R. G. v. J. J.

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.
January 9, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP630 Cir. Ct. No. 2020TP51

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO H. C. J.,
A PERSON UNDER THE AGE OF 18:

R. G.,

PETITIONER-RESPONDENT,

V.

J. J.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Chippewa County:
STEVEN H. GIBBS, Judge. Affirmed.
No. 2023AP630

¶1 GILL, J.1 Jacob2 appeals from an order terminating his parental
rights to his son, Hank, based upon a continuing denial of periods of physical
placement or visitation pursuant to WIS. STAT. § 48.415(4).3 Jacob argues that the
circuit court erred by concluding he was “denied” periods of physical placement
based upon his stipulation in a family law action that he would have no custody or
physical placement of his son until further order of the court. He also argues that
his due process rights were violated because his parental rights were terminated
without a hearing on his fitness as a parent. We reject Jacob’s arguments and
affirm.

BACKGROUND

¶2 Jacob and Rita were married and had a son, Hank, who was born in
November 2015. In May 2016, a criminal action was commenced against Jacob
for sexual assault of an unrelated child. Jacob and Rita divorced in December
2016. In April 2017, Jacob was convicted of second-degree sexual assault of a
child, exposing genitals to a child, and causing a child between the ages of thirteen
and eighteen to view sexual activity.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading, we refer to the appellant, the child, and the associated family
members in this confidential matter using pseudonyms, rather than their initials.
3
Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be
taken in an order that ensures that a decision is issued within 30 days after the filing of the
appellant’s reply.” RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a
delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in
this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680,
694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this
decision is issued.

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¶3 In June 2017, prior to Jacob being sentenced, Jacob and Rita
addressed previously reserved divorce issues, including the issue of Hank’s
custody and physical placement. Jacob and Rita presented a stipulated custodial
agreement to the circuit court which stated that “[Rita] shall have sole legal
custody of the parties’ minor child, [Hank]…. [Rita] shall have sole and primary
physical placement of the child. [Jacob] shall have no placement time with the
minor child until further order of the [c]ourt.” The court incorporated this
custodial agreement, in its entirety, into a supplemental divorce judgment. The
following day, Jacob was sentenced in his criminal case to six years’ initial
confinement followed by six years’ extended supervision.

¶4 In December 2020, Rita petitioned the circuit court to terminate
Jacob’s parental rights. Based upon the supplemental divorce judgment, Rita
asserted that Jacob’s parental rights should be terminated on the grounds of
continuing denial of periods of physical placement and failure to assume parental
responsibility pursuant to WIS. STAT. § 48.415(4) and (6), respectively. Jacob
moved to dismiss the petition, arguing that the supplemental divorce judgment did
not constitute a “denial” of physical placement as required by § 48.415(4). The
court rejected the motion to dismiss, stating that the supplemental divorce
judgment was entered in an action affecting the family, thereby satisfying
§ 48.415(4).

¶5 In July 2022, the matter proceeded to a bench trial, where the circuit
court was tasked with determining whether there were grounds to terminate

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No. 2023AP630

Jacob’s parental rights to Hank.4 In its decision, amongst other things, the court
quoted the supplemental divorce judgment, which granted sole physical placement
of Hank to Rita; noted that Hank’s placement had not been modified since the
supplemental divorce judgment was entered; and thereby found—by clear and
convincing evidence—that there were grounds to terminate Jacob’s parental rights
due to continuing denial of periods of physical placement or visitation pursuant to
WIS. STAT. § 48.415(4).5 The court then found Jacob to be an unfit parent
pursuant to WIS. STAT. § 48.424(4).6 The court subsequently conducted a
dispositional hearing, determined that it was in Hank’s best interests to terminate
Jacob’s parental rights, and granted the petition to terminate Jacob’s parental
rights.

