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As-applied constitutional challenges to TPR rejected

State v. G.H., 2015AP1606, District 1, 4/28/16 (one-judge decision; ineligible for publication); case activity

G.H.’s parental rights to M.R.H. were terminated on the grounds that M.R.H. remained in need of protection or services under § 48.415(2) and that G.H. had failed to assume parental responsibility under § 48.415(6). The court of appeals rejects his claims that these statutes are unconstitutional as applied to him.

On the continuing CHIPS ground, G.H. claims that one of the conditions he had to meet for return of M.R.H.—essentially, controlling his emotions to the point where he does not express anger or frustration—was impossible to meet and, therefore, § 48.415(2) is unconstitutional as applied to him under Kenosha County v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. Jodie W. held that the statute was invalid as applied to an incarcerated parent because it allowed termination based solely on incarceration, without regard to the parent’s actual parenting activities. That isn’t true for G.H.:

¶29     Here, the [Bureau of Milwaukee Child Welfare] was aware that G.H. had a history of being unable to meet M.R.H.’s basic needs. The BMCW was also aware that G.H. had unstable and unsafe housing. Based on this knowledge, the BMCW created goals that took G.H. and his history into account. Specifically, G.H. was required to provide a safe level of care as well as demonstrate that he has the skills and knowledge necessary to ensure M.R.H.’s safety. While G.H.’s anger management issues were certainly a factor considered in determining whether M.R.H. remained a child in continuing need of protection or services, it was not the sole factor. Accordingly, based upon our independent review of the record, we conclude that Wis. Stat. § 48.415(2) was not unconstitutional as applied to G.H.

As to the failure to assume grounds, G.H. argues it was impossible for him to assume parental responsibility because BMCW detained M.R.H. at birth and never gave him the opportunity to assume responsibility. In addition to the fact that the child doesn’t have to be living with the parent for the parent to assume responsibility, Tammy W-G. v. Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d 854, the evidence shows G.H.’s actions, not BMCW’s, are the basis for the finding:

¶39     …. The record establishes that G.H. was inconsistent in his attendance of supervised visits with M.R.H. and that he consistently left these visits early. The record establishes that when M.R.H. was detained by the BMCW, there were serious concerns with the condition of G.H.’s home and whether or not G.H. had the ability to meet the basic day-to-day care needs of M.R.H. such as feeding, sleeping arrangements, and medical care. Furthermore, G.H.’s ongoing case manager saw no marked improvements in G.H.’s ability to care for M.R.H. on a full-time basis. The record also establishes that G.H. had continuous struggles with controlling his frustrations and emotions during stressful situations, such as when M.R.H. was crying and could not be soothed.

G.H. makes parallel claims, via an ineffective assistance of counsel claim, that the jury instructions on each of the grounds were incorrect, and of course the court rejects those claims, too. (¶¶20-25, 30-33). His sufficiency challenges are also rebuffed. (¶¶46-49). And his interest of justice claims, too. (¶¶50-54).

G.H. also claims the testimony of Demerath, M.R.H.’s foster parent, should have been excluded because it improperly created a comparison of her parenting abilities with those of G.H. The court holds Demerath’s testimony was relevant to both grounds for termination because it detailed M.R.H.’s special needs for daily supervision, education, protection, and care, and did not draw a comparison between her parenting and G.H.’s. (¶¶41-45).

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