Oneida County Dept. of Social Services v. Nicole W.

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2007 WI 30 SUPREME COURT CASE NO.: OF WISCONSIN 2005AP2656 COMPLETE TITLE: In re the termination of parental rights to Brianca M. W., a person under the age of 18: Oneida County Department of Social Services, Petitioner-Respondent, v. Nicole W., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 290 Wis. 2d 513, 712 N.W.2d 88 (Ct. App. 2006 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: March 13, 2007 October 30, 2006 Circuit Oneida Robert E. Kinney ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY and BUTLER, JR., JJ., join the dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs and oral argument by Martha K. Askins, assistant state public defender. For the petitioner-respondent there was a brief and oral argument by Thomas D. Wiensch, assistant corporation counsel and there was oral argument also by Jennifer A. Stuber, guardian ad litem. 2007 WI 30 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP2656 (L.C. No. 2005TP4) STATE OF WISCONSIN : IN SUPREME COURT In re the termination of parental rights to Brianca M. W., a person under the age of 18: FILED Oneida County Department of Social Services, Petitioner-Respondent, MAR 13, 2007 v. A. John Voelker Acting Clerk of Supreme Court Nicole W., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 PATIENCE DRAKE ROGGENSACK, J. unpublished decision of the court of Affirmed. This is a review of an appeals1 affirming the circuit court's order2 terminating Nicole W.'s (Nicole) parental rights to her daughter, Brianca M.W. (Brianca). The focus of 1 The appeal was decided by one judge pursuant to Wis. Stat. § 752.31(2) (2003-04). All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. 2 The Honorable Robert E. Kinney, Circuit Court Judge for Oneida County, presided. No. Nicole's appeal is that the circuit court erred 2005AP2656 in granting partial summary judgment under Wis. Stat. § 48.415(10) because her parental rights to her other child, Rockey, were terminated in a default judgment. Nicole contends that there was insufficient evidence demonstrating the particularized grounds for the termination of Nicole's parental rights in regard to Rockey, which precludes the § 48.415(10)(b) and "termination grounds," on that use a of that default as she termination judgment interprets is under not a § 48.415(10)(b). Consequently, Nicole argues, partial summary judgment should not have been granted and her parental rights were unlawfully terminated. ¶2 We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, "on one or more of the grounds § 48.415(10)(b) refers termination an was to specified proving involuntary in this only termination. section," that We the also in prior conclude that the order terminating Nicole's parental rights to Rockey, which arose from her default for failing to comply with a court order to personally appear at the fact-finding hearing, cannot be collaterally attacked in this proceeding and is sufficient evidence to prove that there was a prior involuntary termination of Nicole's rights to another child. court of appeals. 2 Accordingly, we affirm the No. I. ¶3 2003. 2005AP2656 BACKGROUND Nicole's daughter, Brianca, was born on October 21, Brianca was placed in foster care shortly after birth and has continued in foster care through the time of trial.3 On March 11, 2005, the Oneida County Department of Human Services (the Department) filed a petition to terminate Nicole's parental rights to Brianca. termination of The petition alleged two grounds for the Nicole's parental rights: Wis. Stat. § 48.415(2), Brianca's continuing need of protection or services and § 48.415(10), parental rights the to involuntary another child termination within the of Nicole's previous three years. ¶4 The Department moved for partial summary judgment on the second ground, relying on an order filed in Waukesha County on February 3, 2003 that involuntarily parental rights to her son, Rockey.4 terminated Nicole's The order states that Nicole was in default because she failed to appear at the factfinding hearing and that the termination of her rights to Rockey was involuntary, but it does not state the precise grounds for the involuntary termination. of the standard order form To explain more fully, section 6 that the Waukesha County Circuit 3 The circuit court found that Brianca was adjudged to be in need of protection or services under Wis. Stat. § 48.13(2),(3), or (10) based on a "Child in Need of Protection and/or Services" (CHIPS) order dated December 5, 2003. The CHIPS case was identified as Oneida County Juvenile Court Case No. 03-JC-94. 4 The Honorable Marianne E. Becker, Circuit Court Judge for Waukesha County, signed the order on January 24, 2003. 3 No. 2005AP2656 Court employed contains a list of all of the grounds found in Wis. Stat. § 48.415 for an involuntary termination. Opposite each ground is a box to check, which when checked would indicate that ground was a basis for the termination. However, the circuit court checked none of the boxes in section 6 of the form. The petition that commenced the Waukesha County termination of parental rights proceedings alleged that Nicole had abandoned Rockey, § 48.415(1), and that Rockey was in continuing need of protection or services, § 48.415(2). ¶5 In the present Oneida County termination proceedings, two hearings were held on the Department's motion for partial summary judgment. At the first hearing, Nicole argued that the order her terminating rights to Rockey was not sufficient because it was not a "termination on grounds," as she interprets Wis. Stat. § 48.415(10)(b), because the order was based on her default at the termination proceedings. The court reviewed the Waukesha order, which stated that Nicole was in default but did not state the termination. Department