AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 20, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1655 Cir. Ct. No. 2020TP5
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.C., A PERSON UNDER THE
AGE OF 18:
SHEBOYGAN COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
E.C.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Sheboygan County:
ANGELA W. SUTKIEWICZ, Judge. Affirmed.
No. 2021AP1655
¶1 NEUBAUER, J.1 E.C. appeals the circuit court’s order terminating
his parental rights to K.C. He contends that his constitutional rights were violated
because he was not included in the child in need of protection or services (CHIPS)
proceedings involving K.C. or this termination of parental rights (TPR) proceeding
prior to the time he was determined to be the father of K.C., his nonmarital child.
The circuit court found that E.C. had abandoned K.C. and rejected his good cause
challenge. Because we conclude that E.C. had no constitutionally protected liberty
interest in his parental rights and he received the process he was due, we affirm.
BACKGROUND
¶2 The facts relevant to the resolution of this appeal are undisputed. On
March 9, 2017, the Manitowoc County Department of Health and Human Services
filed a petition for child in need of protection or services for the unborn child of
N.G. Because N.G., the mother of K.C., was married to J.G. at the time of K.C.’s
birth, J.G. was the presumed father of K.C.2 K.C. was born on April 3, 2017, and
on May 5, 2017, the circuit court entered a temporary physical custody order
placing her in the care of her maternal grandmother.
¶3 On June 9, 2017, the circuit court held a hearing at which it found
K.C. to be a child in need of protection or services and entered a dispositional
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
WISCONSIN STAT. § 891.41 states in relevant part:
(1) A man is presumed to be the natural father of a child if any of
the following applies: (a) He and the child’s natural mother are
or have been married to each other and the child is conceived or
born after marriage and before the granting of a decree of legal
separation, annulment or divorce between the parties.
2
No. 2021AP1655
order continuing K.C.’s placement outside the home of N.G. and J.G. and with
K.C.’s grandmother. TPR warnings were attached to the dispositional order and
explained to N.G. at the hearing. Neither J.G. nor E.C. were present at the June 9
hearing. Though E.C. had been alleged to be K.C.’s father since before she was
born, E.C. was not included in the CHIPS proceeding and thus did not receive the
dispositional order or TPR warnings. In December 2017, venue for the CHIPS
proceeding was transferred from Manitowoc County to Sheboygan County.
¶4 On August 13, 2018, the Sheboygan County Department of Health
and Human Services (the County) filed another CHIPS petition, and on
December 14, 2018, a CHIPS dispositional order was entered continuing K.C.’s
placement outside the home of N.G. and J.G. E.C. was not included in this second
CHIPS proceeding.
¶5 On April 15, 2020, the County filed a petition seeking to terminate
N.G.’s and J.G.’s parental rights.
¶6 On October 7, 2020, the marital presumption that J.G. was K.C.’s
father was overcome in a separate Sheboygan County legal proceeding.
¶7 On October 23, 2020, the County filed and served an amended TPR
petition, naming E.C. as a party, seeking to terminate N.G. and E.C.’s parental
rights, and identifying E.C. as an “alleged” father and K.C. as a nonmarital child.3
The County alleged two grounds for termination against E.C.: (1) abandonment
3
The termination of N.G.’s parental rights is not before this court in this appeal. J.G.
was no longer included in the proceeding after the marital presumption was overcome and the
amended TPR petition was filed on October 23, 2020.
3
No. 2021AP1655
under WIS. STAT. § 48.415(1)(a)3.4; and (2) failure to assume parental
responsibility under § 48.415(6)(a). The County did not assert the continuation of
the CHIPS proceeding as a basis for termination of E.C.’s parental rights. See
§ 48.415(2).
¶8 The amended petition alleged that K.C. was removed from N.G.’s
care in May 2017 and that she had been placed with foster parents in
November 2017, where she remained up to the time of the amended petition. The
County alleged that E.C. knew that K.C. was in foster care and had no contact
with K.C. over the past three years.
