PUBLISHED
OPINION
Case No.: 96-0697
For Complete Title
of Case, see attached opinion
Submitted on Briefs November 05, 1996
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS On behalf of the petitioner-appellant, the cause was submitted on
the brief of Elizabith B. Corbett of Wausau.
Respondent
ATTORNEYS On behalf of the respondent-respondent, the cause was submitted
on
the brief of Anne L. Jacobson of Wausau.
On behalf of the guardian ad litem, the cause was submitted on
the
brief of Mary Ann Perga, of Byrnes & Perga, of Turtle
Lake.
COURT OF APPEALS
DECISION
DATED AND
RELEASED
DECEMBER 10, 1996
NOTICE
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See § 808.10 and Rule
809.62(1), Stats.
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
No. 96-0697
STATE OF WISCONSIN IN COURT OF APPEALS
IN RE THE PATERNITY OF BABY DOE:
THOMAS M.P.,
Petitioner-Appellant,
v.
KIMBERLY J.L.,
Respondent-Respondent.
APPEAL from a judgment of the circuit court for Polk County: JAMES
R. ERICKSON, Judge. Reversed and cause remanded for further
proceedings.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J. Thomas M.P. appeals a judgment denying further
proceedings to establish his paternity of Baby Doe. Thomas argues that he was denied
due process when the court dismissed his paternity action prior to blood testing and
trial, and the court erred by going beyond the statutory procedures for paternity actions
when it held an evidentiary hearing to determine the best interests of the child.
Kimberly J.L. (Baby Doe's mother) and the guardian ad litem argue that
Thomas P. was not denied due process because he has no constitutionally protected
right to a paternity determination and the trial court did not err when it decided that it
was not in the child's best interests to establish paternity. They also argue that denying
Baby Doe a hearing to determine whether a paternity determination is in her best
interests violates equal protection.
Because paternity procedures do not address parental fitness, we conclude
that the trial court erred when it conducted the pre-blood test hearing and denied
Thomas his statutory right to blood tests and a paternity determination.(1) We also
determine that § 767.458(1m), Stats., does not violate equal protection. Therefore,
we reverse the judgment and remand for a paternity determination.
The underlying facts of this case are disputed. Thomas contends that he
and Kimberly met in August or September 1988 and had a romantic relationship that
lasted three or four months. He testified that during this time he and Kimberly had
consensual sexual intercourse on many occasions. Kimberly testified that Thomas was
not her boyfriend and they never had consensual intercourse. Instead, she testified that
she was raped by Thomas during the conception period. She testified that she fears him
for her own safety, and supported this with documents regarding Thomas' prior
criminal contact with the police. She does not want Thomas to ever have contact with
Baby Doe. Kimberly has never been married, but has a child with Lloyd P. Although
she and Lloyd P. no longer reside together, he regularly keeps in touch with her and
her two children, and both of the children refer to Lloyd P. as their father.
Thomas filed a petition for the determination of paternity and a motion
for blood tests on September 7, 1990. Kimberly filed a motion to dismiss, alleging that
a determination of Thomas' paternity was not in Baby Doe's best interests. The court
denied the motion and on December 20, the court ordered Thomas, Kimberly, and Baby
Doe to submit to blood tests to establish paternity.
On March 22, 1991, the court denied Kimberly's request for a pre-blood
test hearing and again ordered that Kimberly submit herself and Baby Doe to blood
tests.(2) On October 2, 1991, the court held
Kimberly in contempt for refusing to comply
with the order. On June 3, 1992, the court modified the order for blood tests, so that
the results would be confidential, and decided to hold an evidentiary hearing to establish
whether a judicial determination of Thomas' paternity is in Baby Doe's best interests.(3)
On June 29, 1992, the court stayed the contempt sanction.
On October 5 and 6, 1995, the court conducted the best interests hearing.
The court found that Kimberly gave birth to a female child in October 1989, either
Thomas or Lloyd P. is the biological father of the child, and the child interacts with
Lloyd P. as though he is her father. Thomas has never had contact with Baby Doe, and
Kimberly has never agreed to such contact. The child has been in Kimberly's
continuous care and custody since birth.
The court took judicial notice of the fact that in 1992, a Minnesota court
decided that Thomas engaged in sexually inappropriate behavior with his daughters,
failed to admit his wrongdoing, and was unfit as a parent. The Minnesota court decided
that it was not in the best interests of these children to reside with Thomas, and it would
be detrimental to the daughters' well-being to be returned to Thomas' care.
Additionally, the court found that if Baby Doe is Thomas' child, her
conception was the result of a nonconsensual sexual assault of Kimberly by Thomas.
