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TPR – Grounds: “Substantial Parental Relationship” – “Significant” Parenting – Proof; As-Applied Challenge

Tammy W-G. v. Jacob T., 2011 WI 30, on certification; for Jacob T.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

TPR – Grounds, § 48.415(6) – “Substantial Parental Relationship”

¶22  The language of Wis. Stat. § 48.415(6), specifically the underscored language, indicates that under § 48.415(6), a fact-finder must look to the totality-of-the-circumstances to determine if a parent has assumed parental responsibility.  With regard to the relevant time period, the fact-finder should consider the circumstances that have occurred over the entirety of the child’s life.[7] The fact-finder may also consider whether a parent exposed her child to a hazardous living environment.

¶32  Consistent with our past decisions, under a totality-of-the-circumstances analysis, the fact-finder can and should consider the reasons why a parent has not supported or cared for her child.  See L.K. v. B.B. (Baby Girl K.), 113 Wis. 2d 429, 442, 335 N.W.2d 846 (1983) (“A court cannot ignore the circumstances of why this father was not physically available from the fifth month of pregnancy.  He was convicted and sentenced for burglary.  This was not a case of being absent because of illness, military service or the demands of a job.  His absence was due to incarceration from the wilful act of burglary.”).  Ann M.M. v. Rob S., 176 Wis. 2d 673, 685, 500 N.W.2d 649 (1993) (“[W]e cannot ignore the fact that any roadblock to establishing a relationship with SueAnn caused by [the father’s] arrest, bond, and conviction was produced by [the father’s] own conduct.”).[11]

¶33  Jacob argues that under the plain language of Wis. Stat. § 48.415(6), if a parent cares for his child for a distinct and relatively short period of time, he must be found to have “assumed parental responsibility.” …  While a parent can “take up” parental responsibility for one day, the statute cannot easily be read to protect the rights of a parent who cared for and supported his child for this limited time period.


[7] Per Wis. Stat. § 48.415(6), the fact-finder should consider whether a father expressed concern and support for the mother during pregnancy and therefore, the relevant time period should include the time the child was in utero.  Hereinafter, we will refer to the child’s time in utero and after birth, collectively, as the “child’s life.”  This is for the ease of reading.

[11] Contrary to Jacob’s assertion, our decision does not defeat the rights of parents whose military service or illness prevents them from caring for their children for extended periods of time.

The Chief Justice, in dissent, would hold that whether a substantial parental relationship exists is a question of law for the court, not one of fact for the jury, ¶¶74-93.

TPR – Grounds – “Significant” Parenting

¶36  The second certified question is … whether the fact-finder may consider whether a parent exposed her child to a hazardous living environment, as opposed to the consideration of the amorphous term, “quality of parenting.”

¶37  We conclude that under the totality-of-the-circumstances test, a fact-finder may consider whether, during the time the parent was caring for his child, he exposed the child to a hazardous living environment.  Supervision, protection and care of a child, by definition, involve keeping that child out of harms way.

¶38  In sum, when applying Wis. Stat. § 48.415(6), the fact-finder should consider the involvement of the parent over the entirety of the child’s life.  The plain language and legislative history of § 48.415(6) support this interpretation, an interpretation that will avoid absurd results.  Moreover, although a parent’s lack of opportunity to establish a substantial relationship is not a defense to failure to assume parental responsibility, the reasons for a parent’s lack of involvement still may be considered in the totality-of-the-circumstances analysis.  The fact-finder may also consider whether the parent, while caring for the child, exposed the child to a hazardous living environment.[13]


[13] Jacob argues that this interpretation of Wis. Stat. § 48.415(6) renders other grounds for termination, specifically § 48.415(1), “Abandonment,” and § 48.415(2), “Continuing need of protection or services,” superfluous.  However, both those grounds require a fact-finder to consider different factors than § 48.415(6).  For example, under § 48.415(1), there are grounds for termination if a parent leaves a child without provisions for care and support, and the petitioner is unable to find either parent of the child for 60 days.  Under § 48.415(2), the grounds for termination are based largely on the child’s placement outside the home.  Consequently, while there may be fact situations where there would be grounds for terminations under numerous subsections, there could also be fact patterns where § 48.415(1) and (2) would provide grounds for the termination of parental rights when § 48.415(6) does not.  Therefore, our interpretation of § 48.415(6) does not render other subsections superfluous.