specific grounds employed for the involuntary The court then continued the hearing to allow the to produce a grounds copy of the sufficient Waukesha under petition § 48.415 had to determine whether been alleged. At the second hearing, the court reviewed the petition in combination with the Waukesha County Circuit Court order and determined that the order was 4 sufficient to establish an No. 2005AP2656 involuntary termination of parental rights within the criteria set out in § 49.415(10)(b).5 ¶6 Nicole termination of appealed her and parental repeated rights her to argument Rockey that the on her based default was not "based on grounds" as she interprets Wis. Stat. § 48.415(10). show the Nicole also argued that the default order did not circuit court had made findings of fact based on evidence presented to show the county had proved the grounds alleged and therefore, the prior termination order was insufficient in that way as well. ¶7 The court of appeals rejected Nicole's arguments and affirmed the circuit court's decision. The court of appeals reasoned that because the prior termination was involuntary, a fact that Nicole accomplished § 48.415. No. on does of the one contest, grounds it listed was necessarily in Wis. Stat. See Oneida County Dep't of Soc. Servs. v. Nicole W., 2005AP2656, unpublished February 7, 2006). order not op., ¶10 (Wis. Ct. App. The court of appeals also concluded that an demonstrating rights to another slip an involuntary child within the termination previous of three parental years, as required in § 48.415(10)(b), was the only proof the Department was required to submit. The court of appeals reasoned that even with a default judgment rendered because Nicole failed to comply 5 The circuit court also found that Brianca was adjudged to be in need of protection or services under Wis. Stat. § 48.13(2),(3), or (10) based on a CHIPS order dated December 5, 2003, as required by Wis. Stat. § 48.415(10)(a). 5 No. with a hearing court order to personally as the basis for appear terminating at the 2005AP2656 fact-finding parental rights, the Department must have proved the grounds for the termination by clear and convincing evidence. Id., ¶11. The court stated, "[t]o require the type of extensive review suggested by Nicole would be tantamount to permitting a collateral attack on the prior TPR." Id., ¶12. II. A. DISCUSSION Standard of Review ¶8 We independently, court. review the applying partial the same grant of summary methodology as judgment the circuit Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶15, 291 Wis. 2d 283, 717 N.W.2d 17. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Wis. Stat. § 802.08(2). ¶9 properly To determine granted § 48.415(10). in whether this partial case, we summary judgment interpret Wis. was Stat. The interpretation of a statute is a question of law that we also review independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110. B. Termination of Parental Rights ¶10 Terminations of parental rights "are among the most consequential of judicial acts, involving as they do 'the awesome authority of the State to destroy permanently all legal 6 No. recognition of the parental relationship.'" 2005AP2656 Steven V. v. Kelley H., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678 N.W.2d 856 (quoting Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768). A parent's interest in the parent-child relationship may rise to the level of a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. Id., ¶22 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).6 When a fundamental liberty interest is at issue, the due process clause of the Fourteenth Amendment requires that proof of parental unfitness be shown by clear and convincing evidence. Id., ¶23. ¶11 The Wisconsin Children's reflects constitutional safeguards. ¶22. As provided in the Code, Wis. Stat. ch. 48, Evelyn C.R., 246 Wis. 2d 1, Children's Code, an involuntary termination of parental rights proceeding involves two steps grounds and disposition. Id., ¶¶22-23. The first step, the grounds or unfitness phase, includes a fact-finding hearing "to determine whether grounds exist for the termination of parental rights." ¶12 Id. (quoting Wis. Stat. § 48.424). Wisconsin Stat. § 48.415 sets out 12 grounds for an involuntary termination of parental rights, including the grounds relied upon here, a prior involuntary termination of parental rights to another child within the prior three years. 6 The Due Process Clause in the Fourteenth Amendment of the United States Constitution states: "nor shall any State deprive any person of life, liberty, or property, without due process of law." 7 No. § 48.415(10).7 2005AP2656 At the fact-finding hearing, "[t]he petitioner must prove the allegations [supporting grounds for termination] by clear and convincing evidence." ¶22; Wis. Stat. § 48.31(1). Evelyn C.R., 246 Wis. 2d 1, While the legislative objective of the Children's Code is to promote the best interests of the child,8 the parent's rights are a court's central focus during the grounds proceeding. ¶13 phase of a termination parental rights Id. If grounds are found, the court must find the parent Steven V., 271 Wis. 2d 1, ¶25. unfit. of The proceeding then moves to step two, the dispositional phase. Evelyn C.R., 246 Wis. 2d 1, ¶23; Steven V., 271 Wis. 2d 1, ¶26 (citing Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶28, 255 Wis. 2d 170, 648 N.W.2d 402). whether the At the dispositional phase, the court determines best interests of the termination of the parent's rights. ¶23; Steven § 48.426(2)). V., 271 Wis. 2d 1, child are served by the Evelyn C.R., 246 Wis. 2d 1, ¶27 (citing Wis. Stat. While the central focus of the court proceeding 7 The other grounds for involuntary termination include abandonment, relinquishment, continuing need of protection or services, continuing parental disability, continuing denial of periods of physical placement or visitation, child abuse, failure to assume parental responsibility, incestuous parenthood, homicide or solicitation to commit homicide of parent, parenthood as a result of sexual assault, and commission of a serious felony against one of the person's children. Wis. Stat. § 48.415(1)-(9m). 