Oneida County Department of Social Services v. Nicole W.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 37. (<dissenting). The Department of Social Services' motion for *662partial summary judgment terminating Nicole W.'s parental rights to Brianca was based on a certified copy of a Waukesha County Circuit Court order terminating Nicole W.'s parental rights to another child, Rockey. The issue presented in the instant case is whether the Department was entitled, as a matter of law, to a partial summary judgment on the basis of the Waukesha order.

¶ 38. The text of Wis. Stat. § 48.415(10) clearly, explicitly, and plainly requires that the "prior involuntary termination of parental rights . . . shall be established by proving. . . that a court has ordered the termination of parental rights [to the other child] . . . on one or more of the grounds specified in this section."1

¶ 39. The Waukesha order terminating Nicole W.'s parental rights to her other child, Rockey, a copy of which is attached, does not satisfy the requirements of Wis. Stat. § 48.415(10). Everyone agrees, including, I am sure, the reader, that the order fails state the grounds upon which the termination was ordered.2

*663¶ 40. The majority opinion plugs the omission in the Waukesha order relating to Rockey by rewriting Wis. Stat. § 48.415(10). The majority opinion simply reads, the statutory words "ordered the termination of parental rights ... on one or more of the grounds specified in this section" out of the statute book.

¶ 41. The majority opinion interprets this statutory language as merely requiring that the prior termination be an involuntary termination; the ground of termination need not be stated. According to the majority opinion, "the last clause in § 48.415(10)(b) requires only that the prior termination be an involuntary termination and does not require proof of which grounds were the bases for that termination." Majority op., ¶ 21; see also ¶¶ 2, 36.3

¶ 42. By rewriting Wis. Stat. § 48.415(10)(b), the majority opinion can declare the Waukesha order sufficient even though the order does not specify any ground for terminating Nicole W's parental rights to the child. I disagree with the majority opinion. If the legislature had concluded that proof of a prior involuntary termination of parental rights was all that was needed it could have simply so stated in Wis. Stat. § 48.415(10). It did not.

¶ 43. I would not rewrite the text of the statute. I would apply the statute as written by the legislature, giving meaning to all of the words. The statute clearly states that a prior involuntary termination of parental rights to another child shall be established by proving *664that the prior court ordered termination on a ground specified in Wis. Stat. § 48.415. The Waukesha order relied upon by the Department did not satisfy this requirement, and therefore the Department's motion for partial summary judgment must fail as a matter of law.

¶ 44. Even if I were to accept the majority opinion's reading of the statute, the Waukesha order does not satisfy the statute. The Waukesha order is based on a default, not on any of the statutory grounds, as I explain below.

¶ 45. Recognizing the defect in the Waukesha order, the circuit court attempted to repair the Waukesha order by importing into the Waukesha order the grounds for termination stated in the petition for termination filed in Waukesha. I disagree with the circuit court's approach.

¶ 46. At the hearing on the motion for summary judgment in the present case, Nicole W. asserted, and the circuit court agreed, that the Waukesha order was defective and could not support the motion for summary judgment as a matter of law because the order did not state a statutory ground for termination.

¶ 47. Accordingly, the circuit court adjourned the hearing on the motion for summary judgment and permitted "the corporation counsel to obtain the rest of the file . . . ." The circuit court suggested various Waukesha County documents the corporation counsel might produce to cure the deficiency, such as the petition for termination and a transcript of the Wauke-sha County court hearings, and even proposed that the Department have the Waukesha court amend the order to correct it.4

*665¶ 48. When, at the motion hearing, the corporation counsel offered an uncertified copy of the termination petition filed in Waukesha County, the circuit court refused to accept it. The circuit court instructed, "[W]e should get a certified copy and we should also compare it with the order and we should give Waukesha County the opportunity to amend the order by, you know, having one of the boxes checked here."5

¶ 49. At the next hearing on the motion for partial summary judgment, the corporation counsel produced only a certified copy of the petition for termination of parental rights to Rockey filed in Waukesha County, which, as might be expected, stated a statutory ground for termination. The circuit court found that the peti*666tion was good enough to plug the hole in the Waukesha order. I disagree with the circuit court. There is no proof the ground for termination alleged in the petition was ever proven.

¶ 50. Although the form order provides the circuit court an opportunity to state that the matter was tried to a jury or to the circuit court and that one or more of the statutory grounds for termination was found, the completed Waukesha order in the instant case merely states that Nicole W. failed to appear and was in default. The spaces in which to indicate that a hearing was held and that fact-finding occurred remain blank on the form order.

¶ 51. The Waukesha order on its face violates chapter 48 of the statutes by relying only on default and not fact-finding. Before entering a default judgment in a termination of parental rights case, a circuit court must hold a fact-finding hearing and find by clear and convincing evidence, upon the evidence presented, that the grounds to terminate the defaulting parent's rights to the child have been proven, even when a parent fails to appear at all and defaults or fails to appear at a proceeding in disobedience to a court order. Evelyn C.R. v. Tykila S., 2001 WI 100, ¶¶ 24-25, 246 Wis. 2d 1, 629 N.W.2d 768.