The court concluded as a matter of law that this finding alone was sufficient grounds for
its decision that it was not in the best interests of Baby Doe that paternity proceedings
go forward. Based also on the additional findings of fact, the court granted Kimberly's
motion to dismiss and precluded the case from proceeding to paternity judgment.
On appeal, we first consider whether Thomas has a statutory right to the
determination of his paternity of Baby Doe. The construction and interpretation of a
statute and its application to the facts presents a question of law, which we review de
novo. State v. Keith, 175 Wis.2d 75, 78, 498
N.W.2d 865, 866 (Ct. App. 1993). As
stated by our supreme court,
The purpose of statutory interpretation is to ascertain
and give effect to the legislature's intent. In determining
legislative intent, first resort is to the language of the
statute itself. If the meaning of the statute is clear on its
face, this court will not look outside the statute in applying
it.
In re P.A.K., 119 Wis.2d 871, 878-79, 350
N.W.2d 677, 681 (1984) (citations
omitted).
In order to determine whether Thomas has a statutory right to a paternity
determination, we must interpret §§ 767.45 and 767.48, Stats.:
767.45 Determination of paternity. (1) The following
persons may bring an action or motion, including an
action or motion for declaratory judgment, for the purpose
of determining the paternity of a child or for the purpose
of rebutting the presumption of paternity ... :
....
(d) A man alleged or alleging himself to be the father of
the child.
....
(5)(a) In this subsection, "any alleged father" includes any
male who has engaged in sexual intercourse with the
child's mother during a possible time of conception of the
child.
767.48 Blood tests in paternity actions. (1) (a) The court
may, and upon request of a party shall, require the child,
mother, any male for whom there is probable cause to
believe that he had sexual intercourse with the mother
during a possible time of the child's conception, or any
male witness who testifies or will testify about his sexual
relations with the mother at a possible time of conception
to submit to blood tests. Probable cause of sexual
intercourse during a possible time of conception may be
established by a sufficient petition or affidavit of the
child's mother filed with the court, or after an examination
under oath of a complainant or witness, when the court
determines such an examination is necessary.
We conclude that the statutory language is not ambiguous. It expressly provides the
alleged father of a child the right to a determination of paternity, regardless of the
circumstances of the case or the circumstances out of which paternity may have arisen.
Because the legislature has not provided a best interests hearing, the court exceeded the
legislatively mandated procedure when it ordered a best interests hearing as a
prerequisite to blood tests. The trial court therefore lacked the statutory authority to
conduct the best interests hearing and to dismiss the paternity proceedings.
We arrive at this conclusion based strictly on the procedures established
in the relevant paternity statutes. Notwithstanding Kimberly's allegation of rape, the
legislature has not provided that an alleged father has no standing in a paternity
proceeding if he sexually assaulted the mother or that the court may dismiss paternity
proceedings if it determines that conception resulted from a sexual assault.(4) It is the
role of the legislature, and not the courts, to legislate. American Motors
Corp. v.
DILHR, 101 Wis.2d 337, 350, 305 N.W.2d 62, 68 (1981). Despite our
opinion as to
whether such a provision should exist, we cannot "change the wording of a statute to
mean something which was not intended by the legislature or by the plain language
used." See id. at 350, 305 N.W.2d at
68 (quoting Lukaszewicz v. Concrete Research,
Inc., 43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969)).
We make no determination as to the fitness of Thomas to be a parent to
Baby Doe because that is not the issue in this case. Instead, such an assessment is
appropriate in the context of a proceeding to terminate Thomas' parental rights, and this
decision in no way interferes with Kimberly's right to initiate or maintain such an action
under ch. 48, Stats.
Next, we consider whether § 767.458(1m), Stats., violates Baby Doe's
equal protection rights. This is an issue of first impression in Wisconsin. Kimberly and
the guardian ad litem argue that denying Baby Doe, who was born outside of a
marriage, the right to a hearing to determine whether it is in her best interests to have
a determination of paternity violates equal protection. The relevant statute is §
767.458(1m), which provides the following:
In an action to establish the paternity of a child who was
born to a woman while she was married, where a man
other than the woman's husband alleges that he, not the
husband, is the child's father, a party may allege that a
judicial determination that a man other than the husband is
the father is not in the best interest of the child. If the
court ... determines that a judicial determination of
whether a man other than the husband is the father is not
in the best interest of the child, no blood tests may be
ordered and the action shall be dismissed.
The constitutionality of a statute presents a question of law, which we
review de novo. State v. McManus, 152 Wis.2d 113,
129, 447 N.W.2d 654, 660
(1989). Statutes are presumed constitutional and will be upheld "if there is any
reasonable basis for the exercise of legislative power."