8 Wisconsin Stat. § 48.01 states: "[i]n construing this chapter, the best interests of the child . . . shall always be of paramount consideration." 8 No. 2005AP2656 is now on the best interests of the child, the parent's rights are not ignored. A parent has the right to present evidence and to be heard at the dispositional phase too. Evelyn C.R., 246 Wis. 2d 1, ¶23 (citing Wis. Stat. § 48.427(1)-(1m)). ¶14 We employed in have the concluded grounds that phase summary of a judgment termination of may be parental rights proceeding when there is no genuine factual dispute that would preclude finding one or more of the statutory grounds by clear and convincing evidence. 44 (citing Wis. nothing in grounds phase followed. the Stat. § 802.08(2)-(3)). statutes and Id., Steven V., 271 Wis. 2d 1, ¶¶28- that ¶33. prohibits § 802.08 We summary sets further We the explained judgment in procedure explained that that the to be "[s]ome statutory grounds for unfitness . . . are expressly provable by official documentary evidence, such as court orders or judgments of conviction." Id., ¶37. Wisconsin Stat. § 48.415(10) is one of the subsections we listed as provable by court order. ¶¶37-38. Id., We explained: The availability of partial summary judgment in the grounds phase of a TPR proceeding where the entire proof of unfitness under the statute is an undisputed court record furthers the legislature's purpose and is consistent with the general rule that the provisions of the code of civil procedure apply to all civil actions and proceedings. Id., ¶39. ¶15 In this case, we address whether partial summary judgment was properly granted under Wis. Stat. § 48.415(10) when the order that terminated Nicole's parental rights to Rockey did 9 No. 2005AP2656 not state the explicit § 48.415 ground upon which the circuit court relied and the prior involuntary termination was based on her default for failing to comply with a court order to personally appear at the fact-finding hearing of the grounds phase of the termination of parental rights proceeding. With these questions in mind, we begin by determining the meaning of § 48.415(10)(b). C. Statutory Interpretation ¶16 is We interpret Wis. Stat. § 48.415(10) to determine what required to § 48.415(10)(b). satisfy the Statutory language of the statute. proof requirements interpretation begins with of the If the meaning of the words of a statute is plain, we ordinarily stop our inquiry and apply the words chosen by the legislature. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citing Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). context in which they are relation to statutes. the language Id., ¶46. Statutes are interpreted in the used, part of a whole and in surrounding of as or closely related A statute is ambiguous "if it is capable of being understood by reasonably well-informed persons in two or more senses." court may history. involves examine Id., the ambiguity." Id., ¶47. If a statute is ambiguous, the extrinsic ¶48. sources, However, ascertainment of such "[s]tatutory meaning, not as legislative interpretation a search for Id., ¶47 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶25, 260 Wis. 2d 633, 660 N.W.2d 656). 10 No. ¶17 2005AP2656 Wisconsin Stat. § 48.415(10) provides: Prior involuntary termination of parental rights to another child, which shall be established by proving all of the following: (a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13(2), (3) or (10). (b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection or services as specified in par. (a), a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section. ¶18 We conclude that the statute is not ambiguous and that its plain language requires that: (1) the child who is the subject of the petition has been adjudged to be in need of protection or services under Wis. Stat. § 48.13(2), (3) or (10); and (2) within the three years prior to that adjudication a court has terminated the parent's rights to another child in an involuntary termination proceeding. We come to this second conclusion because the words of § 48.415(10)(b), "on one or more of the grounds specified in this section," when read in the context of the whole statute, plainly refer to the 12 grounds listed for an involuntary termination of rights under § 48.415. This is significant termination of § 48.415(10). up her rights rights him it that is is only an sufficient involuntary to satisfy Stated otherwise, if Nicole had voluntarily given rights to to because Rockey, would be the order insufficient 11 terminating to satisfy her parental § 48.415(10) No. 2005AP2656 because that order would not have been based "on one or more of the grounds specified in this section," i.e., in § 48.415. ¶19 Wisconsin Stat. § 48.415(10)(b) does not require proof of which of the available 12 grounds set out in § 48.415 was the basis for the involuntary termination because the phrase, "on one or more of the grounds specified in this section," is meant as only a general directive rights was involuntary. that assures the termination of In regard to the sufficiency of a prior order that can be used as grounds under § 48.415(10), there is no need for the order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b).9 Furthermore, there is no reason that the legislature would require proof of which ground under § 48.415 was used enacting § 48.415 with in the multiple prior termination grounds for an because by involuntary termination of rights, the legislature established that proving any single ground listed therein by clear and convincing evidence is sufficient for a court to conclude that a parent was unfit. Steven V., 271 Wis. 2d 1, ¶25. ¶20 Although we do not consult legislative history to interpret Wis. Stat. § 48.415(10) because we have concluded that 9 Of course the issue may be different if the termination of Nicole's parental rights to Rockey were being appealed. In that case, the reviewing court could be asked to ascertain whether sufficient proof was admitted by the circuit court to support the court's determination that a specific ground was proved by clear and convincing evidence. However, an appeal of the termination of Nicole's parental rights to Rockey is not before us. 12 No. 2005AP2656 it is unambiguous, we may do so to confirm our decision. 