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TPR based on prior child abuse conviction wasn’t unconstitutional

Racine County HSD v. L.R.H.-J., 2018AP2065, District 2, 3/6/19 (one-judge decision; ineligible for publication); case activity

L.R.H.-J. was convicted of child neglect in causing the death of her first child in 2005. In 2015 she had another child, “Baby J,” who was immediately taken from her and a CHIPS proceeding commenced. In 2017 her rights to Baby J were terminated, after the circuit court granted summary judgment at the grounds phase, citing §48.415(9m). The court of appeals rejects facial and as-applied constitutional challenges to the use of that statute against her with respect to Baby J.

L.R.H.-J. first argues §48.415(9m) is overbroad and vague, but the court of appeals holds the statute is “clear and precise” in its list of felonies that can serve as predicates and the requirement the prior offense be committed against one of the person’s own children. (¶¶10-11) As to the fact a long-past act can be invoked to find unfitness, without regard to the passage of time, the court finds ample protection against the arbitrary application of the rule in the procedural protections inherent in TPR proceedings, as illustrated by the facts of this case:

¶13     ….. As the department explains, it first filed a CHIPS petition—complete with its own procedural protections—which allowed birth mother almost two years to participate in services and demonstrate her parenting abilities and relationship with her child so that birth mother could be reunified with Baby J before the court ever considered whether birth mother was unfit under Wis. Stat. § 48.415(9m). Finding a parent unfit under § 48.415(9m) does not terminate parental rights; instead, it merely moves the process to the next phase. It was only after she failed to meet the terms of reunification that the department filed the TPR petition, and once the court found birth mother statutorily unfit, the court was then still required to find that termination was in the best interests of the child at the disposition phase. As the statute is tailored to the government’s interest in protecting children from unfit parents and birth mother has failed to overcome the presumption of constitutionality beyond a reasonable doubt, we conclude that § 48.415(9m) is not facially unconstitutional.

L.R.H.-J. also complaints the passage of time and her changes since then, including service of her sentence for the death of her first child, couldn’t be considered at her grounds trial because the circuit court granted summary judgment. These factors are relevant, the court of appeals agrees—but for disposition, not grounds. And they were considered by the circuit court here, so there’s no as-applied problem in this case. (¶¶14-15).

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