Id. (citation omitted). "Every
presumption must be indulged to sustain the law if at all possible and, wherever doubt
exists as to the legislative enactment's constitutionality, it must be resolved in favor of
constitutionality." Id. at 129, 447 N.W.2d at 660
(quoting State ex rel. Hammermill
Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792
(1973)). "The court
cannot reweigh the facts found by the legislature. If the court can conceive any facts
on which the legislation could reasonably be based, it must hold the legislation
constitutional." Id. (quoting State
ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 506,
261 N.W.2d 434, 441 (1978)).
The equal protection clause of the fourteenth amendment guarantees that
"those who are similarly situated will be treated similarly." Treiber v.
Knoll, 135
Wis.2d 58, 68, 398 N.W.2d 756, 760 (1987). "The fact a statutory classification
results in some inequity, however, does not provide sufficient grounds for invalidating
a legislative enactment." McManus, 152 Wis.2d at
130-31, 447 N.W.2d at 660.
When the State is not discriminating based on a suspect classification, the classification
will be upheld if it bears a rational relationship to a legitimate government interest.
Id.
Equal protection of the laws is denied only when the legislature makes irrational
classifications. Omernik v. State, 64 Wis.2d 6,
18-19, 218 N.W.2d 734, 742 (1974).
We review the merits of an equal protection challenge in two steps.
See
Laskaris v. Wisconsin Dells, 131 Wis.2d 525, 534-35,
389 N.W.2d 67, 71 (Ct. App.
1986). "The first step in equal protection analysis is to identify the classes created by
the challenged legislation. The next step is to determine whether a reasonable and
practical basis exists for the classification." Id.
Section 767.458(1m), Stats.,
distinguishes between children born inside and outside of wedlock. At first blush, one
could easily come to the conclusion that children born outside of wedlock should not be
treated differently because it is the child's best interests that are at issue. The legislature
could have said that, but it did not. The question then becomes whether there is a
legitimate rational basis for this distinction. The reasonable basis for the legislation is
to protect children born into a marriage from the interference of another man with the
existing marital father-child relationship, and to preserve family unity.
The statute promotes the traditional respect for the sanctity of marriage
and the preservation of the unitary family. See Michael H. v. Gerald
D., 491 U.S.
110, 123 (1989). As noted by the Court in Michael
H., these ideals have formed the
basis for the outcomes of numerous cases in which the parental rights to a child have
been determined. Id.; see Lehr v.
Robertson, 463 U.S. 248, 261 (1983); Caban v.
Mohammed, 441 U.S. 380, 389 (1979); Quilloin v.
Walcott, 434 U.S. 246, 254-55
(1978); Stanley v. Illinois, 405 U.S. 645, 661 (1972).
As summarized by the Court,
"Our decisions establish that the Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation's history and
tradition." Michael H., 491 U.S. at 123-24 (quoting
Moore v. East Cleveland, 431
U.S. 494, 503 (1977)).
We are satisfied that the historic respect for the unitary family and the
legislature's intent to preclude interference with an otherwise secure environment for
the child are sufficient reasonable grounds for the legislature's classifications, and the
legislative classification is germane to the purpose of the law. We therefore determine
that § 767.458(1m), Stats., withstands the equal protection challenge. In summary,
we conclude that Thomas has a statutory right to a paternity determination and that §
767.458(1m), Stats., applies only to children born to a woman while she was married
and does not violate the principles of equal protection.
By the Court.--Judgment reversed and cause remanded for further
paternity proceedings.
1. Because we conclude that Thomas has a statutory
right to the determination of paternity,
it is unnecessary to address whether Thomas has a due process right to a paternity
determination.
2. Kimberly requested review of the order by petition
for leave to appeal, and this court
dismissed the appeal for lack of jurisdiction on July 23, 1991.
3. Thomas filed a petition for leave to appeal the
June 3 order of the court.
4. Kimberly and the guardian ad litem rely in part on
In re SueAnn A.M., 176 Wis.2d 673,
500 N.W.2d 649 (1993), to support their argument that Thomas has no right to a paternity
determination. SueAnn was a termination of parental
rights case in which our supreme court,
in relevant part, upheld the constitutionality of § 48.42(2m), Stats.:
"(2m) Notice not
required. Notice is not required to be given to a person who may be the father of a child
conceived as a result of a sexual assault if a physician attests to his or her belief that a sexual
assault has occurred." SueAnn is distinguishable
because the court interpreted and applied a
statutory subsection that pertains to termination of parental rights proceedings, which are not
at
issue in this case. Here, ch. 767, Stats., does not
contain a provision prohibiting an a alleged
father from obtaining a paternity determination if the conception resulted from a sexual
assault.
Return to wisbar.org
Wisconsin Court of Appeals