271 Wis. 2d 633, ¶51. legislative council In this case, we note that the joint note analyzing § 48.415(10) with our interpretation of the statute. § 89. Kalal, is consistent See 1995 Wis. Act 275, The analysis states: Note: Adds a ground for involuntary TPR based on the involuntary TPR of another child when the following conditions are met: 1. The child who is the subject of the petition has been adjudicated CHIPS under s. 48.13(2), stats., (abandonment), (3), stats., (sexual or physical abuse) or (10), stats., (parent, guardian or legal custodian neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child); and 2. Within the 3 years prior to the date the child was adjudicated CHIPS, a juvenile court has ordered the involuntary TPR of another of the person's children. Id. (emphasis explaining language the added). statute requiring the The joint supports prior legislative our council interpretation termination to be that on note the grounds specified in § 48.415 means only that it must be proved that the prior termination was involuntary. ¶21 As one of her contentions, Nicole asserts that the termination of her parental rights to Rockey may not be used to satisfy Wis. Stat. § 48.415(10)(b) because the Waukesha County Circuit Court failed to check any of the boxes in section 6 on the form order the court used. Nicole's argument is not persuasive because, as we have explained above, the last clause in § 48.415(10)(b) requires only that the prior termination be 13 No. 2005AP2656 an involuntary termination and does not require proof of which grounds were the bases for that termination. that her parental rights Furthermore, to once Rockey Nicole concedes were involuntarily terminated. ¶22 terminating a a court unless parent's rights, has it is further proceeding, it is presumed valid. Auto. Ins. Zrimsek, having Co., 8 we Wis. 2d explained jurisdiction 1, that of 3, a the 98 an order overturned in a See Zrimsek v. Am. N.W.2d "judgment parties entered 383 (1959). rendered and the by subject a In court matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except . . . for fraud in its procurement." so explained in Id. (quoting 49 C.J.S. Judgments, § 401). the context of examining the finality of We a default judgment on a bail bond action against the principal. Id. at 3-4. We concluded that the presumption of validity of judgments is no less binding if the judgment was based on a default than if it were based on a full trial.10 ¶23 judgments, Based we on must Wisconsin's assume the 10 presumption Waukesha Id. of County validity Circuit of Court The Waukesha County Circuit Court had the authority to render a default judgment in response to Nicole's failure to comply with its order that she appear at the fact-finding hearing. See Gaertner v. 880 Corp., 131 Wis. 2d 492, 497, 389 N.W.2d 59 (Ct. App. 1986). Nicole does not contest this authority. 14 No. 2005AP2656 found by clear and convincing evidence that at least one of the grounds listed in Wis. Stat. § 48.415 had been proved before it terminated Nicole's parental rights to Rockey. This is so because Nicole does not allege that the Waukesha Circuit Court was without jurisdiction, that the order was appealed or otherwise set aside or that it was procured by fraud. ¶24 statement Furthermore, that an order does not have a written of which ground was the basis for an involuntary termination, but instead lists all possible grounds, is no basis for nullifying the effect of the order. order is valid. We must assume the Therefore, it is logical also to assume the missing check mark on the standard form employed by the Waukesha County Circuit Court is but a clerical or scrivener's error. See Bostwick v. Van Vleck, 106 Wis. 387, 390, 82 N.W. 302 (1900) (stating that a clerical mistake is "a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error," while an error in a judgment is "something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously"). ¶25 the The Oneida County Circuit Court said it also assumed omission "was probably an filling out of the standard form. inadvertent oversight in the The rest of the form appeared to have been filled out fine . . . ." not affect the validity of orders. Mere clerical errors do See, e.g., State ex rel. Gottschalk v. Miller, 136 Wis. 344, 348, 117 N.W. 809 (1908) (affirming an order of the supervisors of the town of Eagle to lay out a new highway and discontinue part of an old one because 15 No. 2005AP2656 the alleged error in the description of the highway was "a mere clerical error and does not affect the validity of the order"). D. Collateral Attack ¶26 Nicole also contends that the Waukesha County order that terminated her parental rights to Rockey cannot be used because it was entered after she was found in default for failing to comply with a court order to personally appear at the fact-finding sufficient hearing. evidence However, to prove a by circuit the clear court and must take convincing standard of proof that grounds for the termination exist, and it must make default such