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?