¶9 At the first hearing on the amended petition, E.C. was advised of his
rights to consult with an attorney and contest the petition. Once E.C. had counsel,
the court asked E.C. if he wanted a trial by jury. Before E.C. became a party, the
circuit court delayed the proceeding so that E.C. could exercise whatever rights he
had in the event the marital presumption was overcome.
¶10 The County moved for summary judgment. By that time, based on
DNA test results, E.C. was determined to be the biological father of K.C. The
undisputed evidence established that E.C. had failed to visit or communicate with
4
WISCONSIN STAT. § 48.415(1)(a)3. states that abandonment shall be established by
proving that “[t]he child has been left by the parent with any person, the parent knows or could
discover the whereabouts of the child and the parent has failed to visit or communicate with the
child for a period of 6 months or longer.” Under § 48.415(1)(b):
Incidental contact between parent and child shall not preclude
the court from finding that the parent has failed to visit or
communicate with the child under par. (a)2. or 3. The time
periods under par. (a)2. or 3. shall not include any periods during
which the parent has been prohibited by judicial order from
visiting or communicating with the child.
4
No. 2021AP1655
K.C. since November 15, 2017. E.C. knew that K.C. was initially placed with the
child’s maternal grandmother and that she had later been placed in a foster home
because he had communication with the County and he attended a CHIPS hearing
on August 8, 2018.
¶11 In addition, E.C. failed to provide any facts to show that he provided
for K.C. financially and emotionally or that he was involved in providing for
K.C.’s daily needs.5 E.C. did not file a declaration of parental interest. E.C. did
write a letter asking Sheboygan County social workers to help him establish
paternity, but failed to respond to the County’s repeated efforts encouraging him
to establish paternity (in February, May, and June of 2018). Ultimately, there are
no facts to show that E.C. took legal steps to assert his paternity until K.C. was
more than a year old.
¶12 The circuit court rejected E.C.’s “good cause” defense—that factors
beyond his control prevented him from communicating or visiting K.C.6
Specifically, the court rejected E.C.’s argument that the failure to include him in
the CHIPS proceeding denied him the opportunity to visit or communicate with
K.C. The court noted that E.C. was not subject to the CHIPS order and that no
other court order prohibited him from communicating with K.C. After the marital
presumption was overcome in October 2020, E.C. still failed to communicate with
5
E.C. contends that he assisted N.G. during her pregnancy and assisted with K.C. after
she was born in April 2017. However, it is undisputed that he was incarcerated as of
April 28, 2017, at which point he stopped communicating with the Manitowoc County
Department of Health and Human Services.
6
The statutory ground for abandonment contains a “good cause” affirmative defense that
may be established upon proof by a preponderance of evidence that the parent had good cause for
failing to visit the child, or had good cause for failing to communicate with the child and, if the
child is an infant, that the parent communicated about the child with the person having custody of
the child or had good cause for failing to communicate about the child with the person having
custody of the child. WIS. STAT. § 48.415(1)(c).
5
No. 2021AP1655
K.C. at any point up to the hearing on the summary judgment motion on
April 5, 2021, a period longer than six months. The circuit court also found that
nothing prevented E.C. from communicating with the foster parents, asking to see
the child, or “even just send[ing] her a card or a gift.”
¶13 Based upon these undisputed facts, the circuit court found grounds
for abandonment for more than six months under WIS. STAT. § 48.415(1)(a)3. In a
subsequent hearing, the court determined that it was in K.C’s best interest to have
E.C.’s parental rights terminated. On May 4, 2021, four years after K.C. was
removed from N.G.’s care, the court terminated E.C.’s parental rights.
¶14 In a post-termination motion, E.C. sharpened his challenge to
termination based on his contention that he should have been included in the
CHIPS proceeding. At a hearing on the motion, the circuit court noted that the
grounds for abandonment under WIS. STAT. § 48.415(1)(a)3. were not related to
the proceeding in which K.C. was determined to be a child in need of protection or
services. The CHIPS disposition was not an element of abandonment in the case.
The court reiterated that the grounds for abandonment were undisputed and that
nothing prevented E.C. from communicating or visiting K.C.
