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CHIPS order didn’t violate right to substantive due process

State v. J.S., 2015AP707, District 1, 3/15/16 (one-judge decision; ineligible for publication); case activity

Applying the failure to assume parental responsibility statute, § 48.415(6), to J.S. did not violate his right to substantive due process because J.S.’s own behavior, not the CHIPS order removing his daughter S.L. from her parental home, was what prevented him from taking part in S.L.’s daily supervision and care.

¶21     The crux of J.S.’s argument is that despite efforts to form and maintain a bond with his daughter, the CHIPS order, and the resulting safety plan, prevented him from “provid[ing] his daughter’s daily care.” Accordingly, his substantive due process rights were violated because he did not have an opportunity to assume parental responsibility within the meaning of the statute.

¶22     J.S.’s argument asks us to take a limited view of the record and to determine, based on this limited view, that the failure to assume parental responsibility ground has been unconstitutionally applied to him. While the record does show that J.S. had visitation with his daughter and attempted to form a bond with her, J.S. ignores the majority of the record which shows that J.S.’s lack of a relationship with S.L. resulted from his own actions.

In particular: J.S. engaged in violent behavior toward S.L.’s mother, A.L., so the child welfare agency and his probation agent ordered him not to have contact with A.L.; he violated that rule, prompting the agency to remove S.L. from A.L.’s home. J.S. was also incarcerated multiple times while the CHIPS order was in effect. (¶¶2-3, 6-12). “Had J.S. abided by the … rules and avoided behaviors resulting in his incarceration, J.S. could have had maintained unsupervised visits with S.L. The fact that S.L. was taken into protective custody and was the subject of a CHIPS order did not prevent J.S. from taking part in S.L.’s daily care—J.S.’s own actions did.” (¶23).

Also, the evidence was sufficient to support the verdict that J.S. had no substantial parental relationship with S.L. as defined in § 48.415(6)(b):

¶29     J.S.’s view of the record is limited to testimony supporting his contention that he made efforts to bond with his child. J.S. largely ignores the majority of the record which demonstrates a vast history of violence between J.S. and the mother of his child, as well as highlighting the role J.S.’s own conduct played in hindering his relationship with his daughter. J.S.’s actions do not establish that he expressed concern for A.L. or her well-being at any point during her pregnancy or after. Even prior to S.L.’s birth, J.S. and A.L. had a volatile relationship marred with violence. During A.L.’s pregnancy, and even following S.L.’s birth, the violence continued, with J.S. attempting to run A.L. over with his car. J.S. repeatedly and knowingly violated his probation rules and DMCPS rules by maintaining contact with A.L., even secretly living with A.L. at one point. J.S.’s actions led to multiple periods of imprisonment, hindering his visitation with his child. The record thus supports the jury’s findings.

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