for personally a finding failing to appear. even when the comply with a Evelyn C.R., parent court 246 is order Wis. 2d found that 1, in she ¶26.11 Nevertheless, Nicole requests us to look under the order to the proceedings in Waukesha County to assure that this was done. ¶27 more We agree with the court of appeals that to require evidence than a prior involuntary 11 termination order to In Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, the parent did not personally appear at the fact-finding hearing and the circuit court found that grounds existed to terminate the parental rights based on allegations in the petition that the parent had abandoned the child. Id., ¶9. We concluded the court had erroneously exercised its discretion and reasoned, "by entering a default judgment against Tykila [the parent] on the issue of abandonment without first taking evidence sufficient to support such a finding, the circuit court failed to comply with the constitutional and statutory requirements for termination of parental rights." Id., ¶19. However, we found a factual basis in the record to support the termination and concluded the circuit court's procedural error was harmless. Id., ¶¶32-35. 16 No. satisfy Wis. Stat. § 48.415(10) would be 2005AP2656 tantamount permitting a collateral attack on the prior order. to A collateral attack on a judgment is "an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it." Zrimsek, 8 Wis. 2d 1, 3 (citing 5 Callaghan's, Bryant, Wisconsin Pleading and Practice (3d ed.), p. 373, § 37.97).12 ¶28 may In general, "a judgment is binding on the parties and not be attacked procured by fraud." in a collateral action unless it was State v. Madison, 120 Wis. 2d 150, 154, 353 N.W.2d 835 (Ct. App. 1984); cf. State v. Campbell, 2006 WI 99, ¶¶52-55, 294 Wis. 2d 100, 718 N.W.2d 649. Wisconsin courts have recognized allowing the general disfavor of collateral challenges on the basis that "they disrupt the finality of prior judgments and thereby tend to undermine confidence in the integrity of our procedures and inevitably delay and impair the orderly administration of justice." State v. Gudgeon, 2006 WI App 143, ¶6, ___ Wis. 2d ___, 720 N.W.2d 114 (citing Custis v. United States, 511 U.S. 485, 497 (1994) and Hahn, 238 Wis. 2d 889, ¶¶26-28 (following Custis)) (internal quotations omitted). The finality of a judgment in a termination of parental rights proceeding is even more critical because, as the legislature 12 See State v. Hahn, 2000 WI 118, ¶¶17, 28, 238 Wis. 2d 889, 618 N.W.2d 528 (allowing an offender to collaterally attack a prior conviction in an enhanced sentence proceeding "only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer"). 17 No. recognized, "instability relationships are and contrary impermanence to the welfare 2005AP2656 in of family children." Waukesha County v. Steven H., 2000 WI 28, ¶32, 233 Wis. 2d 344, 607 N.W.2d 607. ¶29 rights Nicole contends that her attack on the termination of order that arose in part from her default rendered because she failed to comply with a court order to personally appear is not a collateral attack on the validity of the order. She characterizes it as a failure of proof by the Department because it has not shown what actually occurred at the factfinding hearing in Waukesha County Circuit parental rights to Rockey were terminated. Court when her For example, in oral argument her counsel raised the issue of a possible denial of the right to counsel in the prior proceeding. When counsel was asked Waukesha whether Nicole was attacking the County termination of her parental rights to Rockey because she had not been represented by counsel in that proceeding, counsel responded that it was not possible to tell whether she had been represented by counsel, given the record before the court. ¶30 We have allowed defendants to collaterally attack a prior criminal conviction in the very limited circumstance of the deprivation of the right to counsel. a defendant may collaterally attack a In Hahn, we held that prior conviction that serves to enhance a prospective sentence where the defendant makes a prima facie showing that his or her constitutional right to counsel provided by the Sixth Amendment to the United States 18 No. Constitution was violated in that prior proceeding.13 Wis. 2d 889, ¶¶17, 28. We subsequently noted that 2005AP2656 Hahn, 238 we were "bound as a matter of federal constitutional law" and that "the Supreme Court's concerns about ease of administration and finality of judgments weighed in favor of a bright-line rule against collateral attacks, with the limited exception of rightto-counsel violations." State v. Peters, 2001 WI 74, ¶15, 244 Wis. 2d 470, 628 N.W.2d 797 (citing Hahn, 238 Wis. 2d 889, ¶¶2829). ¶31 We note that allowing a collateral attack due to a violation of the right to counsel has been applied only in the context of criminal proceedings and a termination of parental rights proceeding is civil in nature. Steven V., 271 Wis. 2d 1, ¶32 (stating termination of parental rights proceedings under Chapter 48 are civil proceedings). The Sixth Amendment right to counsel does not attach in civil proceedings. State v. Krause, 2006 WI App 43, ¶11, 289 Wis. 2d 573, 712 N.W.2d 67 (citing Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001)). ¶32 However, even though termination of parental rights proceedings are civil proceedings, we have determined that they "require decisions." heightened legal safeguards against erroneous Evelyn C.R., 246 Wis. 2d 1, ¶21 (concluding the 13 The Sixth Amendment to the United States Constitution states: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." This amendment is made applicable to the states by the Fourteenth Amendment. Hahn, 238 Wis. 2d 889, ¶4 n.3 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). 