R.D.J. appeals the termination of his parental rights to his daughter, T.S.J. He argues that his lawyer was ineffective for not challenging the state’s expert’s report on Daubert and undue prejudice grounds, that his due process rights were violated because T.S.J.’s removal from the home made it impossible for him to show a substantial parental relationship, and that the CHIPS order itself established that such a relationship existed.
Regarding the report–which concluded, on apparently shaky grounds, that R.D.J. had a “high probability” of abuse and a “poor” parenting capacity, the court concludes that the trial attorney’s cross of the expert obviated any prejudice.
The thorough cross-examination of Dr. Iyamah by R.D.J.’s counsel, as explained above, made clear that the testing was a year and a half old, that the expert’s opinion was that R.D.J. had potential for improvement, that she did not know whether there had been improvement, and that improvements would affect the assessment of his parenting capacity. It also forced her to concede that there was no history of abuse by R.D.J. and that the tests do not predict that R.D.J. will abuse a child. The cross-examination exposed the report’s weaknesses and discredited its conclusions. In contrast, there was consistent and unrebutted evidence of R.D.J.’s pattern of lack of involvement with T.S.J., his repeated discharge from services due to inappropriate conduct, his episodes of explosive anger, and his decision to move the child back in with the mother while she was psychotic and dangerous to the child.
R.D.J. next submits that the jury could have found he had failed to assume parental responsibility during the time T.S.J. was removed from his home via CHIPS order. He focuses on the statutory language requiring a parent to exercise significant responsibility for the “daily supervision, education, protection and care of the child.” Wis. Stat. § 48.415(6)(a).
The court responds that the jury instructions direct the jury to “look at the parent’s ‘acceptance and exercise’ of significant responsibility and require that the ultimate determination is the totality of circumstances ‘throughout the child’s entire life’”:
In R.D.J.’s case, this meant the jury was to consider the evidence of R.D.J.’s opportunities to exercise responsibility for T.S.J. over a period of years and his failure to take advantage of those opportunities. R.D.J. has not shown that his narrow reading of the statute (that it penalizes a parent solely for the failure to show that he has exercised responsibility for the child’s daily supervision and care when the State has made that impossible by placing the child in out-of-home care) was actually applied to him as the basis for the failure to assume grounds. Therefore, he has not shown that an as-applied challenge to the statute would have created a reasonable probability of a different result, and therefore his counsel’s failure to raise such a challenge did not prejudice him. Because he has not shown that the failure prejudiced him, he is not entitled to a new trial on the grounds of ineffective assistance of counsel.
R.D.J. finally advances the novel argument that a CHIPS order disproves failure to assume parental responsibility, because it “creates a court-ordered and court-supervised substantial parental relationship.” The court doesn’t agree, noting that the term “substantial parental relationship” is statutorily defined and that R.D.J.’s reading would produce an absurd result: “”t in every case in which there was an existing CHIPS order, a parent would be deemed to have a substantial parental relationship with their child even if the parent never contacted the child during the pendency of the order.” (¶26).