¶15 E.C. appeals.
DISCUSSION
¶16 On appeal, E.C. invokes the same facts that he contended below
constituted good cause under WIS. STAT. § 48.415(1)(c), but here he reframes
them in a constitutional context. He argues that as the biological father of K.C., he
had a constitutionally protected liberty interest in a relationship with her that was
terminated without due process in violation of the Fourteenth Amendment. E.C.
6
No. 2021AP1655
contends that the finding of abandonment was unconstitutional because he was not
allowed to participate in the CHIPS proceedings, and thus he was not afforded
certain procedural protections. Specifically, E.C. contends that he, rather than
J.G., should have received copies of the CHIPS dispositional orders, with the
conditions for return and TPR warnings. Had E.C. been allowed to participate in
the CHIPS proceedings, he argues, he would have been able to visit K.C. and avail
himself of services that might later have precluded a finding of abandonment.
Instead, his exclusion from the CHIPS proceedings prevented him from contacting
K.C., which created the grounds for abandonment later used to terminate his
parental rights. He also argues, for the first time on appeal, that his due process
rights were violated in the TPR proceeding because he was not included in that
proceeding before the marital presumption was overcome. We reject E.C.’s
challenges.
Standard of Review
¶17 E.C.’s claims present questions of constitutional and statutory
interpretation. Whether a parent has made a showing of a constitutionally
protected liberty interest in his parental connection to his child is a question of
constitutional fact we review de novo. See Lehr v. Robertson, 463 U.S. 248, 261
(1983); W.W.W. v. M.C.S., 161 Wis. 2d 1015, 1026, 468 N.W.2d 719 (1991). The
interpretation of statutes and their application to uncontested facts are also
questions of law we review independently. VanCleve v. City of Marinette, 2003
WI 2, ¶17, 258 Wis. 2d 80, 655 N.W.2d 113.
E.C.’s rights
¶18 In order to determine what process is necessary in a termination of
parental rights proceeding, we must first assess the “precise nature of the private
7
No. 2021AP1655
interest” that is at issue. Lehr, 463 U.S. at 256. Thus, we first address whether
E.C. had a constitutionally protected liberty interest in his parental relationship
with K.C. E.C.’s argument rests on the premise that his biological connection to
K.C. gave rise to a constitutionally protected liberty interest. That premise is
contrary to well-established precedent.
¶19 In W.W.W., the Wisconsin Supreme Court adopted the reasoning
developed by the United States Supreme Court in a line of cases analyzing
parental rights, which linked the existence of a protected liberty interest to the
level of commitment and responsibility that a putative father assumes towards his
child. W.W.W., 161 Wis. 2d at 1026-27 (citing Michael H. v. Gerald D., 491 U.S.
110 (1989); Lehr, 463 U.S. 248; Caban v. Mohammed, 441 U.S. 380 (1979);
Quilloin v. Walcott, 434 U.S. 246 (1978); and Stanley v. Illinois, 405 U.S. 645
(1972)); see also Randy A.J. v. Norma I.J., 2004 WI 41, ¶¶16-20, 270 Wis. 2d
384, 677 N.W.2d 630; L.K. v. B.B., 113 Wis. 2d 429, 447-48, 335 N.W.2d 846
(1983).
¶20 As the United States Supreme Court and the Wisconsin Supreme
Court have made clear, a biological link to a child does not, by itself, give rise to a
constitutionally protected liberty interest in a putative father’s paternity. See Lehr,
463 U.S. at 261; W.W.W., 161 Wis. 2d at 1031-32. Rather, the liberty interest
arises only if the putative father has established an actual relationship with the
child and assumes parental responsibility for the child. W.W.W., 161 Wis. 2d at
1031-32. Minimal contact with a child is insufficient to establish a liberty interest
in paternity. See id. at 1029.
