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TPR – Constitutionality, § 48.415(6)

Chippewa County Dept. of Human Services v. James A., 2011AP2613, District 3, 2/7/12

court of appeals decision (1-judge, not for publication); for James A.: Susan E. Alesia, SPD, Madison Appellate; case activity

¶18      James does not allege Wis. Stat. § 48.415(6) implicates a First Amendment right.  Therefore, the threshold question is whether James’ conduct plainly falls within the statute’s proscriptions.  If it does, he is precluded from challenging the statute on vagueness grounds. See Ruesch, 214 Wis. 2d at 561-62.

¶19      Wisconsin Stat. § 48.415(6) provides notice that failure to assume parental responsibility is a ground for termination of parental rights.  To establish failure to assume parental responsibility, the County must prove the parent has “not had a substantial parental relationship with the child.”  Wis. Stat. § 48.415(6)(a).  In turn, “substantial parental relationship” is defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.”  Wis. Stat. § 48.415(6)(b).  Paragraph (b) also instructs that, when evaluating whether a parent has had a substantial parental relationship with a child, the court may consider various factors, including “whether the person has expressed concern for or interest in the support, care or well-being of the child,” “whether the person has neglected or refused to provide care or support for the child,” or “whether … the person has expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.”

¶23      James’ conduct clearly falls within the standards set forth in Wis. Stat. § 48.415(6).  A few letters and one phone call throughout the course of Dakota’s entire life do not, by any stretch of the imagination, amount to a “substantial parental relationship.”  See Wis. Stat. § 48.415(6)(a).  Because James’ conduct falls so clearly within the parameters of the statute, he cannot challenge the statute on vagueness grounds.  See Ruesch, 214 Wis. 2d at 561-62.

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