19 No. 2005AP2656 Fourteenth Amendment to the United States Constitution requires a showing of clear and convincing evidence that the termination is appropriate). ¶33 While the Sixth Amendment does not apply to civil proceedings, the right to counsel in termination of parental rights proceedings is accorded by Wis. Stat. § 48.23(2).14 legislature emphasized legislative edict is the that, necessity in of counsel termination and "[t]he proceedings, parent . . . shall be represented by counsel.'" The 'any M.W. v. Monroe County Dep't of Human Servs., 116 Wis. 2d 432, 437, 342 N.W.2d 410 (1984). We have recently affirmed that the statutory right to counsel is necessary to preserve the "fairness and integrity" of termination proceedings. State v. Shirley E., 2006 WI 129, ¶63, __ Wis. 2d __, 724 N.W.2d 623. that the statutory right assistance of counsel. 485 N.W.2d 52 (1992). to We have further explained counsel includes effective A.S. v. State, 168 Wis. 2d 995, 1004, In examining whether assistance of counsel in an involuntary termination of rights proceeding was effective, we have applied the Strickland test. (citing Strickland v. Washington, Strickland, the United States 466 U.S. Supreme Id. at 1005 668 (1984)). In Court adopted the following two-part test: 14 Wisconsin Stat. § 48.23(2) provides in relevant part: "If a proceeding involves . . . the involuntary termination of parental rights, any parent 18 years old or older who appears before the court shall be represented by counsel; but the parent may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made." 20 No. 2005AP2656 First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the [S]ixth [A]mendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. (citing State v. Harvey, 139 Wis. 2d 353, 375, 407 N.W.2d 235 (1987) (emphasis added). Therefore, we have applied Sixth Amendment concepts in the context of termination of parental rights proceedings, even though the proceedings are civil in nature and the Sixth Amendment does not apply to civil proceedings. ¶34 When a claim of denial of the right of counsel is made, the claimant has the burden to make a prima facie showing of a violation of the right to counsel. 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92. State v. Ernst, 2005 WI In that showing: [W]e require the defendant to point to facts that demonstrate that he or she did not know or understand the information which should have been provided in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. Any claim of a violation on a collateral attack that does not detail such facts will fail. Id. (concluding there was not a prima facie showing because the defendant did not mention specific facts that indicated his waiver of counsel was not knowing, intelligent, and voluntary) (citation omitted). ¶35 However, we need not determine whether the prior Waukesha County termination of rights order may be collaterally 21 No. 2005AP2656 attacked due to a violation of the right to counsel because Nicole made no prima facie showing that she was denied the right of counsel in the termination of rights proceeding regarding Rockey. Hahn, 238 Wis. 2d 889, ¶¶17, 28; Ernst, 283 Wis. 2d 300, ¶25. actually Furthermore, Nicole does not argue that she was not represented proceedings; demonstrate she she by counsel simply was argues in the that represented by prior the termination record not However, counsel. does the Department does not have the burden of proof in a collateral attack; Nicole does. See Ernst, 283 Wis. 2d 300, ¶25 (citing State v. Hampton, 2004 WI 107, ¶46, 274 Wis. 2d 379, 683 N.W.2d 14). She has not met it here. III. ¶36 CONCLUSION We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, "on one or more of the grounds § 48.415(10)(b) refers termination an was to specified proving involuntary in this only termination. section," that We the also in prior conclude that the order terminating Nicole's parental rights to Rockey, which arose from her default for failing to comply with a court order to personally appear at the fact-finding hearing, cannot be collaterally attacked in this proceeding and is sufficient evidence to prove that there was a prior involuntary termination of Nicole's rights to another child. court of appeals. 22 Accordingly, we affirm the No. By the Court. The decision affirmed. 23 of the court of 2005AP2656 appeals is No. ¶37 SHIRLEY Department of S. ABRAHAMSON, Social Services' C.J. 2005AP2656.ssa (dissenting). motion for partial The summary judgment terminating Nicole W.'s parental rights to Brianca was based on a certified copy of a Waukesha County Circuit Court order terminating Nicole W.'s parental rights to another child, Rockey. The issue presented in the instant case is whether the Department was entitled, as a matter of law, to a partial summary judgment on the basis of the Waukesha order. ¶38 The text of explicitly, and plainly termination of parental proving . . . that a Wis. Stat. requires that § 48.415(10) the "prior rights . . . shall court has ordered be the clearly, involuntary established by termination of parental rights [to the other child] . . . on one or more of the grounds specified in this section."1 ¶39 The Waukesha order terminating Nicole W.'s parental rights to her other child, Rockey, a copy of which is attached, 1 Section 48.415(10) provides as follows: Prior involuntary termination of parental rights to another child, which shall be established by proving all of the following: (a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13(2), (3) or (10). (b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection of services as specified in par. (a), a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section. 