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Defense win: Continuing denial of physical placement ground unconstitutional as applied in case involving indigent parent

B.W. v. S.H., 2021AP43 & 2021AP44, District 3, 6/29/21 (one-judge decision; ineligible for publication); case activity

Under the facts of this case, terminating S.H.’s parental rights on continuing denial of physical placement grounds under § 48.415(4) violated his right to substantive due process because his indigency precluded him for seeking changes in the physical placement order.

S.H. stipulated in his child support case to a temporary denial of periods of placement of his children until a reunification plan could be established. Preparing a plan required a guardian ad litem, which B.W., the children’s mother, originally paid for. But when S.H. failed to cooperate or make contact with the GAL, the court ordered S.H. to pay a $1,000 GAL fee and said there would be no change of placement hearing until he paid the fee. S.H. nonetheless made attempts to get a change of placement hearing, and sought to establish his indigency, but not until almost 5 years had passed did the court finally waive the G.A.L. fee. Before S.H. met with the GAL or asked for a placement hearing, B.W. filed a TPR petition and moved for, and was granted, summary judgment on the ground of continuing denial of physical placement. (¶¶3-9).

Under these circumstances, application of  § 48.415(4) to S.H. deprived him of substantive due process:

¶18   Substantive due process rights protect against a state act that is arbitrary, wrong or oppressive, regardless of whether the procedures applied to implement the action were fair. [Dane County DHS v.] P.P., [2005 WI 32,] 279 Wis. 2d 169, ¶19[, 694 N.W.2d 344]. The strict scrutiny standard of review applies to as-applied substantive due process challenges to Wis. Stat. § 48.415(4), and it requires that the government action to terminate S.H.’s parental rights was narrowly tailored to meet the compelling interest of protecting children from unfit parents.7 See Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶41, 293 Wis. 2d 530, 716 N.W.2d 845. A party challenging the constitutionality of a statute as applied must show beyond a reasonable doubt that the statute is unconstitutional as applied to the specific facts at hand. Mayo v. Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶24, 27, 383 Wis. 2d 1, 914 N.W.2d 678.


¶21   …[T]he United States Supreme Court has held that in TPR proceedings, a parent’s access to the judicial system cannot “turn on [one’s] ability to pay.” M.L.B. v. S.L.J., 519 U.S. 102, 124 (1996). Because it concluded that TPR decrees “work[] a unique kind of deprivation,” the court “place[d] decrees forever terminating parental rights in the category of cases in which the State may not ‘bolt the door to equal justice.’” Id. at 118, 124 (citations omitted). Here, S.H. was actively and repeatedly denied the ability to schedule a hearing to regain placement of his children, despite his indigence, and despite his efforts to obtain a hearing. The fee imposed on S.H. conditioned his access to the judicial system on his ability to pay, which is impermissible.


¶23  Even though the circuit court in this case eventually waived S.H.’s GAL fee, affording him roughly a two-month window in which to schedule a hearing, the fee it had until then imposed was still an impermissible barrier to the courts for several years that, as in Olmsted [v. Circuit Court for Dane County, 2000 WI App 261, 240 Wis. 2d 197, 622 N.W.2d 29], violated S.H.’s due process rights during the time it was in effect. We note that by the time the court waived S.H.’s obligation to pay the $1,000 GAL fee, the one-year deadline under Wis. Stat. § 48.415(4)(b) to obtain modification had long since passed. Requiring a party to pay a GAL fee for past legal services as a result of his or her misconduct may be permissible under a court’s inherent authority to issue sanctions. See Schultz v. Sykes, 2001 WI App 255, ¶10, 248 Wis. 2d 746, 638 N.W.2d 604. However, preventing an indigent party from scheduling a hearing with the court until a fee is paid at the outset is not permissible, as it infringes on that party’s due process right to access the courts. Such access is “an essential ingredient of the constitutional guarantee of due process.” Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353 (1992).

¶24   Accordingly, under the specific facts of this case, the circuit court’s application of Wis. Stat. § 48.415(4) to S.H. violated his right to substantive due process because the court found him to be an unfit parent without any consideration that his indigence—which resulted in the lengthy bar from the courtroom—was the reason for the continuing denial of his ability to seek changes to his placement. As applied to S.H., the continuing denial of physical placement ground was not narrowly tailored to meet the compelling interest of protecting S.H.’s children from an unfit parent, because the circuit court failed to consider these relevant factors.

Note that B.W. argued generally for rational basis review, rather than strict scrutiny, but the court says the GAL fee can’t pass muster under either rational basis or strict scrutiny review. (¶18 n.7).

S.H. also argued that § 48.415(4) is facially invalid because it violates equal protection because it doesn’t require proof that, unlike an order entered in a juvenile court proceeding (e.g., a CHIPS proceeding), a placement order in a family court case like S.H.’s doesn’t require a warning that being denied physical placement for a year can lead to a TPR proceeding. The court holds that the two classes of parents created by this difference are not similarly situated, as the juvenile court cases involve “significant and mandatory state action and procedures” while family court cases involve discretionary action by the other party, not the state or the court. (¶¶10-15). The court also rejects an as-applied equal protection claim, given the validity of the legislature’s distinction between juvenile and family court cases. (¶16).

{ 1 comment… add one }
  • Curtis R Daye May 15, 2022, 5:51 pm

    Is the use of a Parolee Criminal Informer legal in Wis. ?
    Is the use of a Prison Criminal Informer legal in Wis/ ?

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