must prove these basic facts by clear and convincing evidence. Once these facts are established, sec. 48.415(l)(c) provides that the showing may be rebutted by other evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care or well-being. That is, the natural parent may rebut the presumption of abandonment with evidence of nondisassociation. See In Interest of T.P.S., 168 Wis. 2d 259, 266, 483 N.W.2d 591 (Ct. App. 1992).

Although Cally acknowledges that the court of appeals in In Interest of T.P.S. recognized that sec. 48.415, Stats., creates a presumption of abandonment, she disagrees with that conclusion. Assuming a presumption exists, however, she argues that it is a legal presumption akin to a prima facie showing which does not shift the burden of persuasion but merely requires a fact-finder to adjudge that a child has been abandoned absent evidence to the contrary. She contends that once she meets the burden of production and introduces evidence that she has not disassociated herself from Kyle or relinquished responsibility for his care and well-being, the presumption of abandonment vanishes. At that point, Odd must persuade the jury under a clear and convincing burden of proof that Cally did disassociate herself from Kyle and that the facts establish abandonment. In Cally's view she never bears the burden of persuasion; Odd retains the burden of proving abandonment by clear and convincing evidence at all times.

On the other hand, Odd contends that once he establishes the basic facts of abandonment and persuades the fact-finder of their actual existence, the burdens of both production and persuasion shift to Cally. According to Odd, Cally must prove that she did not disassociate herself from Kyle or relinquish responsibility for Kyle's care and well-being.

A termination of parental rights (TPR) action based upon a showing of abandonment under 48.415(l)(a)3, Stats., creates a rebuttable presumption' of abandonment: sec. 48.415(l)(a)3 provides that a showing of three basic facts establish abandonment and sec. 48.415(l)(c) provides that the showing of abandonment may be rebutted by evidence that Cally has not disassociated herself from Kyle or relinquished responsibility for his care and well-being. However, sec. 48.415(l)(c) is silent with respect to the effect of the presumption on the opposing party. We conclude that because the statute is silent and because a TPR action is civil in nature, see In re Termination of Parental Rights to M.A.M., 116 Wis. 2d 432, 442, 342 N.W.2d 410, 415 (1984), the presumption is governed by sec. 903.01, Stats., which addresses presumptions in civil actions.

Section 903.01 provides:

Presumptions in general. Except as provided by statute, a presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexis-ténce of the presumed fact is more probable than its existence.

This rule of evidence recognizes that once established, a presumption shifts the burden of production and persuasion to the party opposing the presumption. See Judicial Council Committee Notes, 1974, sec. 903.01, 59 Wis. 2d R41, R42 ([the presumption] shift[s] the burden of persuasion as well as the burden of producing evidence. The section effectuates a major change in Wisconsin law.).

The operation of sec. 903.01, Stats., works as follows. The party relying on the presumption "has the burden of proving the basic facts." 7 Daniel D. Blinka, Wisconsin Practice sec. 301.4 at 52 (1991). The term "burden", referred to in the statute refers to both the burdens of production and persuasion. Once the basic facts are found to exist, i.e., the petitioner has both produced evidence of those facts and convinced the jury of their existence, the burdens of persuasion and production shift to the party opposing the presumption. That party then bears the burden of proving "that the nonexistence of the presumed facts is more probable than its existence." Id.

As applied to this case then, sec. 903.01, Stats., requires that once Odd establishes the basic facts of abandonment by clear and convincing evidence, i.e., meets both the burden of production and persuasion, the burden shifts to Cally. Cally must rebut the evidence by producing evidence that she did not disassociate herself from Kyle or relinquish responsibility for Kyle's care or well-being, and then by persuading the jury that that evidence actually exists.

Cally contends that sec. 903.01, Stats., does not apply to this case because the presumption created in sec. 48.415(l)(c), Stats., is a presumption of law as opposed to a presumption of fact. Whereas a presumption of fact governed by sec. 903.01 shifts the burden of persuasion, a presumption of law simply requires a fact-finder to find abandonment unless evidence is introduced to the contrary. She illustrates sec. 903.01's "ill-fit" to this case by directing us to the fact that sec. 903.01 applies when the person opposing the presumption has to prove that the nonexistence of the presumed fact is more probable than its existence. Cally posits that if the presumed fact under sec. 48.415(l)(a)3, Stats., is "abandonment", she should be proving the nonexistence of "abandonment". However, under sec. 48.415(l)(c) she is required to show evidence that she has not "disassociated" herself from Kyle, not that she has not "abandoned" him.