¶6 Jacob filed a motion for reconsideration, again arguing that the
stipulated custodial agreement was not a denial of physical placement and thus
could not satisfy WIS. STAT. § 48.415(4). Jacob further argued that terminating his
parental rights pursuant to § 48.415(4) violated his due process rights, as the
circuit court’s order terminating his parental rights did not allege unfitness. The
court denied Jacob’s motion, stating that Rita had proved by clear and convincing

4
“Wisconsin has a two-part statutory procedure for the involuntary termination of
parental rights.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856. In
the first step, the grounds phase, a fact finder must determine whether the petitioner has
established the existence of one or more of the statutorily enumerated grounds for a termination
of parental rights. See WIS. STAT. § 48.424(1)(a). In the second step, the dispositional phase, the
circuit “court is called upon to decide whether it is in the best interest of the child that the parent’s
rights be permanently extinguished.” Steven V., 271 Wis. 2d 1, ¶27.
5
The circuit court concluded that Rita did not prove by clear and convincing evidence
that Jacob failed to assume parental responsibility. Rita does not challenge this ruling on appeal,
and, therefore, we do not discuss this ground further.
6
WISCONSIN STAT. § 48.424(4) provides that “[i]f grounds for the termination of
parental rights are found by the [circuit] court or jury, the court shall find the parent unfit.”

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No. 2023AP630

evidence that the requirements in § 48.415(4) were satisfied and that the court was
therefore required to find Jacob an unfit parent. Jacob now appeals.

DISCUSSION

¶7 Jacob argues that he was not “denied” placement as required by WIS.
STAT. § 48.415(4) because he stipulated to the custody and placement agreement
underlying the supplemental divorce judgment and because the supplemental
divorce judgment allows Jacob to have placement upon “further order of the
[c]ourt.” Jacob further argues that § 48.415(4) is unconstitutional as applied to
him because the statute deprives him of the fundamental right to parent his child
without a hearing regarding his fitness as a parent. We reject Jacob’s arguments
and affirm.

¶8 Whether the circuit court erred by concluding that the supplemental
divorce judgment is a “denial” of physical placement under WIS. STAT.
§ 48.415(4) is a question of statutory interpretation. See State v. Perry, 215
Wis. 2d 696, 706-07, 573 N.W.2d 876 (Ct. App. 1997). Statutory interpretation
presents a question of law, which we review de novo. Nowell v. City of Wausau,
2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852.

¶9 “[S]tatutory interpretation ‘begins with the language of the statute.
If the meaning of the statute is plain, we ordinarily stop the inquiry.’ Statutory
language is given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special
definitional meaning.” State v. ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Statutory
language should be “interpreted in the context in which it is used; not in isolation

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No. 2023AP630

but as part of a whole; in relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46.

¶10 WISCONSIN STAT. ch. 48 does not define the word “denial,” see WIS.
STAT. § 48.02; and we therefore turn to the plain meaning of the word within its
statutory context. See Kalal, 271 Wis. 2d 633, ¶¶45-46. Jacob’s parental rights
were terminated under WIS. STAT. § 48.415(4), continuing denial of periods of
physical placement or visitation, which requires showing both

(a) That 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 under [WIS.
STAT. §§] 48.345, 48.363, 48.365, 938.345, 938.363 or
938.365 containing the notice required by [WIS. STAT.
§§] 48.356(2) or 938.356(2).

(b) That 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.

Sec. 48.415(4).

¶11 This court has clarified that “the first usage of ‘or’ in [WIS. STAT.
§] 48.415(4)(a) separates the paragraph into two self-contained clauses, one
pertaining to family court orders and the other applicable to juvenile court orders.”
Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, ¶7, 281 Wis. 2d 261, 697
N.W.2d 476. Here, the clause relevant to the termination of Jacob’s parental
rights is the clause pertaining to family court orders. WISCONSIN STAT.
§ 767.001(1) defines “[a]ction affecting the family” to include divorce actions and
actions “[c]oncerning periods of physical placement or visitation rights to
children.” Sec. 767.001(1)(c), (k).

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No. 2023AP630

¶12 Jacob stipulated to not having physical placement of Hank as a part
of Jacob and Rita’s divorce case. Consequently, the stipulation—and the
subsequent supplemental divorce judgment—occurred in an action affecting the
family. Further, it is uncontested that at the time the circuit court found grounds to
terminate Jacob’s parental rights, more than one year had passed since the
supplemental divorce judgment was entered.

¶13 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).

¶14 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

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No. 2023AP630

action affecting the family denying Jacob periods of physical placement, as
required by WIS. STAT. § 48.415(4)(a).

