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07/01/83 BABY GIRL K. v. B.B.

July 1, 1983

IN THE INTEREST OF BABY GIRL K., A PERSON UNDER THE AGE OF 18: L.K., PETITIONER-RESPONDENT,
v.
B.B., RESPONDENT-APPELLANT-PETITIONER



Review of a decision of the Court of Appeals. Affirming Day, J. Beilfuss, C.j. (minority OPINION(S)ing). Justices Heffernan and Abrahamson join in this Dissent. Shirley S. Abrahamson, J. (dissenting). Justice Nathan S. Heffernan joins in this Dissent.

The opinion of the court was delivered by: Day

This is a review of an unpublished decision of the court of appeals which affirmed a judgment of the Circuit Court for Marathon County, Leo D. Crooks, Judge, terminating the parental rights of the father, B.B., to Baby Girl K. under the provisions of sec. 48.415(6) (a)2 and 6(b), *fn1 Stats. 1981-82.

There are four issues presented on review. The first issue is: Does sec. 48.415(6) (a)2 permit termination of the parental rights of a father of a child born out of wedlock where the father was incarcerated in the state prison system from the fifth month of the mother's pregnancy?

The second issue is: Was the termination of B.B.'s parental rights under the provisions of sec. 48.415(6) (a)2, Stats., properly ordered here?

The third issue is: Must a specific finding of parental unfitness be made in order to involuntarily terminate parental rights under sec. 48.415(6) (a)2, Stats.?

The final issue is: Does sec. 48.415(6), Stats., violate the Equal Protection Clause of the Fourteenth Amendment?

We conclude that the mere fact that the father of the child born out of wedlock has been incarcerated in the prison system since the fifth month of the mother's pregnancy does not preclude possible termination of his parental rights under sec. 48.415(6) (a)2, Stats. We also conclude that due process does not require a finding of parental unfitness where the father has failed to establish a substantial parental relationship under sec. 48.415(6) (a)2. We determine that the trial court properly terminated B.B.'s parental rights under sec. 48.415(6) (a)2.

Finally, we conclude that sec. 48.415(6) (b)2, Stats., does not violate the Equal Protection Clause of the Fourteenth Amendment.

Accordingly, we affirm the decision of the court of appeals.

L.K., Baby Girl K.'s mother, and B.B. began dating in July, 1979. At that time and up through to the birth of Baby Girl K. on March 17, 1981, L.K. was a minor.

In June, 1980, L.K. became pregnant with Baby Girl K. Approximately five months later, in November, 1980, B.B. was convicted of burglary and incarcerated at the Kettle Morraine Correctional Institute. A prior conviction occurred in 1977 when he was convicted of burglary and sent to the Wisconsin State Reformatory.

From June until November, 1980, B.B. continued seeing L.K. According to the testimony of L.K., B.B. did not work but apparently supported himself quite well by dealing in drugs and "robbing places." *fn2 During that period of her pregnancy, L.K. stated that B.B. treated her "fairly good" but she recalled an incident where "he picked up my bike and threw it into the road from the porch, and then . . . grabbed me around the neck and tried to strangle me." L.K. also testified that B.B. would use the money from his drug dealing and robberies to "go out to bars and . . . buy drinks for everyone" and to buy marijuana. She noted that "he smoked a fair amount of his money away."

Prior to his incarceration, B.B. did not contribute to defraying the cost of any of L.K.'s pregnancy related expenses although he did pay some of her dental expenses. *fn3 After his incarceration, B.B. also made no contribution to her expenses. However, L.K. testified that she told him not to worry about the expenses while he was in prison. She also testified that B.B. suggested that she and the child go live with his mother after the baby was born.