Justice Bradley and Chief Justice Abrahamson, dissenting, would hold that “(o)nce parent has assumed a substantial parental relationship with the child, failure to maintain that parental relationship is not grounds for termination under sub. (6).  Due process requires that other grounds for termination (see, e.g., abandonment, Wis. Stat. § 48.415(1)), be proven before parental rights can be involuntarily terminated,” ¶95.

TPR – Grounds – Sufficiency of Proof

The evidence supported the jury finding that Jacob failed to assume parental responsibility:

¶40  In the four-and-a-half years of Gwenevere’s life leading up to the fact-finding hearing, Jacob had actual custody of Gwenevere for only the first four months.  He never had legal custody of her.  Moreover, after month four, he provided Gwenevere no financial or material support.  Consequently, Jacob supported Gwenevere, with regard to both care and finances, for only a small portion of her life.

¶41  In addition, Jacob’s contact with Gwenevere after his move to Illinois in May 2005 does not demonstrate that he had a “substantial parental relationship” with Gwenevere.  Since she was approximately five months old, Jacob has had in-person contact with Gwenevere, at most, three times, and each visit was of short duration.  Moreover, Jacob’s calls to Tammy and Gwenevere were infrequent, and a jury could easily have found that there were extremely long periods of time, even a year’s length, when Jacob did not contact Gwenevere.  Finally, there was no evidence Jacob sent Gwenevere cards, birthday or holiday gifts, however small, or had any other contact with her besides the few short visits and infrequent phone calls.  This is far from “daily” care.

Obstacles the mother placed in the way “may have been frustrating for Jacob [but] do not excuse him from his parental responsibilities to Gwenevere,” 42. The court stresses that the child lived “only a few hours’ drive away,” and that Jacob wasn’t prevented from seeing her due to “financial or other disabilities,” id.

TPR – As-Applied Constitutional Challenge

¶60  In sum, under Supreme Court jurisprudence, a liberty interest protected by the Due Process Clause arises only when biological parents have taken sufficient steps to establish and protect those rights.

¶61  Similarly, we have acknowledged that when a parent has not taken advantage of the opportunity to develop a relationship with his offspring and accept responsibility for the child’s future, no liberty interest protected by substantive due process arises.  Randy A.J., 270 Wis. 2d 384, ¶20.

¶69  Based on both the Supreme Court precedent and our own precedent, we conclude that Wis. Stat. § 48.415(6) was constitutionally applied to Jacob.  The fact-finder determined that Jacob failed to assume parental responsibility for Gwenevere.  Jacob did not assume, or take steps to assume, emotional or financial responsibility for Gwenevere.  He provided insufficient evidence to show that he had a protected liberty interest in his parental relationship with her.  Quilloin, 434 U.S. at 256; Randy A.J., 270 Wis. 2d 384, ¶20.  Without a protected liberty interest, we consider whether, as applied to Jacob, the statute is rationally related to a legitimate legislative interest.  Kelli B., 271 Wis. 2d 51, ¶17.

¶70  There is a legitimate legislative interest in keeping an existing family unit intact.  We note that one of the legislative purposes of the Children’s Code is “to preserve the unity of the family.”  Wis. Stat. § 48.01(1).  Gwenevere has been living in a family unit with Tammy, Douglas, and her half sisters for most of her life.[22] By terminating Jacob’s rights, Douglas will be able to adopt Gwenevere, therefore recognizing the existing family unit and the only family unit that Gwenevere knows.  There is also a legitimate legislative interest in providing stability for the child.  § 48.01(1).  Stability may be provided through the daily care and protection given to a child.  Jacob has had almost no contact with and has provided no support to Gwenevere for almost four years.  In contrast, Gwenevere’s mother and step-father have provided her with a stable place to grow.  It is they who have promoted the legislative interest in stability for the child.  Accordingly, we conclude that Wis. Stat § 48.415(6) was constitutionally applied to Jacob because its application to Jacob is rationally related to legitimate legislative interests.

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