Further, Cally contends that applying sec. 903.01, Stats., and shifting the burden of persuasion to her would violate the due process requirements set forth in Santosky II v. Kramer, 455 U.S. 745, 754-55 (1982). Santosky held that the party seeking to terminate parental rights bears the burden of proving his allegations by clear and convincing evidence. Cally contends that if she has to prove nondisassociation by any standard, Odd's burden is effectively lowered below a clear and convincing standard.

We find little merit in her arguments. As to her first argument, evidence of nondisassociation, although potentially distinct from the three factual conclusions needed to create the presumption of abandonment, goes directly to rebutting the factual presumption of abandonment. Early drafts of sec. 48.415, Stats., illustrate this: in the early drafts of the statute, abandonment was defined in terms of when a "parent has deserted a child with the intent to disassociate himself or herself from the child and to relinquish responsibility for the care and well-being of the child." See Drafting record, Laws 1979, ch. 330. Similarly, the analysis of the legislative reference bureau in those drafts originally stated, " [abandonment may be presumed wherever the child is found in circumstances which manifest that the parent has left the child with the clear intent to disassociate himself or herself from the child and to relinquish responsibility for the child." Id. Evidence that Cally has not disassociated herself from Kyle, i.e., evidence, for example, that she has continued to support Kyle or has written him letters and cards that were not received, goes directly to show that she has not abandoned him.

The court of appeals recognized in T.P.S., 168 Wis. 2d at 266, that evidence of nondisassociation goes directly to disproving abandonment. In T.P.S., the court rejected an argument that the failure of a father to communicate with a child for a period of one year established abandonment as a matter of law. The court stated that "[t]he father's failure to have contact with his child... only establishes a presumption of abandonment. ... If [the evidence of nondisassociation introduced by the father] is believed, the fact-finder could conclude that, pursuant to sec. 48.415(l)(c), Stats., the father rebutted the presumption of abandonment. ..." Id.

As to Cally's second argument, Santosky requires Odd to prove abandonment by clear and convincing evidence. Santosky does not speak to rebuttal evidence, it simply makes clear that Odd bears the burden of proving his allegations by clear and convincing evidence and that the risk of erroneously terminating parental rights must be lower than the risk of erroneously not terminating parental rights. 455 U.S. at 754-755. As long as Odd establishes abandonment by clear and convincing evidence and retains a higher burden of proof, the due process requirements set forth in Santosky are met.

Having determined that the presumption in sec. 48.415, Stats., shifts the burden to Cally to prove evidence that she did not disassociate herself from Kyle or relinquish responsibility for his care and well-being, we must determine the standard of proof to be applied to her burden. Section 48.415, Stats., is silent about the burden of proof with respect to rebutting the presumption of abandonment. Further, no statutory history exists on this specific issue.

Odd contends that since sec. 903.01, Stats., is applicable to sec. 48.415(1), Stats., we may look to the standard evinced in sec. 903.01 and the Judicial Committee notes that accompany the statute. The statute requires the presumption to be rebutted by evidence which proves that ,!the nonexistence of the presumed fact is more probable than its existence." Section 903.01. He contends that the Judicial Council Committee's Note — 1974, 59 Wis. 2d at R42, which accompanies that statute, makes clear that this presumption can only be overcome by evidence of equal weight. See Kruse v. Horlamus Industries, 130 Wis. 2d 357, 365-66, 387 N.W.2d 64 (1986). Accordingly, since Odd must prove abandonment by clear and convincing evidence, he contends that Cally must similarly prove evidence to the contrary by clear and convincing evidence.

We disagree with Odd and conclude that the general rules suggested in the Judicial Council Committee's Note with respect to the appropriate burdens of proof in most cases, should not apply to TPR proceedings because of the unique constitutional concerns implicated by them. It has been reiterated by this court and the United States Supreme Court that the power to terminate parents rights is an awesome power. When someone seeks to terminate a parent's right to " 'the companionship, care, custody, and management of his or her children,'" they seek to infringe on "an interest far more precious than any property right." Santosky, 455 U.S. at 758-59 (Citations omitted). " 'A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.'" Id. at 759.