1 No. 2005AP2656.ssa does not satisfy the requirements of Wis. Stat. § 48.415(10). Everyone agrees, including, I am sure, the reader, that the order fails state the grounds upon which the termination was ordered.2 ¶40 Waukesha The order § 48.415(10). majority relating opinion to plugs Rockey the by omission rewriting in Wis. the Stat. The majority opinion simply reads the statutory words "ordered the termination of parental rights . . . on one or more of the grounds specified in this section" out of the statute book. ¶41 The majority opinion interprets this statutory language as merely requiring that the prior termination be an involuntary termination; the ground of termination need not be stated. According to the majority opinion, "the last clause in § 48.415(10)(b) requires only that the prior termination be an involuntary termination and does not require grounds were the bases for that termination." proof of which Majority op., ¶21; see also ¶¶2, 36.3 ¶42 By rewriting Wis. Stat. § 48.415(10)(b), the majority opinion can declare the Waukesha order sufficient even though 2 Observe that the order provides several boxes to be marked to indicate on which grounds the termination of parental rights was ordered. None was marked and no other reference to the statutory ground for termination appears. 3 Other paragraphs in the majority opinion repeat that it is only necessary that the prior termination be "involuntary," majority op., ¶20, and that "there is no need for the [Waukesha] order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b)." Majority op., ¶19. 2 No. 2005AP2656.ssa the order does not specify any ground for terminating Nicole W.'s parental rights to the child. opinion. If the legislature had concluded that proof of a prior involuntary termination needed could it § 48.415(10). ¶43 I disagree with the majority of have parental simply rights so was stated all in that Wis. was Stat. It did not. I would not rewrite the text of the statute. I would apply the statute as written by the legislature, giving meaning to all of the words. involuntary The statute clearly states that a prior termination of parental rights to another child shall be established by proving that the prior court ordered termination on a ground specified in Wis. Stat. § 48.415. The Waukesha order relied upon by the Department did not satisfy this requirement, and therefore the Department's motion for partial summary judgment must fail as a matter of law. ¶44 Even if I were to accept the majority opinion's reading of the statute, the Waukesha order does not satisfy the statute. The Waukesha order is based on a default, not on any of the statutory grounds, as I explain below. ¶45 circuit Recognizing court the attempted defect to in repair the Waukesha the Waukesha order, order the by importing into the Waukesha order the grounds for termination stated in the petition for termination filed in Waukesha. I disagree with the circuit court's approach. ¶46 At the hearing on the motion for summary judgment in the present case, agreed, that the Nicole Waukesha W. asserted, order 3 was and the defective circuit court and could not No. support the motion because the for order did summary not judgment state a as a 2005AP2656.ssa matter statutory of law ground for termination. ¶47 on Accordingly, the circuit court adjourned the hearing the motion for summary judgment and permitted corporation counsel to obtain the rest of the file . . . ." "the The circuit court suggested various Waukesha County documents the corporation counsel might produce to cure the deficiency, such as the petition for termination and a transcript of the Waukesha County court hearings, and even proposed that the Department have the Waukesha court amend the order to correct it.4 ¶48 When, at the motion hearing, the corporation counsel offered an uncertified copy of the termination petition filed in 4 The circuit court stated that the corporation counsel should "find out what the petition alleged and, perhaps, obtain a transcript of the proceedings at which the default order was entered. Presumably that was transcribed because I think it would have been in the ordinary course of things. . . ." The circuit court further explained that it could not "determine from the current order what the grounds really were. What was Nicole W. defaulting to? What did the petition allege? That's really what we have to have. . . . We don't know really who the scrivener of the order was. . . ." The circuit court suggested that "it may well be that we should really have an amended order out of Waukesha County. . . . [I]t would be preferable to let Waukesha County correct its apparent inadvertent error." The circuit court concluded its instructions to the corporation counsel by saying that "what we have to do here is come back here and find out at that point whether the basis that was stated or bases stated were those mentioned in the statute. So we can't decide it today and we should have that information supplied." 4 No. 2005AP2656.ssa Waukesha County, the circuit court refused to accept it. The circuit court instructed, "[W]e should get a certified copy and we should also compare it with the order and we should give Waukesha County the opportunity to amend the order by, you know, having one of the boxes checked here."5 ¶49 At the next hearing on the motion for partial summary judgment, the corporation counsel produced only a certified copy of the petition for termination of parental rights to Rockey filed in Waukesha County, which, as might be expected, stated a statutory ground for termination. The circuit court found that the petition was good enough to plug the hole in the Waukesha order. I disagree with the circuit court. the ground for termination alleged in the There is no proof petition was ever proven. ¶50 Although the form order provides the circuit court an opportunity to state that the matter was tried to a jury or to the circuit court and that one or more of the statutory grounds for termination was found, the completed Waukesha order in the instant case merely states that Nicole W. failed to appear and was in default. The spaces in which to indicate that a hearing was held and that fact-finding occurred remain blank on the form order. ¶51 The Waukesha order on its face violates chapter 48 of the statutes by relying only on default and not fact-finding. 