¶15 Jacob contends that the plain meaning of “denied” “suggests some
kind of adverse order[] against a parent’s request for placement.” Jacob defines
“denial” as a “refusal to satisfy a request or desire.” Denial, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/denial (last visited
Jan. 3, 2024). Instead of denying him placement, Jacob argues that the
supplemental divorce judgment merely “allocated [physical placement of Hank]
solely to Rita in light of Jacob’s incarceration and ‘until further order of the
[c]ourt.’” In support of this argument, Jacob notes that the supplemental divorce
judgment did not use the word “denied.”

¶16 We are not persuaded by Jacob’s argument. We first note that WIS.
STAT. § 48.415(4) does not require that a circuit court in an action affecting the
family specifically use the words “denial” or “denied” for its orders to effectuate a
denial of physical placement. We decline to impose a requirement that the court
use specific language that the statute does not require. See State v. Brown, 2020
WI 63, ¶¶27-28, 392 Wis. 2d 454, 945 N.W.2d 584 (“The law generally rejects
imposing ‘magic words’ requirements.”) (citations omitted). Rita argues, and we
agree, that Merriam-Webster also defines “denial” as a “negation” and that the
supplemental divorce judgment negated Jacob’s rights to physical placement of
Hank. See Denial, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/denial (last visited Jan. 3, 2024).
The supplemental divorce judgment provided Jacob with “no placement time
with” Hank and awarded sole placement to Rita. The only way for Jacob to obtain
placement of Hank—without violating the court order—would have been for him

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No. 2023AP630

to petition the court to modify physical placement. Thus, the supplemental
divorce judgment had the effect of denying Jacob physical placement of Hank.

¶17 Jacob next argues that he was not “denied” physical placement under
WIS. STAT. § 45.415(4) because the term “denial of physical placement” has a
special meaning in WIS. STAT. ch. 767 and it requires the circuit court to find that
“physical placement rights would endanger the child’s physical, mental, or
emotional health.” See WIS. STAT. § 767.41(4)(b). In support of this argument,
Jacob notes that § 767.41(4)(cm) states, “If a court denies periods of physical
placement under this section, the court shall give the parent that was denied
periods of physical placement the warning provided under [WIS. STAT. §] 48.356.”
Jacob then notes that § 48.356 requires the court to “orally inform the
parent … who appear[s] in court of any grounds for termination of parental rights
under [§] 48.415 which may be applicable and of the conditions necessary for the
child … to be returned to the home.” See § 48.356(1). Jacob also argues that
“denial,” as applied to a stipulated custodial agreement, would have required the
parties to stipulate that physical placement of Hank with Jacob would endanger
Hank’s physical, mental, or emotional health.

¶18 We first note that Jacob’s argument—that WIS. STAT. ch. 767’s
definition of “denial of placement” applies to WIS. STAT. § 48.415(4)—has
previously been rejected by this court. See Kimberly S.S., 281 Wis. 2d 261,
¶¶8-12 (“To the extent that [the father] is arguing that the legislature would not
enact statutes that treated similar situations differently, we repeat that the
legislature unambiguously did just that in … § 48.415(4). The remedy here, if any
is needed, is legislative, not judicial.”). Further, even if Jacob were correct in
arguing that the definition “denial of physical placement” in WIS. STAT.
§ 767.41(4)(b) is linked to termination of parental rights proceedings, Jacob was

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No. 2023AP630

not denied physical placement under § 767.41(4). Rather, the circuit court
approved Jacob and Rita’s custodial stipulation regarding Hank’s physical
placement pursuant to WIS. STAT. § 767.34(1).

¶19 WISCONSIN STAT. § 767.34, while containing some limitations on
the types of stipulations the circuit court may approve, contains no provision
mandating the court to give a parent who is denied physical placement the warning
required under WIS. STAT. § 48.356. Similarly, § 767.34 contains no language—
either directly or by citing to WIS. STAT. § 767.41(4)—requiring parties to
stipulate that physical placement of a child with a parent would be harmful to the
child in order for a court’s adoption of a stipulated agreement to qualify as a denial
of placement. Thus, in the absence of statutory language supporting Jacob’s
contentions, we reject his argument. See Fond Du Lac County v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989) (“One of the
maxims of statutory construction is that courts should not add words to a statute to
give it a certain meaning.”).

¶20 Jacob also argues that relying on the custody and placement
agreement within the supplemental divorce judgment to conclude that the
requirements in WIS. STAT. § 48.415(4) were satisfied would lead to an absurd
result. In support, Jacob presents a hypothetical situation where a parent serving
in the military is deployed overseas for an indeterminate amount of time, thus
resulting in an order granting sole physical placement to the other parent and
exposing the serving parent to having their parental rights terminated. We reject
this argument.