¶21 As explained by the United States Supreme Court:
8
No. 2021AP1655
The difference between the developed parent-child
relationship that was implicated in Stanley and Caban, and
the potential relationship involved in Quilloin and [Lehr],
is both clear and significant. When an unwed father
demonstrates a full commitment to the responsibilities of
parenthood by “com[ing] forward to participate in the
rearing of his child,”… his interest in personal contact with
his child acquires substantial protection under the due
process clause. … But the mere existence of a biological
link does not merit equivalent constitutional protection.
The actions of judges neither create nor sever genetic
bonds. “[T]he importance of the familial relationship, to
the individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of
daily association, and from the role it plays in ‘promot[ing]
a way of life’ through the instruction of children as well as
from the fact of blood relationship.”
Lehr, 463 U.S. at 261 (second, third, and fourth alterations in original; citations
omitted).
¶22 In Randy A.J., our supreme court determined that a putative father,
Brendan, did not have a constitutionally protected liberty interest in his putative
paternity despite tests showing a 99.99% probability that he was the child’s
biological father because he had not established a “substantial relationship” with
the child. Randy A.J., 270 Wis. 2d 384, ¶¶2, 19-20. The child’s mother had kept
secret from her husband the fact that she and Brendan had an affair while she was
married. Id., ¶3. The court found Brendan failed to establish a “substantial
relationship” with his child because he did not take affirmative steps to assume
parental responsibilities. Id., ¶¶19-20. Specifically, Brendan took no steps to
establish paternity until the child was fifteen months old, he did not provide for the
child’s emotional or financial support, and he was uninvolved in providing for the
child’s daily needs. Id. Based on those facts, the court concluded that Brendan
had no constitutionally protected liberty interest in maintaining his parental status
to the child. Id.
9
No. 2021AP1655
¶23 Here, the facts supporting the circuit court’s determination that E.C.
had abandoned K.C. also, as in Randy A.J., establish that he lacks a “substantial
relationship” with her. There are no facts to show that E.C. provided for K.C.
financially and emotionally or was involved in providing for K.C.’s daily needs.
He took no legal steps to assert his paternity until K.C. was over a year old. E.C.
knew that K.C. was first placed with her maternal grandmother, and shortly
thereafter and for several years up through the termination proceeding, with foster
parents. The circuit court found that nothing prevented him from communicating
with the foster parents, asking to see the child, or even “just send[ing] her a card or
a gift.” E.C. does not dispute that he failed to visit or communicate with K.C.
since November 2017.
¶24 Nevertheless, E.C. points to the fact that he was told that the County
could not initiate contact between him and K.C. before a determination that the
marital presumption was overcome. He also points to a notation in the minutes of
a hearing in the CHIPS proceeding that he had no rights to K.C. at that time. As
did the circuit court, we find these facts unavailing. That E.C. had not yet
overcome the marital presumption did not preclude him from initiating contact
with K.C.7 As the circuit court noted, “[E.C.] cannot blame the Department for his
lack of initiative in communicating with the child” and waiting to establish
paternity. E.C. points to no facts to show that he attempted to and was prevented
from visiting or communicating with K.C. and establishing a substantial
relationship with her.
7
The minutes from the June 9, 2017 hearing upon which E.C. relies stated that he had no
rights until the marital presumption was overcome. We agree with the circuit court that these
minutes did not constitute a judicial order preventing him from having contact with K.C. The
minutes merely reflected the legal status of E.C. in regard to K.C.
10
No. 2021AP1655
¶25 Seeking to show that the court erred in denying his “good cause”
defense based on factors beyond his control, E.C. contends that, statutorily, he
should have been involved in the CHIPS proceeding prior to October 7, 2020,
when the marital presumption was overcome. We disagree.
¶26 As the circuit court noted, the grounds for abandonment under WIS.
STAT. § 48.415(1)(a)3. were not related to the proceeding in which K.C. was
determined to be a child in need of protection and services. The CHIPS
disposition was not an element of abandonment in this case.8 E.C. provides no
basis for, nor does he appear to be pursuing, a collateral attack on the earlier
CHIPS proceedings. Rather, he repeats his contention that the failure to include
him in the CHIPS proceedings provides “good cause” for his failure to establish a
substantial relationship with K.C.
