Wis. Stat. § 48.415(5) is not unconstitutionally vague and does not violate due process
As applied to Renee D., the two elements for the “child abuse” ground under § 48.415(5) are: 1) the parent has shown a pattern of physical or sexual abuse that is a substantial threat to the health of the child who is the subject of the petition; and 2) the parent has caused death or injury to a child resulting in a felony conviction. Renee’s vagueness argument cited the lack of definition of or guidance about the terms “pattern,” “substantial,” and “threat to the health” as well as the lack of an intent requirement. The court disagrees:
¶12 Renee’s argument does not undermine the strong presumption of constitutionality. A “pattern” is more than one instance. See Monroe Cnty. v. Jennifer V., 200 Wis. 2d 678, 684, 548 N.W.2d 837 (Ct. App. 1996). Judges and jurors are routinely asked to apply the qualifier “substantial.” See, e.g., Wis JI—Civil 1500 (regarding cause, was negligence a substantial factor in producing injury); Wis JI—Criminal 2652 (for criminal negligence for reckless driving causing bodily harm, actor should realize conduct creates substantial risk of death or great bodily harm to another). We do not find the lack of a scienter requirement troublesome; even criminal statutes are not required to include a scienter element. See Wis. Stat.§ 939.23 (noting particular statutory language that indicates a scienter requirement). Furthermore, we note that the underlying criminal act—child abuse—is an intentional crime. See Wis. Stat. § 948.03(2)(b). “Threat to the health” is a phrase that a person, judge or juror of ordinary intelligence can understand. Additionally, the jury instructions clarify that “health” includes physical, emotional, or mental health. Wis JI—Children 340. While the statute does allow for variance in cases, it is not so ill-defined as to defy discernment. See State v. Barman, 183 Wis. 2d 180, 198, 515 N.W.2d 493 (Ct. App. 1994) (“We only require a fair degree of definiteness to uphold a statute; it will not be voided merely by showing that the boundaries of prescribed conduct are somewhat hazy.”). Ultimately, Renee has not convinced us that the statute’s prohibition of a pattern of abusive behavior that poses a substantial threat to the health of a child is so vague as to defy compliance and enforcement.
Renee’s due process claims is that § 48.415(5)(a) creates an irrebuttable presumption that a person who is convicted of child abuse is an unfit parent for all future children, thus relieving the government of its burden of proof on an essential fact. Renee’s argument is premised on Jerry M. v. Dennis L.M., 198 Wis. 2d 10, 17-18, 542 N.W.2d 162 (Ct. App. 1995), which (according to the court) Renee interprets to require that the abusive behavior was a threat to the child prior to the felony conviction. (¶¶14-16). The court of appeals reads Jerry M. as saying only that the threat need not be “present and continuing,” and that the pattern of behavior can be established prior to the conviction. (¶16). Because Jerry M. is ultimately about the relevant time period for establishing the pattern of abusive behavior, it does not relieve the state from proving that the parent has exhibited a pattern of abusive behavior that is a substantial threat to the child who is the subject of the petition. (¶16).
Propriety of summary judgment
Because Renee did not contest the petition’s allegations concerning the conduct that established the pattern of abusive behavior that was a substantial threat to the child, the circuit court appropriately entered partial summary judgment on the child abuse grounds. Renee argued that child abuse grounds under § 48.415(2) are “fact intensive” and thus not amenable to summary judgment, citing Steven V. v. Kelley H., 2004 WI 47, ¶36, 271 Wis. 2d 1, 678 N.W.2d 856. Yet Steven V. also held that “partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue of material fact regarding the asserted grounds for unfitness.” Id., ¶53. The court of appeals concludes this is a case with no genuine issue of material fact, saying Renee neither objected to the form or content of what she argues on appeal was a facially inadequate summary judgment pleading (¶¶20-21) nor contested the facts on which the Department relied.
It is clear from the decision that Renee’s brief asserted she did dispute the County’s allegations in the trial court, but the court of appeals reads her affidavit opposing summary judgment as averring only facts about her attempts to put her life in order—which is relevant to disposition, not the alleged grounds—while remaining silent regarding her past child abuse and its alleged threat to Malachi. (¶¶13, 21).