R.G. v. J.J., 2023AP630, 1/9/24, District 3 (one-judge decision; ineligible for publication); case activity
The father here–whom the court calls “Jacob”–appeals the termination of his parental rights to his son, “Hank.” About a year and a half after Hank was born, Jacob went to prison for sexual assault of a different child. Around this time, Jacob and his ex-wife, “Rita,” stipulated in their divorce proceeding that Jacob would have no placement of Hank “until further order of the court.” About three and a half years later, Rita moved to terminate Jacob’s parental rights to Hank, alleging among other things that he’d been denied physical placement for more than a year under Wis. Stat. § 48.415(4). Jacob principally argues his agreement to forego placement while he was incarcerated doesn’t constitute a “denial,” so the statutory ground doesn’t apply.
As relevant here, the statute requires a TPR petitioner to show that the parent “has been denied periods of physical placement by court order in an action affecting the family.” Wis. Stat. § 48.415(4)(a). In turn, Wis. Stat. § 767.001(1) makes clear that both divorce proceedings and placement or visitation matters constitute “actions involving the family.”
The court of appeals says that even though Jacob agreed to the lack of placement, placement was still denied by court order; it emphasizes that the parties’ stipulation did not bind the family court, which still had to determine that such denial was appropriate:
Subject to limitations not relevant to this appeal, WIS. STAT. § 767.34(1) permits the parties in a divorce action, subject to the circuit court’s approval, to “stipulate … for the support of children, or for legal custody and physical placement.” However, a “stipulation under this provision is ‘merely a recommendation jointly made by [the parties in a divorce action] to the court suggesting what the judgment, if granted, is to provide.’” Hottenroth v. Hetsko, 2006 WI App 249, ¶12, 298 Wis. 2d 200, 727 N.W.2d 38 (alteration in original; citation omitted). “When a court adopts a stipulation, it ‘does so on its own responsibility, and the provisions become its own judgment.’” Id., ¶25 (citation omitted).
It is uncontested that Jacob stipulated to the custody and placement agreement that provided him with no physical placement of Hank. This stipulation, however, was merely a recommendation to the circuit court and had no effect by itself. See id., ¶12. It was not until the court adopted the stipulation and incorporated it into its supplemental divorce judgment that the stipulation went into effect and became binding. See id., ¶¶12-13. The supplemental divorce judgment, with the incorporated stipulated custody and placement agreement, had the effect of denying Jacob physical placement of Hank. Accordingly, we conclude that the court’s supplemental divorce judgment was a court order in an action affecting the family denying Jacob periods of physical placement, as required by WIS. STAT. § 48.415(4)(a).
(¶¶13-14).
Jacob also argues that if the statutory ground applies to him, it violates due process, because there was never any hearing at which his unfitness to parent Hank was determined by a court. The court of appeals replies that the TPR grounds phase constituted such a hearing, even though it relied solely on the stipulated order. (¶¶22-26).
Jacob finally claims that he found unfit solely because he was serving a prison sentence contrary to Kenosha Cnty. Dep’t of Hum. Servs. v. Jodie W., 2006 WI 93, ¶50, 293 Wis. 2d 530, 716 N.W.2d 845. The court of appeals acknowledges that the circuit court didn’t expressly address the additional factors Jodie W. mandates, but “searches the record” and concludes the court considered them. (¶¶27-29).
