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TPR – Substantive Due Process

Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision

Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.

Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right, ¶20. In this instance, termination was based on the statutory ground in § 48.415(4) (one-year elapsed since order denying contact), but given that such an order was preceded by various proceedings which reflected on the parent’s fitness, the termination did not violate due process:

¶32. Only after all the above described steps took place, was P.P. faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under § 48.415(4) involve an evaluation of a parent’s fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The full statutory scheme that precedes the implementation of § 48.415(4) must be evaluated as well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State’s compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children’s welfare through stability and permanency in their lives. In our view, P.P. has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty.

The point of contention is whether or not these prior steps explicitly required a finding of unfitness; the majority says they did, the dissenters say no, ¶¶73, 79. The danger identified by the dissenters is that once a no-contact order has been entered, then a “mandatory irrebuttable presumption” of unfitness follows after the lapse of one year, ¶87. No doubt. But keep in mind that P.P. pleaded no contest, and that his challenge was therefore necessarily up-hill (if for no other reason than that he had to show the statutory scheme unconstitutional); the court thus stressed:

¶25 … We do not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. However, P.P. pled no contest to the ground asserted to terminate his parental rights, and in so doing, he relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children. Accordingly, we do not reach the question of whether an as-applied challenge to the validity of a § 48.415(4) order will lie.6

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