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Child welfare bureau’s failures don’t invalidate TPR based on failure to assume parental responsibility

State v. N.J., 2015AP1477 & 2015AP1478, District 1, 11/12/15 (one-judge decision; ineligible for publication); case activity

The order terminating N.J.’s parental rights based on her failure to assume parental responsibility under § 48.415(6) was not invalidated by any failures by the Milwaukee Child Welfare Bureau to make reasonable efforts to reunite N.J. with her two children.

N.J. had custody and took care of her two children during the first couple years of their life, but after a series of incidents involving drugs and run-ins with the law a CHIPS order was entered under which the children were placed with their father and the Bureau had primary responsibility to provide service. While the CHIPS order was in place N.J. continued her drug use and was in and out of jail. She was eventually sentenced to prison, and the state filed TPR petitions, which resulted in termination. (¶¶2-28).

N.J. argues § 48.415(6) is unconstitutional as applied to her because the Bureau failed to make reasonable efforts to reunite her with her children. While the circuit court found the Bureau did a “poor” and “substandard” job in N.J.’s case, “reasonable efforts are not required under the failure to assume parental responsibility ground—nowhere in Wis. Stat. § 48.415(6) does it state that parental rights can be terminated based on failure to assume parental responsibility only where the State or the Bureau has made reasonable efforts.” (¶35). And, under the applicable totality of the circumstances test, the evidence supported the circuit court’s termination decision:

¶42     While we recognize that the Bureau’s inaction—particularly as to the involvement of case managers as is reflected in the testimony—may have made it more difficult for N[.] J., particularly while she was incarcerated, to comply with some of the requirements set forth in the CHIPS order, the trial court’s conclusion that N[.] J. did not assume parental responsibility for her children was not based solely upon the Bureau’s actions and inactions. Rather, in concluding that the State had carried its burden of establishing failure to assume parental responsibilities pursuant to Wis. Stat. § 48.415(6), the trial court took great care in detailing its findings of fact and its credibility determinations.

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¶47     Despite N[.] J.’s suggestion, this is not a case where the Bureau kept G.H. and J.H. from N[.] J. or prevented her from engaging with her children or even the Bureau. To the contrary, N[.] J.’s own testimony clearly reveals that she chose on multiple occasions throughout G.H.’s and J.H.’s lives to undertake actions that removed her from assuming parental responsibility and playing a substantial role in their lives, whether it was due to her drug use, incarceration, or her conscious decision not to engage with the Bureau while her children were under CHIPS orders. These were choices that N[.] J. made—they were not forced upon her, and these were choices that are separate and apart from any alleged failure on the part of the Bureau in regard to the CHIPS cases.

There is a reasonable efforts requirement for other grounds—for instance, when the ground alleged is continuing CHIPS, § 48.415(2)(a)2. While the state also alleged continuing CHIPS in this case, it dismissed that ground during trial. (¶¶26, 34-35).

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