¶ 52. The Waukesha order and the petition relating to Rockey upon which the Department relies do not establish that the circuit court held a fact-finding hearing or made the required findings. The only reasonable reading of the Waukesha order terminating Nicole W.'s parental rights to Rockey was that the order was entered on Nicole W's failure to appear and that no fact-finding hearing was held and no findings were made. Although this court has been clear that the fact-finding hearing must occur even if a parent does *667not appear, it is apparently not uncommon for circuit courts to skip an evidentiary hearing and fact-finding when a parent fails to appear for it. See Torrance P. v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623; Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768. Accordingly, I conclude that the circuit court erred in relying on the petition to terminate parental rights to Rockey to fill the void in the Waukesha order.

¶ 53. The sad part of the case is that this dispute could have been resolved simply and swiftly, thereby bringing permanency to Brianca's life. All the corporation counsel had to do to satisfy Wis. Stat. § 48.415(10) in the instant case was to produce in the circuit court, as the circuit court suggested, a transcript of the Waukesha County proceedings or a corrected copy of the Waukesha order. Either of these methods would have clearly demonstrated one way or the other whether the prior termination of parental rights was on statutory grounds.

¶ 54. Because partial summary judgment was erroneous, I would reverse the circuit court order granting partial summary judgment and remand the matter to the circuit court to give the Department an opportunity to prove that the Waukesha County Circuit Court "ordered the termination of parental rights [to Nicole W.'s child Rockey] ... on one or more of the grounds specified [in Wis. Stat. § 48.415(10)]." If the Department cannot offer such proof, then the circuit court must, as Nicole W.'s brief requests, hold a trial on Nicole W.'s fitness as a parent with respect to Brianca.

¶ 55. In any event, the court's rewriting of the statute should have ended the majority opinion. The statute, as rewritten by the majority opinion, disposes fully of the case. Nevertheless, the majority opinion *668reaches out to discuss and decide other issues. It tries to bolster its opinion, declaring, without any basis, an error in the order (majority op., ¶ 24), and relying on a presumption of the validity of a judicial proceeding (majority op., ¶¶ 22-23). It seems to me that it is just as likely that the order was correct and reflected an error at the proceedings as that the order was in error and the proceedings correct.

¶ 56. The majority opinion then wanders even more broadly and addresses collateral attacks on a prior judgment terminating parental rights (majority op., ¶¶ 27-28), although no such collateral attack has been made in the present case, and winds up with an unnecessary discussion of Nicole's Sixth Amendment right to counsel in the Waukesha court (majority op., ¶¶ 30-35).

¶ 57. Even if I agreed with the mandate, I would not join these parts of the majority opinion because they are not necessary to a decision in this case; I do not write to them now because they are not actually before the court. A court should not reach out and decide matters not before it. Less is often more when deciding cases before the court. "If an issue — no matter how important or interesting — is not squarely presented by a case, the court should not reach out to decide it. The court will get another chance — particularly if the court notes the issue but does not express any opinion on it."6

*669¶ 58. David M. Borden, Associate Justice of the Connecticut Supreme Court, offered the following advice on appellate decision making: "[W]e ought to decide only what the case fairly presents. Put another way, ordinarily we ought not reach out to decide what is not reasonably necessary to the decision, even though we are convinced that what we have to say in that regard is correct."7

¶ 59. For the reasons set forth, I dissent.

¶ 60. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR., join this opinion.

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Section 48.415(10) provides as follows:

Prior involuntary termination of parental rights to another child, which shall be established by proving all of the following:
(a) That the child who is the subject of the petition has been adjudged to be in need of protection or services under s. 48.13(2), (3) or (10).
(b) That, within 3 years prior to the date the court adjudged the child who is the subject of the petition to be in need of protection of services as specified in par. (a), a court has ordered the termination of parental rights with respect to another child of the person whose parental rights are sought to be terminated on one or more of the grounds specified in this section.

Observe that the order provides several boxes to be marked to indicate on which grounds the termination of parental rights was ordered. None was marked and no other reference to the statutory ground for termination appears.

Other paragraphs in the majority opinion repeat that it is only necessary that the prior termination be "involuntary," majority op., ¶ 20, and that "there is no need for the [Wauke-sha] order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b)." Majority op., ¶ 19.

The circuit court stated that the corporation counsel should "find out what the petition alleged and, perhaps, obtain *665a transcript of the proceedings at which the default order was entered. Presumably that was transcribed because I think it would have been in the ordinary course of things.. .."

The circuit court further explained that it could not "determine from the current order what the grounds really were. What was Nicole W defaulting to? What did the petition allege? That's really what we have to have.... We don't know really who the scrivener of the order was...."

The circuit court suggested that "it may well be that we should really have an amended order out of Waukesha County.... [I]t would be preferable to let Waukesha County correct its apparent inadvertent error."

The circuit court concluded its instructions to the corporation counsel by saying that "what we have to do here is come back here and find out at that point whether the basis that was stated — or bases stated were those mentioned in the statute. So we can't decide it today and we should have that information supplied."

The circuit court was referring to the boxes on the order terminating parental rights which could be marked to indicate on which statutory grounds the order was granted. None of the boxes was checked here.

See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 DePaul L. Rev. 673, 685-86 (Spring 1994) (footnotes omitted). The Chicago Council of Lawyers conducted the evaluation to provide information to judges on how they are perceived by the Chicago bar and to provide information to lawyers and litigants practicing in the Seventh Circuit.

Hon. David M. Borden, Some Neutral Principles Revisited, 27 Conn. L. Rev. 1, 13 (Fall 1994).