¶21 WISCONSIN STAT. § 767.34(3)(b) states that a circuit court “may
approve a stipulation for legal custody and physical placement that includes

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No. 2023AP630

modifications to legal custody or physical placement upon the occurrence of a
specified future event that is reasonably certain to occur within 2 years of the date
of the stipulation.” Notably, this paragraph does not indicate that stipulations
without such a time limitation are void. Regardless of the above, any parent’s
stipulation would not result in the automatic termination of his or her parental
rights. The termination of parental rights action would simply proceed to the
second phase of the proceedings, where the court must consider the child’s best
interests, including whether the child has a substantial relationship with the parent
and the duration of the parent’s separation from the child. WIS. STAT. § 48.426(3).
We note that, in the present case, Jacob had approximately four years in which he
could have petitioned the circuit court to amend the order, and like in the above
hypothetical, Jacob had the opportunity to prove to the court that termination of
his rights was not in Hank’s best interest regardless of the supplemental family
law order, but failed to do so.7

¶22 We now turn to Jacob’s argument that WIS. STAT. § 48.415(4) is
unconstitutional as applied to him. Jacob argues that § 48.415(4) violates his due
process rights because his parental rights were terminated without a hearing on his
fitness as a parent.

¶23 “Whether a statute is constitutional presents a question of law that
we review de novo.” Dane Cnty. Dep’t of Hum. Servs. v. P.P., 2005 WI 32, ¶14,
279 Wis. 2d 169, 694 N.W.2d 344. “A party challenging a statute’s

7
We also note that, when an order of physical placement is modified due to a service
member being called to active duty in the military, WIS. STAT. § 767.451(3m) requires that the
“the allocation of periods of physical placement and, if applicable, physical placement schedule
that were in effect before the modification are reinstated immediately upon the service member's
discharge or release from active duty.”

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No. 2023AP630

constitutionality bears a heavy burden to overcome the presumption of
constitutionality…. [A] party … must demonstrate that the statute is
unconstitutional beyond a reasonable doubt.” Id., ¶18. It is undisputed that Jacob
has a fundamental liberty interest at stake; and thus, WIS. STAT. § 48.415(4) must
withstand strict scrutiny. See P.P., 279 Wis. 2d 169, ¶20. “[T]o withstand strict
scrutiny, a statute must be narrowly tailored to meet a compelling state interest.
Here, the compelling state interest is to protect children from unfit parents.
Accordingly, the statutory scheme at issue must be narrowly tailored to advance
the State’s interest in protecting children from unfit parents.” Id.

¶24 As-applied constitutional challenges question the constitutionality of
a statute “on the facts of a particular case or [as applied] to a particular party.”
State v. Smith, 2010 WI 16, ¶10 n.9, 323 Wis. 2d 377, 780 N.W.2d 90 (citation
omitted). “‘In an as-applied challenge, the constitutionality of the statute itself is
not attacked; accordingly, the presumption that the statute is constitutional
applies….’ However, while we presume the statute is constitutional, ‘we do not
presume that the State applies statutes in a constitutional manner.’” Mayo v.
Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶56, 383 Wis. 2d
1, 914 N.W.2d 678 (citations omitted).

¶25 Jacob correctly notes that he “is entitled to a hearing on his fitness as
a parent before his children [are] taken from him.” See Stanley v. Illinois, 405
U.S. 645, 649 (1972). However, Jacob misunderstands the Wisconsin termination
of parental rights process, insomuch as the grounds phase of the termination of
parental rights proceedings is a hearing on a parent’s fitness. See Sheboygan
Cnty. Dep’t of Health & Hum. Servs. v. Tanya M.B., 2010 WI 55, ¶¶50-52, 325
Wis. 2d 524, 785 N.W.2d 369 (“WIS[CONSIN] STAT. ch. 48 reflects” that “the due
process clause of the Fourteenth Amendment requires that proof of parental

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No. 2023AP630

unfitness be shown by clear and convincing evidence.”). WISCONSIN STAT.
§§ 48.415 and 48.424(4) require the circuit court to find a parent unfit if the
petitioner proves, by clear and convincing evidence, that grounds exist for the
termination of parental rights.

