Racine Cnty. Human Servs. Dep't v. L. R. H.-J. (In re J.N.J.-W.)
Docket: Appeal No. 2018AP2065
Court: Court of Appeals of Wisconsin; March 5, 2019; Wisconsin; State Appellate Court
L.R.H.-J. appeals the involuntary termination of her parental rights to her daughter, J.N.J.-W. The Racine County Human Services Department sought summary judgment, which was granted, based on WIS. STAT. 48.415(9m) due to L.R.H.-J.'s past actions that led to the death of her first child. She contends that this statute is unconstitutional and claims ineffective assistance of counsel for not challenging the summary judgment. The court affirms the constitutionality of the statute and finds no deficiency in trial counsel's performance.
Background details include L.R.H.-J. giving birth to Baby J on May 12, 2015, followed by the child's removal and placement in foster care due to L.R.H.-J.’s history of causing her first child's death in 2005, marked by severe injuries and abuse. Charged with first-degree reckless homicide, L.R.H.-J. ultimately pled guilty to neglect causing death in 2007, receiving a fifteen-year sentence. In April 2017, the Human Services Department filed a termination of parental rights (TPR) petition citing L.R.H.-J.'s failure to assume parental responsibility and her felony conviction against a child. The court found no factual dispute regarding the grounds for termination and ruled that terminating her rights was in Baby J's best interest, emphasizing L.R.H.-J.'s lack of accountability for her previous child's death.
A department representative testified that without an admission regarding the death of the birth mother's first daughter, it is difficult to identify necessary behavior changes to prevent similar incidents. The court found this testimony compelling and noted pending child abuse charges as evidence of the birth mother's inability to conform her behavior concerning children. The court also pointed out the birth mother’s refusal to take medication recommended after a psychiatric evaluation and her minimal interaction with Baby J during visitations, despite regular attendance. The court applied the factors from WIS. STAT. 48.426(3) and subsequently terminated the birth mother's parental rights.
On November 9, 2018, the birth mother sought post-dispositional relief, claiming ineffective assistance of trial counsel for not opposing a summary judgment motion and for failing to challenge the constitutionality of WIS. STAT. 48.415(9m). After a hearing, the circuit court denied her motion, leading to an appeal. The birth mother argues that WIS. STAT. 48.415(9m) violates her substantive and procedural due process rights under both the Fourteenth Amendment and the Wisconsin Constitution. The court reviews the constitutionality of the statute de novo, presuming it constitutional unless proven otherwise.
WIS. STAT. 48.415(9m) allows a court to find a parent unfit if they have committed a serious felony against one of their children. The statute requires proof of conviction for such a felony against the child, which can be established through summary judgment.
In **Steven V. v. Kelley H.**, the Wisconsin Supreme Court held that due process does not require a jury trial at the grounds phase of termination of parental rights (TPR) cases. The court addressed the birth mother's claim that WIS. STAT. 48.415(9m) is facially unconstitutional due to being overbroad, vague, and violating equal protection rights. The court clarified that vagueness pertains to procedural due process and a law is void if it fails to provide fair notice of prohibited conduct. However, the court found that WIS. STAT. 48.415(9m) is clear and precisely defines the felonies that constitute a "serious felony" related to child neglect or abuse, specifically targeting serious crimes such as homicide, violence, or sexual assault against one’s own children.
The court rejected the mother's argument that the statute lacks temporal limitations, noting that while the unfitness determination does not consider the time elapsed since the felony conviction, procedural protections during TPR proceedings mitigate arbitrary applications of the law. The case exemplified these protections, as the department first filed a CHIPS petition, allowing the birth mother nearly two years to demonstrate her parenting capabilities before considering her unfitness under WIS. STAT. 48.415(9m). Ultimately, a finding of unfitness does not automatically terminate parental rights; rather, it leads to a subsequent determination of the child's best interests during the disposition phase.
WIS. STAT. 48.415(9m) is upheld as constitutional, both facially and as applied to the birth mother, who did not adequately challenge its validity. The court finds that the statute aligns with the government's interest in child protection, and the birth mother failed to demonstrate its unconstitutionality beyond a reasonable doubt. Although she argues that the statute was vague and overly broad regarding her circumstances, it was enacted prior to her child neglect conviction, and she was informed of the potential impact on her parental rights. The court noted that mitigating factors presented by the birth mother, such as her prison sentence completion and past abuse, could be considered during the disposition phase, not during the grounds phase where the court ultimately decided to terminate her parental rights based on the best interests of the child. Additionally, her claim of ineffective assistance of counsel for not contesting the statute's constitutionality was dismissed since the statute was deemed constitutional, and counsel's strategic choices were not considered deficient.
Birth mother did not prove that WIS. STAT. 48.415(9m) is unconstitutional, both on its face and as applied, beyond a reasonable doubt. The court determined that the statute is narrowly tailored to the compelling government interest of protecting children from unfit parents. Consequently, birth mother's trial counsel was not ineffective for failing to challenge the statute during the grounds phase of the termination of parental rights (TPR) proceedings. The court affirmed the order, stating that the opinion would not be published and that the appeal was decided by a single judge under Wis. Stat. 752.31(2)(e) (2017-18).
In TPR proceedings, there are two phases: the grounds phase, where the court decides if a parent is unfit based on statutory grounds, and the dispositional phase, which assesses the child's best interests if unfitness is established. Baby J's birth father’s parental rights were also terminated due to non-participation in services. Birth mother, released from prison in 2011 after a five-year sentence, had her supervision revoked based on a new charge she claims was fabricated. Following a no-merit report by her appellate counsel, the court found a potentially meritorious issue and allowed a remand for a claim of ineffective assistance of counsel.
The document outlines substantive due process rights, protecting against arbitrary state actions, and procedural due process, ensuring fair implementation of government actions affecting life, liberty, or property. Birth mother did not contest the level of scrutiny for assessing the constitutionality of the statute, nor was it determined whether she had a substantial parental relationship with Baby J, an issue not addressed in the circuit court. Thus, the court refrained from evaluating her fundamental liberty interest or the appropriate level of scrutiny for the statute.
The statute defines a "serious felony" as involving the commission, aiding, abetting, solicitation, conspiracy, or attempt related to specific violations under WIS. Stat. 940.01, 940.02, 940.03, or 940.05, or their equivalents in other jurisdictions. It includes violations of WIS. Stat. 940.19(3), 940.19(2), 940.19(4) or (5), 940.225(1) or (2), 948.02(1) or (2), and other specified statutes, particularly those involving the death of a victim. The birth mother raises equal protection concerns but does not substantiate her claims, leading to the possibility of declining review for inadequately briefed issues. She also argues that crimes related to aiding, abetting, or felony murder are disconnected from parental capability, but this is contested on the grounds that such actions directly impact a parent's ability to care for their child. The court references its decision in State v. C.L.K. regarding due process and trial frameworks, noting that it does not overrule prior rulings on the availability of summary judgment without addressing the matter further.
