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Parental Responsibility / Fitness, § 48.415(6) – Relevance of Father’s Conduct After Discovery He Is Child’s Father

State v. Bobby G., 2007 WI 77, reversing a summary order remanding the case to the court of appeals.


¶5 For the reasons set forth, we hold that in determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under Wis. Stat. § 48.415(6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case proceeded under an erroneous interpretation of the statute. Accordingly, the facts were not fully developed; to the extent facts were developed, these facts and their import are in dispute. The parties disputed whether Bobby G. assumed parental responsibility after he learned of his paternity but before adjudication of the grounds for termination. Accordingly, with facts in dispute, the circuit court erred as a matter of law in granting partial summary judgment. Moreover, Bobby G. requested a jury trial, which the circuit court denied because it erroneously found no material facts or inferences therefrom in dispute. Neither the circuit court nor this court can deprive Bobby G. of a jury trial by deciding the factual dispute. [6]

[6] A circuit court may direct a verdict in the grounds phase of a termination of parental rights proceeding. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).

The opinion weighs in at 71 pages, ¶155¶¶, much of it consumed by lengthy recitation of the legislative history. In any event, if you provide TPR representation you’ll want to read the whole thing. If there’s a meta-message it might be: just because summary judgment is authorized doesn’t mean it’s favored.

¶90 Bobby G.’s responses to the State’s interrogatories should have alerted the circuit court that Bobby G. was trying to establish a parental relationship with Marquette after he had reason to believe that he was Marquette’s father. Summary judgment was inappropriate because material facts were presented disputing the State’s claim that Bobby G. never assumed parental responsibility for Marquette.

And very much relatedly: “The legislature expressly intended to protect, whenever appropriate, the biological family unit,” ¶57. If there’s any doubt on these points, chew on the opening lines of the dissent:

¶111 Could a cocaine- pushing, woman-battering man, who does not even know about the existence of his child, have accepted and exercised “significant responsibility for the daily supervision, education, protection and care of the child”? Wis. Stat. § 48.415(6)(b) (2003-04).

¶112 If that is too close of a call, consider the same question, only the person admitted he never exercised responsibility for the daily supervision of the child, never exercised responsibility for the education of the child, never paid child support, and never met the child. Plus, he has been incarcerated for the vast majority of the child’s life.

¶113 The circuit court answered no. Such a person has not assumed parental responsibility pursuant to Wis. Stat. § 48.415(6). The majority concludes the circuit court erred. “[T]he circuit court in the instant case proceeded under an erroneous interpretation of the statute” by failing to “consider the biological father’s efforts undertaken after he discover[ed] that he is the father but before the circuit court adjudicate[d] the grounds of the termination proceeding.” Majority op., ¶5.

¶114 The plain language of the Children’s Code contradicts the majority’s interpretation of § 48.415(6). Accordingly, I respectfully dissent


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