June 26, 2023 – A court may terminate the parental rights of a person convicted of neglect of a child resulting in death, as a party to the crime, if the person directly committed the crime, the Wisconsin Court of Appeals has ruled.
In Brown County Department of Health Services v. S.K., 2022AP1432 (April 18, 2023), the court of appeals remanded the case for further argument on whether the person had directly committed the crime.
In May 2017, Stephanie and Jacob arrived at a Brown County emergency room with a dead child.
The autopsy report documented bruising all over the child’s body, as well as a perforated bowel, three fractured ribs and marks that appeared to be human bite wounds.
The pathologist who conducted the autopsy concluded that the child had been abused and died from sepsis, which invaded the body through the perforated bowl – an injury caused by blunt force trauma.
Child’s Death Leads to Criminal Case
In June 2017, a court adjudicated Robert, the biological son of Stephanie and Robert, to need protection or services.
The Brown County District Attorney then charged Stephanie with three counts arising out of the May 2017 death of Robert’s half-sibling:
neglect of a child resulting in death, as a party to the crime;
physical abuse of a child (failing to act to prevent bodily harm), as a party to the crime; and
resisting or obstructing an officer.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Stephanie pled no contest to neglect of a child resulting in death, as a party to a crime. The remaining two charges were read in at her sentencing.
County Moves to Terminate Parental Rights
In June 2021, Brown County’s Department of Human Services moved to terminate Stephanie’s parental rights to Robert, based on the fact that Stephanie had committed a serious felony against a child, under Wis. Stat. section 48.415(9m).
The county moved for partial summary judgment and submitted copies of the complaint and the judgment of conviction from Stephanie’s criminal case.
The circuit court granted the county’s motion. Stephanie appealed.
Exception to ‘Serious Felony?’
Writing for a three-judge panel, Judge Gregory Gill pointed out that section 48.415(9m)(b)(1) specifies that the term “serious felony” means both four forms of homicide and the “aiding or abetting of, or the solicitation, conspiracy or attempt” to commit any of those offenses.
He also noted that section 48.415(9m)(b)3 states that committing a violation of section 948.21 – neglect of a child – constitutes a “serious felony” if it resulted in the death of the victim but does not state that “aiding or abetting of, or the solicitation, conspiracy or attempt” to neglect a child constitutes a “serious felony” for purposes of section 48.415(9m).
Stephanie argued that the Wisconsin Court of Appeals should ascribe meaning to the legislature’s decision to include the aiding/betting/solicitation/conspiracy/attempt wording to section 48.415(9m)(b)3.
Specifically, Stephanie argued that the court of appeals should conclude that the legislature did not intend that a conviction for neglect as a party to a crime to count as a “serious felony” under section 48.415(9m).
Party by Directly Committing Crime
Gill agreed that the court of appeals must give meaning to the legislature’s decision to exclude the aiding/betting/solicitation/conspiracy/attempt wording from section 48.415(9m)(b)3.
“Reading subd. 3. in context with subd. 1., we conclude that a conviction for neglect of a child resulting in death qualifies as a ‘serious felony’ for purposes of section 48.415(9m) only if the individual directly committed that offense,” Judge Gill wrote.
But that didn’t mean that the conviction for neglect of a child resulting in death, as a party to a crime, can never count as a “serious felony” under section 48.415(9m), Gill reasoned.
“Stephanie’s argument is flawed because it does not account for the fact that a person may be convicted of an offense as a party to the crime when the person directly committed the offense,” Judge Gill wrote.
He pointed out that: 1) section 939.05 specifies that a person may be charged with the commission of a crime even if he or she did not directly commit the crime if he or she is “concerned in the commission of a crime;” and 2) section 939.05 also specifies that a person is “concerned in the commission of the crime” if he or she “directly commits the crime,” among other things.
Consequently, Judge Gill reasoned, the state may not terminate a person’s parental rights based on a conviction for neglect a child resulting in death, as a party to a crime, if he or she aided or abetted the crime, solicited the commission or the crime, or conspired to commit the crime.
However, Gill pointed out, a person is subject to liability as a party to a crime if he or she directly committed the crime.
“In other words, what matters is not whether the person’s conviction for neglect of a child resulting in death was as a party to a crime, but whether the person directly committed the crime, as opposed to aiding and abetting, soliciting, or conspiring to commit it,” Judge Gill wrote.
Reverse and Remand
Gill pointed out that because the circuit court agreed with the county’s argument and granted partial summary judgment, it didn’t analyze whether the undisputed facts demonstrated that Stephanie had committed the crime of neglect of a child resulting in death, as a party to the crime.
The county submitted to the court of appeals the criminal complaint filed against Stephanie and the judgment of conviction entered against her.
However, Judge Gill wrote, “[b]ased on our review of those documents – and without the benefit of developed arguments from the parties – we cannot conclude, as matter of law, whether the undisputed facts show that Stephanie directly committed the offense of neglect of a child resulting in death.”
Consequently, the court of appeals reversed the order terminating Stephanie’s parental rights and remanded for further proceedings.
