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TPR – Constitutionality of § 48.415(6); Interest of Justice Review – Jury Instructions, Failure to Assume Parental Responsibility

Langlade County Dept. of Social Services v. Rebecca D., 2010AP2497, District 3, 11/15/11

court of appeals decision (1-judge, not for publication); for Rebecca D.: William E. Schmaal, SPD, Madison Appellate; case activity

¶19      On the facts adduced at trial, Rebecca clearly failed to assume parental responsibility for Anthony, pursuant to the standards set forth in Wis. Stat. § 48.415(6). Anthony was nearly five months old when he was removed from Rebecca’s home.  At the time of trial, he was nearly three years old and had been in foster care for two and one-half years.  During those two and one-half years, Rebecca failed to meet the conditions for Anthony to be returned to her home.  Rebecca failed to maintain regular contact with Fischer about Anthony’s well-being, and Fischer frequently had to call Rebecca to find out why Rebecca had not been in touch with the County, whether Rebecca wanted to visit Anthony, and whether she was complying with the conditions in the CHIPS order.

¶22      On these facts, it is clear that Rebecca did not have a “substantial parental relationship” with Anthony over the course of his life.  See Wis. Stat. § 48.415(6)(a). Rebecca simply did not, under any stretch of the imagination, “accept[] and exercise … significant responsibility for [Anthony’s] daily supervision, education, protection and care.”  See Wis. Stat. § 48.415(6)(b) (emphasis added).  Instead, after the first five months of his life, she visited him sporadically, failed to maintain regular contact with him, and failed to keep in touch with the County about his well-being and the steps she needed to take to comply with the CHIPS order.  Although she stated she could not visit Anthony because she did not have money for gas, the evidence showed that she failed to take advantage of other transportation opportunities.  It took the jury only sixteen minutes to conclude Rebecca had failed to assume parental responsibility for Anthony.  Rebecca’s conduct clearly falls within the core proscriptions of Wis. Stat.§ 48.415(6).  Accordingly, she cannot challenge the statute on vagueness grounds.  See Ruesch, 214 Wis. 2d at 561.

¶25      Rebecca concedes that, aside from some minor deviations, the court’s instruction was “essentially in conformity” with the applicable standard jury instruction,Wis JI—Children 346.  However, she argues that, in light of our supreme court’s holding in Tammy W-G., the court should have instructed the jury that it must consider “the reasons why [Rebecca] may not have had a substantial parental relationship with Anthony H. during his entire life[.]”  See Tammy W-G., 333 Wis. 2d 273, ¶3 (The jury’s analysis under Wis. Stat. § 48.415(6) “may include the reasons why a parent was not caring for or supporting her child[.]”).

¶26      We conclude the circuit court’s instruction on failure to assume parental responsibility did not prevent the real controversy from being fully tried.  At trial, Rebecca testified about her reasons for failing to assume parental responsibility for Anthony.  Neither the court nor the County made any effort to prevent Rebecca from introducing this evidence or from arguing that it justified her failure to maintain contact with Anthony.  Specifically, Rebecca testified that the reason she failed to visit Anthony regularly for two and one-half years was that she lacked money to fuel or repair her car.  However, Rebecca did not explain why she failed to take advantage of transportation provided by the County and Anthony’s foster mother.  She did not explain why she failed to ask her boyfriend for help with transportation, or why she lent her income tax refund to her daughter’s father instead of using it to pay for gas or car repairs.  Rebecca also failed to explain why her transportation problems prevented her from calling Anthony or sending him cards and presents.  We agree with the circuit court that, even without a jury instruction, “there was testimony in the record that addressed [Rebecca’s] concerns,” and Rebecca’s reasons for failing to assume parental responsibility for Anthony were “essentially before the jury during the trial.”  A new trial in the interest of justice is not warranted.

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