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Challenges to termination of parental rights rejected

State v. J.A., 2018AP1257, District 1, 12/4/18 (one-judge decision; ineligible for publication); case activity

J.A.’s parental rights were terminated on the ground he failed to assume parental responsibility. He argues the CHIPS order itself created a substantial parental relationship, thereby precluding the state from using that ground to terminate his rights. Alternatively, he argues the CHIPS order made it impossible for him to assume parental responsibility. Neither argument succeeds.

J.A.’s first argument is that the CHIPS order created a “court-ordered and court-supervised substantial parental relationship” that precluded the state from turning around and alleging he failed to assume parental responsibility as a ground for termination of parental rights. He cites common dictionary definitions of “substantial” (“something of considerable importance”) and “relationship” (“the state of being connected”). (¶25).

Not so fast, says the court of appeals. There’s a statutory definition of the phrase, § 48.415(6)(b), and “technical or specially-defined words or phrases are given their technical or special definitional meaning,” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Under § 48.415(6)(b) “substantial parental relationship” requires the “acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child,” State v. Bobby G., 2007 WI 77, ¶45, 301 Wis. 2d 531, 734 N.W.2d 81. (¶27). “Under the legislature’s definition, a CHIPS order is not even included among the factors a court is to consider when evaluating whether a ‘substantial parental relationship’ exists. Thus, we rely upon that special definitional meaning.” (¶28). And J.A.’s interpretation leads to the unreasonable and absurd result that “in every case in which there was a CHIPS order, a parent would be deemed to have a substantial parental relationship, even if the parent had no contact with the child while the CHIPS order was in effect.” (¶29). So the CHIPS order didn’t create a “substantial parental relationship” that precludes termination.

J.A. next argues that removal of his child from the home and limiting J.A.’s visitation makes § 48.415(6) unconstitutional as applied to him. He relies on Kenosha County DHS v. Jodie W., 2006 WI 93, ¶39, 293 Wis. 2d 530, 716 N.W.2d 845. (¶31). To no avail, says the court: Jodie W. involved parents who are incarcerated and the petition to terminate parental rights alleges continuing CHIPS based solely on the parent’s incarceration; in those cases, the court-ordered conditions of return must be tailored to the particular needs of the parent and child, but:

¶33     …. [C]ontrary to J.A.’s argument, Jodie W. does not stand for the proposition that where a parent is not incarcerated, but the child is removed from the parent’s home, the failure to assume grounds in the statute is unconstitutional as applied. J.A. cites no legal authority suggesting that the definition of “substantial parental relationship” is deficient or holding that having a child in out-of-home placement makes it impossible to assume parental responsibility. We have rejected similar contentions in authored unpublished opinions which, although non-binding, we find persuasive.

For those unpublished decisions, see here, here, and here.

These claims were raised through the prism of an ineffective claim, as trial counsel did not make them. Because the court finds no merit in them, trial counsel was, by definition, not deficient for failing to raise the issues. The court also swiftly dismisses two other IAC claims—failure to sever J.A.’s trial from the trial of the child’s mother and failure to advise J.A. of possible (nonexistent) defenses. (¶¶37-45). And, for at least the fourth time this year, the court of appeals rejects a claim that § 809.107(6)(am) requires a hearing on a postdisposition motion in a TPR case. (¶¶16-24). Oh well.

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