Brown County Department of Human Services v. S.K., 2023 WI App 27; case activity
A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of child neglect resulting in death under but “as a party to the crime.” In a decision recommended for publication, the court of appeals reversed, but it rejected Stephanie’s argument that an “as a party to the crime” conviction can never qualify as a “serious felony.”
This appeal turned 0n a question of statutory construction. Does an “as a party to a crime” conviction qualify as a “serious felony” under §48.415(9m)?
Section 48.415(9m) provides in part that “serious felony” means “any of the following:”
1. The commission of, the aiding or abetting of, or the solicitation, conspiracy or attempt to commit, a violation of s. 940.01, 940.02, 940.03 or 940.05 or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.01, 940.02, 940.03 or 940.05 if committed in this state . . .
3. The commission of a violation of s 948.21 or a violation of the law of any other state or federal law, if that violation would be a violation of [§] 948.21 if committed in this state, that resulted in the death of the victim.
The offenses in sub. 1 are 1st-degree intentional homicide, 1st-degree reckless homicide, felony murder, and 2nd-degree intentional homicide. Under the plain language of the statute, “Aiding and abetting” those crimes qualify as a “serious felony.”
The offense listed in sub. 3 is neglect of a child. Unlike sub. 1, sub. 3 does not say that “aiding and abetting” child neglect qualifies as a serious felony.
The court of appeals held that a conviction for neglect of a child resulting in death qualifies as a “serious felony” for purposes of §48.415(9m) only if the individual directly committed that offense. Opinion, ¶19. However, it rejected Stephanie’s argument that therefore “aiding and betting” child neglect can never qualify as a “serious felony.”
Under §939.05, entitled “parties to crime,” a person may be convicted “as a party to a crime” if he or she “directly commits the crime” in question. Wis. Stat. §939.05(2)(a). Opinion, ¶¶22-23. So when applying §48.415(9m)(b)3 what matters is “whether the person directly committed that crime, as opposed to aiding and abetting, soliciting, or conspiring to commit it.” Opinion, ¶23.
In this case, the circuit court granted partial summary judgment for the County based on only the complaint and judgment of conviction from Stephanie’s criminal case. They showed that she had been convicted of neglect of a child resulting in death, as a party to the crime. But they did not support a conclusion that, as a matter of law, Stephanie directly committed the offense of neglect of a child resulting in death.” Opinion, ¶28. It thus reversed and remanded the case for further proceedings.