¶27 We reject this argument for two reasons. First, as discussed above,
nothing about the CHIPS proceedings, or the fact that E.C. was not involved,
precluded E.C. from reaching out to visit and communicate with K.C.
¶28 Second, we do not agree that E.C. was entitled to receive the CHIPS
dispositional orders, TPR warnings, and conditions for return. Under WIS. STAT.
§ 48.02(13) the word “parent” means “a biological parent,” but a man is presumed
to be the biological father of a child conceived or born after marriage to the child’s
natural mother. See WIS. STAT. § 891.41(1)(a). Thus, during the CHIPS
proceedings in 2017 and 2018, K.C. was presumed to be the marital child of N.G.
and J.G. This presumption was not overcome during the CHIPS proceedings.
8
Continuing need of protection or services is a ground for abandonment under WIS.
STAT. § 48.415(2), but as we have already noted, the County did not assert, and the circuit court
did not find, grounds for abandonment under this subsection.
11
No. 2021AP1655
Thus, E.C. has not shown that he was entitled to be included in the CHIPS
proceedings. See WIS. STAT. § 48.27(3)(b)1.b. (requiring notice of CHIPS petition
to be given to “person alleged to the court to be the father of the child” only “if the
child is a nonmarital child”).
¶29 We further note that “parent” also includes a person conclusively
determined from genetic test results to be the father, which did not occur until
after the CHIPS dispositional orders were entered. See WIS. STAT. § 767.804.
E.C. has not provided any other statutory basis for inclusion, such as filing a
declaration of parental interest. See WIS. STAT. § 48.27(5) (limiting persons that
court must attempt to provide notice of CHIPS proceeding to: (1) “any person
who has filed a declaration of paternal interest;” (2) “any person conclusively
determined from genetic test results” to be the child’s father; (3) “any person who
has acknowledged paternity of the child under [WIS. STAT. §] 767.805(1);” and
(4) “any person who has been adjudged” to be the child’s father in a judicial
proceeding and has not had parental rights terminated); WIS. STAT. § 48.355(2)(d)
(putative parent not included in list of persons who are to receive copy of
dispositional order); WIS. STAT. § 48.356 (imposing duty to warn of grounds for
termination of parental rights only on parents who appear in court).
¶30 Likewise, as regards an argument E.C. makes for the first time on
appeal, the County did not err by not including E.C. in the TPR proceeding until
the marital presumption was overcome. See WIS. STAT. § 48.42(2)(b)2. (service of
TPR petition on “person…alleged to the court to be the father of the child” only
required if “the child is a nonmarital child”).9 E.C. fails to develop an argument
9
E.C. fails to discuss the applicable statutes in any meaningful way, including WIS.
STAT. § 48.42(2m)(b), which provides that, absent application of § 48.42(2)(b)2., E.C. lacked
standing.
12
No. 2021AP1655
that the County erred by declining to include him before that point, or to explain
how or why the County could seek to terminate his rights before the presumption
was overcome and/or before he was conclusively determined to be the natural
father.
¶31 In sum, E.C. failed to establish a substantial relationship with K.C.
Outside of filing a paternity action more than a year after K.C.’s birth, E.C. took
no other affirmative steps to assume parental responsibility for K.C. E.C. does not
have a constitutionally protected liberty interest in his putative paternity and thus
the process E.C. was due was purely statutory. As the Wisconsin Supreme Court
has made clear, a father may have his parental rights terminated based on periods
of abandonment that occurred prior to his official adjudication as the child’s
biological father. State v. James P., 2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d
95. E.C. has failed to show that either his constitutional or statutory rights were
violated.
CONCLUSION
¶32 E.C.’s parental rights did not rise to the level of a constitutionally
protected liberty interest, and he received all the process he was due after the
marital presumption was overcome in the proceeding where statutory grounds to
terminate his parental rights were established.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
13
No. 2021AP1655
14
Case Information
- Court
- Wis. Ct. App.
- Decision Date
- April 20, 2022
- Status
- Precedential