5 The circuit court was referring to the boxes on the order terminating parental rights which could be marked to indicate on which statutory grounds the order was granted. None of the boxes was checked here. 5 No. 2005AP2656.ssa Before entering a default judgment in a termination of parental rights case, a circuit court must hold a fact-finding hearing and find by clear and convincing evidence, upon the evidence presented, that the grounds to terminate the defaulting parent's rights to the child have been proven, even when a parent fails to appear at all and defaults or fails to appear at a proceeding in disobedience to a court order. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶24-25, 246 Wis. 2d 1, 629 N.W.2d 768. ¶52 upon The Waukesha order and the petition relating to Rockey which the Department relies do not establish that the circuit court held a fact-finding hearing or made the required findings. The only reasonable reading of the Waukesha order terminating Nicole W.'s parental rights to Rockey was that the order was entered on Nicole W.'s failure to appear and that no fact-finding hearing was held and no findings were made. Although this court has been clear that the fact-finding hearing must occur even if a parent does not appear, it is apparently not uncommon for circuit courts to skip an evidentiary hearing and fact-finding when a parent fails to appear for it. See Torrance P. v. Shirley E., 2006 WI 129, ___ Wis. 2d ___, 724 N.W.2d 623; Evelyn C.R. v. Wis. 2d 1, 629 N.W.2d 768. circuit court erred parental rights to Tykila 2001 WI 110, 246 Accordingly, I conclude that the in relying Rockey S., to on the petition to terminate fill the void the Waukesha in order. ¶53 have The sad part of the case is that this dispute could been resolved simply and 6 swiftly, thereby bringing No. permanency to Brianca's life. 2005AP2656.ssa All the corporation counsel had to do to satisfy Wis. Stat. § 48.415(10) in the instant case was to produce in the circuit court, as the circuit court suggested, a transcript of the Waukesha County proceedings or a corrected copy of the Waukesha order. clearly demonstrated one Either of these methods would have way or the other whether the prior termination of parental rights was on statutory grounds. ¶54 Because partial summary judgment was erroneous, I would reverse the circuit court order granting partial summary judgment and remand the matter to the circuit court to give the Department an opportunity to prove that the Waukesha County Circuit Court "ordered the termination of parental rights [to Nicole W.'s child Rockey] . . . on one or more of the grounds specified [in Wis. Stat. § 48.415(10)]." If the Department cannot offer such proof, then the circuit court must, as Nicole W.'s brief requests, hold a trial on Nicole W.'s fitness as a parent with respect to Brianca. ¶55 should In any event, the court's rewriting of the statute have ended the majority opinion. The statute, as rewritten by the majority opinion, disposes fully of the case. Nevertheless, the majority opinion reaches out to discuss and decide other issues. It tries to bolster its opinion, declaring, without any basis, an error in the order (majority op., ¶24), and relying on a presumption of the validity of a judicial proceeding (majority op., ¶¶22-23). that it is just as likely that 7 the order It seems to me was correct and No. 2005AP2656.ssa reflected an error at the proceedings as that the order was in error and the proceedings correct. ¶56 The majority opinion then wanders even more broadly and addresses collateral attacks on a prior judgment terminating parental rights (majority op., ¶¶27-28), although no such collateral attack has been made in the present case, and winds up with an unnecessary discussion of Nicole's Sixth Amendment right to counsel in the Waukesha court (majority op., ¶¶30-35). ¶57 these Even if I agreed with the mandate, I would not join parts of the majority opinion because they are not necessary to a decision in this case; I do not write to them now because they are not actually before the court. A court should not reach out and decide matters not before it. Less is often more when deciding cases before the court. "If an issue no matter how important or interesting is not squarely presented by a case, the court should not reach out to decide it. The court will get another chance particularly if the court notes the issue but does not express any opinion on it."6 ¶58 Supreme David M. Borden, Associate Justice of the Connecticut Court, offered the following advice on appellate decision making: "[W]e ought to decide only what the case fairly presents. Put another way, ordinarily we ought not reach out to 6 See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 DePaul L. Rev. 673, 685-86 (Spring 1994) (footnotes omitted). The Chicago Council of Lawyers conducted the evaluation to provide information to judges on how they are perceived by the Chicago bar and to provide information to lawyers and litigants practicing in the Seventh Circuit. 8 No. 2005AP2656.ssa decide what is not reasonably necessary to the decision, even though we are convinced that what we have to say in that regard is correct."7 ¶59 For the reasons set forth, I dissent. ¶60 I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR., join this opinion. 7 Hon. David M. Borden, Some Neutral Principles Revisited, 27 Conn. L. Rev. 1, 13 (Fall 1994). 9 No. 10 2005AP2656.ssa No. 11 2005AP2656.ssa No. 1 2005AP2656.ssa

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