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TPR – Totality of Circumstances Test

D’Ann K. v. Benjamin J. G., 2010AP1655, District 4, 7/20/11

court of appeals decision (1-judge, not for publication); for Benjamin J.G.: Gina Frances Bosben; case activity

With failure to assume parental responsibility as the ground for termination, Benjamin G. “argues that the court did not properly apply the totality of the circumstances test established in Tammy W-G. because it failed to consider Benjamin’s testimony that D’Ann [the guardian] failed to return his phone calls.” The court rejects the argument:

¶11      The court considered Benjamin’s entire relationship with Sasha.  While the court found that Benjamin did have a substantial parental relationship with Sasha while she was an infant, it determined that over the course of Sasha’s life, Benjamin had not had a substantial relationship with her.  In making this determination, the circuit court considered many factors, including Benjamin’s infrequent contacts with Sasha over the previous three years, his failure to make inquiries regarding her health and welfare, the lack of financial support he provided to Sasha, and the fact that he had failed to adjudicate Sasha’s paternity, despite past experience doing so with another child. Although the court did not expressly address in its oral ruling after the evidentiary hearing Benjamin’s testimony that D’Ann did not always return his phone calls, it implicitly found that Benjamin’s attempts to see Sasha more often were not substantial, and it explicitly made this finding after the dispositional hearing.  Furthermore, although Benjamin concedes that his alleged lack of opportunity to see Sasha is not a complete defense, he presents no additional arguments.

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