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TPR — failure to assume parental responsibility; sufficiency of the evidence

Patrick J.T. v. Shelly S., 2013AP778 and 2013AP779, District 4, 6/13/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP778; 2013AP779

Under the totality-of-the-circumstances standard for determining whether a parent has assumed parental responsibility, Tammy W-G. v. Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d 854, the evidence was sufficient to establish that Shelly S. was an unfit parent because she failed to assume parental responsibility under Wis. Stat. § 48.415(6).

Shelly had a substantial relationship with her two children until 2007, when one child was 6 years, 5 months old and the second child was 4 years, 7 months old. (¶¶4-6). At that point she and the father, Patrick J.T., stipulated to amend their divorce judgment to give Patrick legal custody and primary physical placement while she sought mental health treatment. (¶¶6-8). Between 2007 and 2012, when Patrick filed the TPR petition, Shelly had much less contact, though why that happened was disputed: Patrick testified (based on a journal he claimed to have kept) that Shelly contacted him only sporadically to visit or discuss the children; Shelly claimed Patrick was interfering with her ability to contact and interact with the children, though she did not seek another modification of the divorce judgment, as she couldn’t afford a lawyer. (¶¶9-13). The circuit court found Patrick to be “more reliable” and, based on the evidence of Shelly’s limited contact with the children, concluded Shelly failed to “protect and nurture” her relationship with her children and had thus failed to assume parental responsibility. (¶14).

The court of appeals affirms, rejecting Shelly’s argument that because she had a substantial parental relationship with the children for approximately the first half of their lives, she assumed parental responsibility for the children within the meaning of § 48.415(6):

¶19      …[T]he court in Tammy W-G. foreclosed this argument, holding that when amending the language to Wis. Stat. § 48.415(6), “the legislature refused to require a fact-finder to consider a specified time period” but instead, “kept the relevant time period broad, allowing the fact-finder to consider the child’s entire life and decide if, based on all the facts, a parent has assumed parental responsibility for his or her child.” 333 Wis. 2d 273, ¶27. Moreover, the court in Tammy W-G. noted that the words “‘significant’ and ‘daily’” in the statute “do not indicate that the assumption of parental responsibility is established when the parent has cared for the child for only a short portion of the child’s life.” Id., ¶25.

Thus, under Tammy W-G., “the [trial] court properly considered Shelly’s relationship with the children throughout their entire lives and concluded, under the totality of the circumstances, that Shelly had not had a substantial parental relationship with them. See Tammy W-G., 333 Wis. 2d 273, ¶¶22-23.” (¶20). Further, the trial court considered proper factors under the totality-of-the-circumstances analysis, and the evidence presented at the fact-finding hearing was sufficient to support the court’s determination that Shelly was an unfit parent in failing to assume parental responsibility for her children. (¶21).

Is it accurate to say Tammy W-G. forecloses Shelly’s argument? Maybe, if her argument is that her parenting before 2007 definitively established she had assumed parental responsibility and that nothing after 2007 matters. (Even if that was Shelly’s argument, it differs factually from the parent’s claim in Tammy W-G. that a distinct, relatively short period of time—as little as 100 days—would suffice to assume parental responsibility, 333 Wis. 2d 273, ¶¶31, 33.) But Shelly’s argument appears to be a straightforward sufficiency claim: Under the totality-of-the-circumstances test, over the children’s entire lives, the evidence shows Shelly had a substantial parental relationship, with the strength and depth of Shelly’s early years of parenting overcoming the weaker years after 2007.

Far from foreclosing that sufficiency argument, Tammy W-G. essentially demands it, for the test adopted in that case requires an amorphous, ill-defined balancing of all the facts, leaving the fact finder to engage more in an exercise of intuition than an application of a legal standard. Shelly’s case bears out the lack of a meaningful standard. Compare her case to Tammy W-G., where the father helped the mother during pregnancy and the first four months of the child’s life, but then moved out of state and had only sporadic, limited contact for the next four years of her life, at which point the mother filed a TPR petition. 333 Wis. 2d 273, ¶¶4-13. That the same result is reached in cases as disparate as Shelly’s and Tammy W-G. tells us Tammy W-G.‘s interpretation of the statutory standard is fundamentally flawed.

The dissent in Tammy W-G. foresaw this problem when it said the majority holding compounded the “ambiguities and uncertainties” in § 48.415(6) and raised potential constitutional problems. 333 Wis. 2d 273, ¶128 (Bradley, J., dissenting). In aptly noted that the totality test apparently allows the fact-finder to base its determination on a recent period of absence or poor quality parenting, rather than on whether the parent “has had” a substantial parental relationship, as the statute requires. Id., ¶130. That in turn means the existence of a substantial relationship, the very premise for the parent’s protected liberty interest, see Lehr v. Robertson, 463 U.S. 248 (1983), “is in constant flux, depending upon the totality of the circumstances at any given moment.” Id., ¶128; see also id., ¶131. But “[t]he existence of a liberty interest protected by the state and federal constitutions cannot be so ephemeral.” Id., ¶132. Maybe this case will get the supreme court to fix its approach to § 46.415(6).

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