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TPR – Default Judgment as to Grounds – Sufficiency of Evidence; § 48.415(6) – Constitutional Challenge, Vagueness

Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12

court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity

Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default. ¶¶14-29.

Grounds were based on failure to satisfy conditions for return set by a CHIPS order, and failure to assume parental responsibility. Sophia argues on appeal that the County focused its proof on grounds for terminating Sophia’s two older children and thus failed to: introduce the CHIPS order on this child; or establish the allegations contained in the termination petition on this child. The court rejects the idea that, in order to support grounds for termination, a CHIPS order must be introduced into evidence. The court also holds that the County witness’s perception that the allegations in the two petitions (this child and his older siblings) were sufficiently similar that the trial court’s reliance on the latter sufficed. Moreover, the trial court repeatedly invited Sophia to request reconsideration of the default, but for unexplained reasons she never did, ¶29.

¶30      Sophia next makes a facial challenge to the constitutionality of Wis. Stat. § 48.415(6), arguing that it is void for vagueness.[3] The County responds that Sophia’s challenge: (1) is moot as she was also found unfit under continuing CHIPS, and that only one ground is necessary to satisfy Wis. Stat. § 48.415(2); (2) is forfeited because she did not raise it with the trial court; and (3) fails as a matter of law because (a) Sophia improperly shifts the burden of proving the unconstitutionality of the statute onto the Department, and (b) Sophia’s conduct demonstrates that she did not assume parental responsibility.  Sophia replies that her vagueness challenge is not forfeited because it goes to the court’s subject matter jurisdiction, citing State v. Bush, 2005 WI 103, ¶¶14-19, 283 Wis. 2d 90, 699 N.W.2d 80, that it is not moot because she contests the validity of the continuing CHIPS grounds as well, that she has met her burden of demonstrating that §48.415(6) is vague and therefore, facially unconstitutional, and finally, that she is not required to prove the statute is void as applied.

¶31      We agree with Sophia that she did not forfeit her ability to challenge the facial constitutionality of Wis. Stat. § 48.415(6) by not first raising it to the trial court.  Where the challenge is a facial challenge to the constitutionality of a law, it goes to the heart of subject matter jurisdiction and will be considered even if not first raised in the circuit court.  Bush, 283 Wis. 2d 90, ¶19 & n.8; see alsoState v. Campbell, 2006 WI 99, ¶45, 294 Wis. 2d 100, 718 N.W.2d 659 (“if a statute is unconstitutional on its face, any judgment premised upon that statute is void”).  However, as discussed above, the trial court found, and we have affirmed, that Sophia was unfit on two grounds:  continuing CHIPS and failure to assume parental responsibility.  Because Wis. Stat. § 48.415 requires a finding on only one ground to determine that a parent is unfit, this is dispositive of Sophia’s challenge to the termination of her parental rights[4] and we will not address her constitutional challenge.  See State v. Jipson, 2003 WI App 222, ¶17 n.5, 267 Wis. 2d 467, 671 N.W.2d 18 (“As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged.”) (quoting Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938)).

A different single-judge panel recently upheld § 48.415(6) against a void-for-vagueness challenge, in Chippewa County Dept. of Human Services v. James A., 2011AP2613, 2/7/12.

¶30 n. 3:

 In reviewing the briefing and record in this case, we note that the only notice provided to this court of Sophia’s notice to the State Attorney General as required by Wis. Stat. § 806.04(11) was by a copy of Sophia’s one sentence letter to Assistant Attorney General Gregory Weber sent to the clerk of courts.  It is routine that appellants seeking to challenge the constitutionality of a statute point out in their briefing to this court where in the record they have demonstrated that they have provided the requisite notice to the State of their challenge.  No mention was made at all of fulfilling the notice requirement in either Sophia’s opening or reply brief.

This footnote probably wouldn’t warrant mention, except for the background, which the court curiously omits. The court originally held that Sophia had waived the challenge, by failing to provide notice to the AG. Sophia, the public record indicates then moved for reconsideration (see case activity link, 2/23/12 entry); it’s reasonable to assume that Sophia thereby directed the court’s attention to the fact that, as new footnote 3 acknowledges, notice indeed was provided the AG. In any event, the court next issued an “errata sheet” which replaced the waiver holding with ¶¶30-31 quoted above, and included a new footnote 3. As to which: there is no known requirement that appellants “point out in their briefing to this court where in the record they have demonstrated that they have provided the requisite notice to the State of their challenge.” Nonetheless, if the court considers – and prefers – such reference to be the convention, then that is probably how the litigant should regard it as well. Note as well that the required notice on the AG can be made at the appellate level, In Matter of Estate of Fessler, 100 Wis. 2d 437, 444, 302 N.W.2d 414 (1981) (“In this case we conclude that the failure to notify the attorney general of the probate court proceedings was a defect which was cured by virtue of the subsequent invitation to the attorney general to participate in the court of appeals’ proceedings.”). Compare, In re Paternity of Roger, 250 Wis.2d 747, 755 n. 4, 641 N.W.2d 440 (Ct. App. 2002) (“failure to notify the attorney general does not create a jurisdictional bar to our review, because this proceeding is not an action for declaratory judgment”; court on its own invited AG to submit brief).

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