Terminating Parental Rights when Visitation is Prohibited

In a matter of first impression anywhere (correct me if I’m wrong), the Wisconsin Supreme Court recently held that a statute which allowed termination of parental rights based on a judicial order which prohibited visitation was narrowly tailored to serve state’s compelling interest of protecting children from unfit parents.

The Wisconsin law states that a “[continual] denial of periods of physical placement or visitation” is a ground for terminating parental rights. A finding under the provision requires that:

(a) the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order, and

(b) at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

The parent argued that the law violates substantive due process because it does not require any evidence of parental unfitness. The no-contact orders denying physical placement or visitation are based on the best interest of the child rather than on a finding that the parent is unfit. Since these orders are the sole basis for a finding that grounds exist for terminating his parental rights, the statute is not narrowly tailored to meet a compelling state interest and violates his substantive due process right.

The court disagreed finding that only after multiple steps was the parent faced with a fact-finding hearing on whether this ground for terminating parental rights existed. The findings that are required for a court to proceed against a parent at each of the steps prior to the final step involve an evaluation of a parent’s fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under this TPR provision to amount to unfitness.

The court concluded that, on its face, the law is narrowly tailored to serve the state’s compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children’s welfare through stability and permanency in their lives.

Two judges dissented finding that no matter how you slice and dice the statutory scheme used in the present case, nowhere can be found a lower court’s finding of the parent’s individualized unfitness. The dissenters criticized the majority opinion for inferring unfitness when there was not an explicit finding of unfitness aside from a finding of a statutory ground. They found that the parent did not have an individualized judicial determination that he is an unfit parent. Under the statutory scheme, not only is such a determination unnecessary, but the parent was precluded from having a determination on that very issue.

Quoting from one of the dissenters: “The ramifications of the majority opinion in this case cannot be understated. A child may be taken away from a parent, in the best interests of the child and for reasons that have nothing to do with the unfitness of that parent. Conditions for return of the child can be ordered by the court, which simply cannot be met for reasons having nothing to do with the unfitness of the parent. At the expiration of one year, a parent may have his or her parental rights terminated absent any particularized showing of unfitness, simply because he or she cannot satisfy the conditions set by the trial court.”

No word on whether this case is headed to the United States Supreme Court, but I think the issue is ripe for review and could result in one of the most significant parental rights/child welfare decisions in decades. What do you think?

3 Replies to "Terminating Parental Rights when Visitation is Prohibited"

  • Daniel Lee
    March 29, 2005 (12:50 am)

    I think the issue is ripe for review and could result in one of the most significant parental rights/child welfare decisions in decades. What do you think?

    The sum of constitutional case law (from termination cases, grandparent visitation, abortion, etc) says the first component of due process substantive is a child must be in harm to the level of a state’s abuse statutes (the compelling state interest) prior to any state intervention in the parent-child relationship. If in such harm, the second component narrow tailoring applies (only the substantial harm is addressed, and in the most narrow way possible).

    In Troxel it was mentioned there might not need to be a harm standard, as the Washington Supreme Court had correctly held. That means the USSC is considering eliminating the first step of due process substantive. Not a good time to take a case to them about parental rights.

    Other courts, such as apparently the Wisconsin court here, also improperly apply the second component, narrow tailoring. Instead of only allowing state intervention to address the harm via the least intrusive means, they incorrectly hold narrow tailoring means addressing the compelling state interest.

    Taking a bad state supreme court decision to the present USSC, doesn’t sound like a good idea. Also, the post doesn’t give great confidence the writer understands established due process principles. Daniel Lee



  • Erik L. Smith
    March 31, 2005 (6:50 pm)

    Whether the Supreme Court will review the case is anybody’s guess. But this case reminds me of the dissent in In re Stillman (Ohio App. 2003, 11th Dist.). There the statute challenged was the 12 of 22 month prequisite for childs best interest to replace “unfitness” as the standard for terminating parental rights regarding a child in state custody.

    The majority found the statute constitutional, although unraised at trial. The dissent (a former ohio supreme court justice) argued that the law wrongly put the determination of unfitness in the hands of a state agency and not a court, and did so regardless of the reasons for why the child was in state custody. (“All one needed was a calender”)

    I agreed with that dissent, as I agree with the dissent in this case. Case workers should not be determining suitability (cumulatively determined or otherwise) and courts should not become case workers. Some will argue that the court is not really acting as a case planner under the Wisconsin statute because it is simply making a series of judicial determinations, presumably complained about by someone else.

    But the effect is the same. The parent denied visitation must, practically speaking, reunify according to the court’s standards. Here, it seems the court is the determiner of the validity of its own orders, without actually making the order that needs to be made–an individualized, and independent, finding on fitness. Termination of parental rights is the death penalty of family law. We should never send someone to that fate based solely on cumulative findings, any one of which, standing alone, would not suffice.

    The Wisconsin statute is but another sophistical attempt to circumvent the need to find unfitness. I do not see Troxel as foreboding. The “harm” application of which Mr. Lee spoke is inapposite. Troxel dealt with right of visitation for non-parent realtives who had not secured a visitation order (other than the order in question). The Wisconsin case features the termination of parental rights of an actual parent. This is not a bad time to request review by the Supreme Court.

  • Jim Nice
    April 7, 2005 (6:34 pm)


    Thank you for your efforts to keep us in touch with current issues related to child welfare law. This finding in Wisconsin law confirms for me again how decisions about children’s lives should not be made by the courts.

    Child welfare in this country too often uses the courts as the primary decision making tool. I once heard someone say that child welfare operates out of the “altar of the courts”. There are huge disadvantages to this, for children, their families, caseworkers, and the courts.

    I continue to be a strong supporter of Family Group Decision Making (FGDM) especially when children are not safe with their own parents. Practice and research is showing that when parents are offered FGDM in these circumstances, they usually choose it, although it is very difficult to do.

    With the help of a FGDM coordinator, they sponsor a family reunion, inviting all family members who care, to come together and make a concensus decision about the children. These FGDM gatherings typically are larger than any group that has gathered for these children at an agency or a court and contain many healthier members of the family. The decisions made by this group are much higher in quality, more extensive, and embedded with love than any made in the adversarial milieu of agencies and courts. Caseworkers who use FGDM universally support and praise these decisions. FGDM is a decision making process based on status, of those who care and want to help. Litigation is a decision making process based on contract and law. Most parents, even those in desparate straits, prefer FGDM.

    These are some of the reasons I believe FGDM will become the preferred practice in this country. It’s simple. It works. It benefits everyone involved with a child’s welfare. Our present child welfare system has some serious changes to make, not unlike the changes it has for so long demanded from families.

    Thanks for listening. Thanks for your good work.

    Jim Nice
    Family Unity Project
    50/843 5150