While in prison, prior to the birth of Baby Girl K. B.B. and L.K. corresponded. In his letters, B.B. twice requested that L.K. come visit him and try to smuggle some marijuana to him. B.B.'s letters also expressed the concern if L.K. gave up the baby for adoption, that might end their relationship. *fn4

Before Baby Girl K.'s birth, B.B. apparently initially consented to having his parental rights terminated. However, as L.K. testified on cross-examination, he changed his mind "right around the time I stopped writing him." It was L.K.'s belief that B.B. wanted the child in order to perpetuate a relationship with her. The record and B.B.'s correspondence with L.K. lend credence to her statement.

B.B. points out that he offered to have L.K. and the child live with his mother and stepfather. L.K. refused that offer. A social worker's report which was ordered by the trial court following B.B.'s request for an evaluation of his parents' home showed that B.B. had been removed from that household and placed in a foster home and that later a half-sister had likewise been taken out of the household and placed in a foster home. *fn5

On March 17, 1981, Baby Girl K. was born. L.K. signed a Voluntary Placement Agreement with the Marathon County Department of Social Services (Department) on March 18, 1981. The purpose of the agreement was to allow Baby Girl K. to be placed in a foster home upon her discharge from the hospital. The placement occurred on March 20, 1981. Baby Girl K. has remained in the same foster home since that date. The foster parents have expressed an interest in adopting her should the parents' rights be terminated.

L.K. initially filed a petition for voluntary termination of parental rights but withdrew it after learning that B.B. would not consent to having his parental rights terminated. B.B. had filed a Declaration of Parental Interest with the Department on April 13, 1981. In June, 1981, L.K. filed a petition requesting that Baby Girl K. be found in need of protection or services and that her custody be transferred to the Department for the purpose of continued foster care placement ("Chips" petition).

On August 3, 1981, B.B. filed a petition for a determination of paternity and custody, and a motion to consolidate these matters with the "Chips" proceeding. Subsequently, L.K. filed a petition for the termination of B.B.'s parental rights under sec. 48.415(6), Stats. All of these actions were consolidated.

On December 23, 1981, the trial court adJudged B.B. the father of Baby Girl K. The court then held a hearing on L.K.'s petition to terminate the parental rights of B.B. The testimony set out above was given at this hearing. In addition, at the hearing, Baby Girl K.'s guardian ad litem recommended that B.B.'s parental rights be terminated.

Following the hearing, in a decision from the bench, the trial Judge ordered B.B.'s parental rights terminated. The court determined that B.B. had "failed to assume parental responsibility as set forth and defined in sec. 48.415(6) (a)2 and subsection (6) (b)," Stats. In so deciding, the court stated:

"This Court does find that preliminary to his incarceration Mr. [B.B.] was able to provide care and support and failed to do so. This record fails to show that Mr. [B.B.], in any way, attempted to carry on a meaningful relationship which this Court could consider as a substantial parental relationship, even by mail, or by phone, or in any other manner, doing those things that are essential to a substantial parental relationship: expressing concern with small gifts, a card, request that the baby be brought down for a visit, any number of little things that spell the difference between the results of a sexual encounter or a parent-child relationship.

"This Court does believe that in spite of his incarceration Mr. [B.B.] had that opportunity to establish a substantial parental relationship. The legislature has not given us guidelines where they will decide or where they have decided, that 'X' number of weeks or months or years constitutes the failure to establish that parental relationship and it is true that Mr. [B.B.] did file the Declaration of Parental Interest as set forth in Exhibit 4. There is no doubt in my mind that he is interested. But, he has failed to carry through on those areas that are essential to establish a substantial parental relationship."

The trial court also made the following written findings of fact and Conclusions of law which are pertinent:

"FINDINGS OF FACT

"7. That during the period that petitioner was pregnant with Baby Girl [K.], the respondent, [B.B.], on two occasions, wrote letters to petitioner asking her to smuggle marijuana into the Kettle Moraine Correctional Facility for his personal use.

"8. That on one occasion during the period that petitioner was pregnant with Baby Girl [K.] the respondent, [B.B.], physically assaulted petitioner.

"9. That the respondent, [B.B.], neglected to provide care or support to petitioner during her pregnancy even though respondent, [B.B.], had the opportunity and ability to do so.