For this reason, the Supreme Court has concluded that the due process rights of parents in TPR actions require the party seeking to terminate parental rights to support its allegations by clear and convincing evidence. The function of a standard of proof is to instruct the fact-finder as to the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of proceeding. Santosky, 455 U.S. at 754 (quoting Addington v. Texas, 441 U.S. 418, 423 (1979)). The court in Santosky determined that the use of a clear and convincing standard in TPR proceedings adequately conveys to the jury the level of certainty needed to determine that grounds for termination exist. That is, the clear and convincing standard conveys to the jury that the risk of erroneously terminating parental rights must be lower than the risk of erroneously not terminating them. The court stated: "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 768 (citing Addington, 441 U.S. at 427).

If we were to adopt Odd's theory and conclude that Cally bore the burden of proving nondisassociation by clear and convincing evidence, the risk to Odd and Cally in the termination proceeding would be equally allotted; Cally's risk of losing Kyle would be equal to Odd's risk of not being able to establish grounds for termination. This result would be directly contrary to the mandates of Santosky. Santosky held that this is constitutionally intolerable because of the precious rights involved: "For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. . . . For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family." Id. at 765-66.

For this reason, we conclude that the'appropriate burden of proof to apply to an opposing parent in TPR proceedings under sec. 48.415(l)(a)3, Stats., is preponderance of the evidence. We note that other state courts have come to similar decisions with respect to the level of proof needed by parents to rebut evidence at or after a termination proceeding. For example, the Supreme Court of Vermont in In re T.E., 582 A.2d 160, 162 (Vt. 1990), held that a parent seeking to modify a termination order which was supported by clear and convincing evidence, should bear a lower burden of proof:

[ D]ue process requires that a higher stan- ■ dard — clear and convincing evidence — be imposed on the State whenever it seeks permanently to sever what has been described as "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child." ... If a parent is able, however, to show by a preponderance of the evidence that there has been a substantial change in circumstances and that the best interests of the child require an amendment, modification or vacation of a termination order, . . . the State no longer can maintain the claim that clear and convincing evidence exists to justify the severance of parental rights. Id.

Similarly, the Kansas Court of Appeals in In the interest of L.D.B., C.C.B., and V.J.B., 891 P.2d 468, 471 (Kan. App. Ct. 1995), held that when a parent rebuts a showing of parental unfitness, he or she must only prove the rebuttal evidence under a preponderance of the evidence standard. The court stated:

Given the fundamental rights at stake in a termination of parental rights proceeding, we believe a lower standard of proof is required. When faced with a presumption of unfitness . . . the parent should be able to successfully rebut that presumption by showing parental fitness by a preponderance of the evidence.

An analysis similar to that in the above cases is required here. If Cally establishes by a preponderance of the evidence that she did not disassociate herself from Kyle or relinquish responsibility for his care and well-being, Odd can no longer claim that there is clear and convincing evidence of abandonment, and his petition must necessarily fail.

In sum, we conclude that the presumption of abandonment under sec. 48.415(l)(a)3, Stats., shifts the burden of production and persuasion to Cally to prove by a preponderance of the evidence that she has not disassociated herself from Kyle or relinquished responsibility for his care or well-being. Accordingly, although we apply a different standard of proof to rebuttal evidence, we affirm the decision of the court of appeals and remand to the circuit court for a new trial.

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

1 Section 48.415, Stats., provides in part:

48.415 Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury may make a finding that grounds exist for the termination of parental rights. Grounds for termination of parental rights shall be one of the following:

(1) Abandonment, (a) Abandonment may be established by a showing that:

3. The child has been left by the parent with a relative or other person, the parent knows or could discover the whereabouts of the child find the parent has failed to visit or communicate with the child for a period of one year or longer.

(c) A showing under par. (a) that abandonment has occurred may be rebutted by other evidence that the parent has not disassociated himself or herself from the child or relinquished responsibility for the child's care and well-being.