court of appeals certification; for Jacob T.: Eileen A. Hirsch, SPD, Madison Appellate
TPR – Grounds
We certify this case because we believe that State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, prevents us from interpreting Wis. Stat. § 48.415(6) in a manner that is consistent both with the language of the statute and constitutional protections accorded parental rights. As explained below, we believe that Quinsanna D. misinterprets § 48.415(6) as a stand-alone test for unfitness, rather than as a threshold question addressing whether a person has a constitutionally protected parental right requiring a finding of unfitness before parental rights may be terminated.
Subsection (6) requires proof that the parent lacks “a substantial parental relationship with the child,” defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.” This was the sole ground alleged to support termination of Jacob T.’s rights. He cared for the child the first several months following birth (poorly, according to Tammy), but had no role after that. Can the quality of care be factored into the determination of a substantial relationship? And, once a substantial relationship is established, are subsequent events even relevant to the existence of such a relationship? Quinsanna D. says yes to both, but the certification now questions its reasoning and conclusions.
Accordingly, it appears that the “substantial parental relationship” standard in Wis. Stat. § 48.415(6) must be viewed as a threshold question. If a parent has had a “substantial parental relationship,” then his or her parental rights may not be terminated without a showing of unfitness. When properly viewed as a threshold issue, it becomes apparent why the § 48.415(6) standard should not be treated as a test for unfitness. In keeping with this view, the Baby Girl K. court observed: “[C]ommentators have suggested that the failure of a parent to participate at all in raising of the child may eliminate the constitutional requirements for a finding of unfitness.” Baby Girl K., 113 Wis. 2d at 443 (emphasis added).
Appears that, but for Quinsanna D., Jacob T.’s termination would be reversed. Which is to say, the matter is entirely in the supreme court’s hands.