"10. That respondent, [B.B.], failed to present evidence of any attempts on his part to establish a parental relationship with Baby Girl [K.] such as attempts to contact said child, write to persons caring for said child or to send the child cards or gifts.

11. That respondent, [B.B.], failed to make any attempt to contribute towards the medical expenses of petitioner occasioned by her pregnancy and the subsequent delivery of Baby Girl [K.].

"12. That there is a high degree of likelihood that Baby Girl [K.] will be adopted in the event the parental rights of [B.B.] are terminated.

"13. That Baby Girl [K.] is in good health and at the time of placement of foster care, was only three (3) days old.

"14. That the child has had no relationship with either parent or other family members so that it would not be harmful to said child to sever such relationships.

"15. That in the event the parental rights of [B.B.] are terminated, that the child will be able to enter into a more stable and permanent family relationship.

"CONCLUSIONS OF LAW. . .

"16. That respondent, [B.B.], has failed to assume parental responsibility for Baby Girl [K.] within the meaning of Sec. 48.415(6), Wis. Stats.

"17. That it is in the best interest of Baby Girl [K.] that the parental rights of her father, [B.B.], be terminated."

B.B. appealed from the judgment. The court of appeals affirmed. That court concluded that the evidence was sufficient to support a finding that B.B. had an opportunity to develop a substantial relationship with Baby Girl K. and had failed to do so. The court of appeals determined that the trial court's finding that the termination of B.B.'s parental rights would be in the best interest of Baby Girl K. was not against the great weight and clear preponderance of the evidence. The court also concluded that a specific finding of parental unfitness was unnecessary to terminate B.B.'s parental rights. However, the court went on to note that even though a finding of unfitness was not required, such a finding "is clearly sustained by the record." Finally, the court held that sec. 48.415(6) (a)2 did not unconstitutionally deny B.B. the equal protection of the law.

The first issue on review is: Does sec. 48.415(6) (a)2, Stats., permit the termination of the parental rights of a father of a child born out of wedlock where the father was incarcerated in the Wisconsin prison system from the fifth month of the mother's pregnancy?

Section 48.415(6) (a)2, Stats., allows the parental rights of a father whose paternity has been adjudicated to be terminated under certain conditions. The conditions exist where a father has not established a substantial parental relationship prior to the adjudication of paternity even though he had reason to believe he was the father of the child and had an opportunity to establish such a relationship. The question here is did B.B. have an opportunity to establish a relationship with Baby Girl K.

In evaluating whether a substantial parental relationship exists, the legislature in sec. 48.415(6) (a)2, Stats., authorized trial courts to consider the father's behavior during the pregnancy of the mother. Specifically, sec. 48.415(6) (a)2 allows a court to consider whether the father "has ever expressed concern for or interest in the support, care or well-being of the child or mother during her pregnancy and whether the person has neglected or refused to provide care and support even though the person had the opportunity to do so." It is clear therefore that the legislature intended that a father's pre-delivery behavior be a consideration in determining whether the father had established a substantial parental relationship.

May a father's action prior to the birth of his child form a sufficient basis to conclude that he had an "opportunity" to establish a substantial parental relationship with the child? We hold that it may.

In sec. 48.415(6) (b) the legislature defined "substantial parental relationship" as "the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child." (Emphasis added.) Medical authorities have long recognized that prenatal care is important to the eventual health and well-being of an infant. *fn6 Because what happens to a fetus in utero can have a significant impact upon the quality of life a child will have after birth, we conclude that a parent's action prior to a child's birth can form a sufficient basis for determining whether that parent has established a substantial parental relationship with the child.

The parental rights of fathers of children born out of wedlock have been given constitutional protection. Stanley v. Illinois, 405 U.S. 645, 658 (1972). If the statute foreclosed the possibility of a father showing he had developed a substantial parental relationship with his child, due process would be violated. Here however, that possibility is not foreclosed. The father's parental rights ...


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