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Lack of follow up after unprotected sex cited as ground for TPR

State v. A.T., 2022AP544, 6/28/22, District 1, (1-judge opinion, ineligible for publication); case activity

Guys, if you have unprotected sex, call or text your partner after. And “Wisconsin law does not require courts to consider race or culture when determining whether to terminate parental rights.” Opinion, ¶29. Those are the two main takeaways from this TPR opinion.

In 2017, A.T., who is Hispanic,  and A.P. had sex without using birth control. He did not contact A.P. afterward to see if she might be pregnant. Then he was incarcerated. A.P. gave birth to their son in March 2018, but she did not name A.T. as a possible father until 2021. Too bad for A.T. He failed assume parental responsibility in part because he never asked A.P. whether he had impregnated her. Plus the courts weren’t impressed by his efforts to get his grandparents’ rights for his parents or concerns about his son’s cultural heritage. Termination of parental rights affirmed.

Grounds phase of trial. Here is how the court of appeals explained A.T.’s unfitness as a parent:

¶25 The evidence, viewed in the light most favorable to the court’s finding, supports the circuit court’s finding that A.T. failed to assume parental responsibility for B.P. We conclude that the circuit court’s fact finding was not clearly erroneous. A.T. did not attempt to discover whether A.P. got pregnant as a result of their unprotected sexual encounter. A.T. did not pay or offer to pay child support for B.P. before or after he was born. A.T. did not request visitation for himself. He did not ask about B.P.’s “education, health, welfare.” He did not exercise any responsibility for B.P.’s daily supervision, education, or care. Based upon the totality of the circumstances, there is sufficient evidence to support the circuit court’s finding that A.T. failed to assume parental responsibility for B.P. at anytime before or after establishing his legal relationship as the father; and therefore, A.T. is unfit.

Once A.T. learned that he had a son he tried to get grandparents’ rights for his parents. He argued that this showed that he intended to assume parental responsibility. The court of appeals disagreed because pursuing grandparents’ rights isn’t one of the factors listed in §48.415(6) governing failure to assume parental responsibility. Opinion, ¶25 n.5.

Disposition of phase trial. At this stage, the circuit court considers the best interests of the child. A.T. challenged the court’s application of the third factor–whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever those relationships. Wis. Stat. §48.426(3)(c).

Upon his birth, A.T.’s son was placed with a white foster family. He argued that there was no evidence that the foster family would raise his son as a Hispanic man and that it was in the child’s best interest to be connected with his father, grandparents, and extended family.

The court of appeals held that A.T. misunderstand the third “best interest” factor. The court doesn’t consider race, culture, or potential relationships with a parent or extended family. It only considers existing relationships, and here there were none. opinion, ¶¶28-29.




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