¶26 In the instant case, a hearing was held to determine whether there
were grounds to terminate Jacob’s parental rights. Jacob had the right to—and
did—present evidence at that hearing regarding his fitness as Hank’s parent. At
the conclusion of the hearing, the circuit court found that Rita had proved by clear
and convincing evidence that there were grounds to terminate Jacob’s parental
rights. Based on that finding, and pursuant to WIS. STAT. § 48.424(4), the court
found Jacob unfit as a parent. Thus, we reject Jacob’s argument that his parental
rights were terminated without a hearing. See B.L.J. v. Polk Cnty. Dep’t of Soc.
Servs., 153 Wis. 2d 249, 255-56, 450 N.W.2d 499 (Ct. App. 1989) (“A parent
whose rights are terminated under § 48.424(4) has received more than adequate
protection by the prescribed process of termination of parental rights.”).

¶27 Jacob also argues that the circuit court’s finding of unfitness violated
his due process rights because the finding was impermissibly based solely on his
incarceration. Our supreme court has previously concluded that:

[A] parent’s incarceration is not itself a sufficient basis to
terminate parental rights. Other factors must also be
considered, such as the parent’s relationship with the child
and any other child both prior to and while the parent is
incarcerated, the nature of the crime committed by the
parent, the length and type of sentence imposed, the
parent’s level of cooperation with the responsible agency
and the Department of Corrections, and the best interests of
the child.

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Kenosha Cnty. Dep’t of Hum. Servs. v. Jodie W., 2006 WI 93, ¶50, 293 Wis. 2d
530, 716 N.W.2d 845.8

¶28 In its written decision after the grounds trial, the circuit court
directly addressed Jacob’s concern that its finding of unfitness was impermissibly
based solely on his incarceration. The court quoted the above language from
Jodie W., noted that the main reasons that Rita wanted to terminate Jacob’s
parental rights were his “crimes, convictions, and incarceration,” and then
addressed each of the factors listed in Jodie W. Specifically, the court noted that

[e]vidence showed [that Jacob] initially had a relationship
with [Hank] when he was a very young child. Then,
[Jacob] was convicted of 2nd degree sexual assault of child
(not his own child), exposing genitals to a child, and
causing a child 13-16 to view sex activity. He was
sentenced to 6 years in prison and is expected to be
released on extended supervision in 2023. It appears that
[Jacob] has cooperated with the Department of Corrections.
During his incarceration, he has tried to keep in touch with
[Hank] by writing him. [Rita] has asked him to stop
writing.

The court was also aware that Jacob co-parented another child while incarcerated.

¶29 Although the circuit court did not provide a detailed analysis of the
Jodie W. factors, nor specify how they relate to Hank’s best interests, we search
the record to support the court’s findings. Given the court’s comments and
decision, we infer the court found that Jacob was unfit to continue to parent Hank

8
We note that Kenosha County Department of Human Services v. Jodie W., 2006 WI
93, 293 Wis. 2d 530, 716 N.W.2d 845 was a case where the ground for termination of parental
rights was continuing need of protection or services rather than continuing denial of periods of
physical placement or visitation. See id., ¶8; WIS. STAT. § 48.415(2). We assume without
deciding that the Jodie W. factors apply to the ground of continuing denial of periods of physical
placement or visitation.

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No. 2023AP630

based upon the nature of Jacob’s crimes, coupled with the length of his
incarceration, and lack of ongoing communication with Hank. Thus, the court
considered the additional factors set forth by our supreme court. Cf. id., ¶¶52-55
(Termination of parental rights reversed due to the circuit court improperly
deeming the parent unfit “solely by virtue of her status as an incarcerated person
without regard for her actual parenting activities or the condition of her child”);
Kia M.E. v. Jerome E.O., No. 2009AP2383, unpublished slip op. ¶¶15-19 (WI
App Dec. 3, 2009)9 (Termination of parental rights based upon denial of periods of
physical placement reversed due to the court’s written order clearly providing that
the sole reason for denying physical placement was because the parent was
incarcerated). Regardless, the termination of Jacob’s parental rights was not based
solely on his incarceration but, rather, on the facts noted above as well as the
supplemental divorce judgment based on the custody and placement agreement
that Jacob stipulated to. Accordingly, we reject Jacob’s argument that the court
impermissibly found him unfit as a parent based solely on his incarceration.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

9
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

15