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TPR – Directed Verdict, Authority to Order; Failure to Assume Parental Responsibility

State v. Cedrick M., 2010AP3011, District 1, 8/30/11

court of appeals decision (1-judge, not for publication); for Cedrick M.: John J. Grau; case activity

Directed verdict as to grounds for termination held permissible, citing Door Cnty. DHFS v. Scott S., 230 Wis. 2d 460, 602 N.W.2d 167 (Ct. App. 1999), ¶¶10-11. The trial court was empowered to exercise this authority sua sponte, ¶12.

Analogy to caselaw limitations on stipulation to an element without the parent’s explicit assent held inapt, ¶¶14-17.

Termination on ground of failure to assume parental responsibility didn’t violate Cedrick M.’s right to due process:

¶22      Cedrick M.’s recitation of the facts surrounding Heaven M.’s placement outside the home omits several relevant facts.  First, on the day that Heaven M. was removed, Cedrick M. had a warrant out for his arrest for threatening a caseworker for his older daughter.  In addition, as a result of an earlier psychological examination, Cedrick M., who was found to have a major mental illness, was required to undergo therapy to obtain custody of his older daughter, which he declined to do.  The evaluation also detected that Cedrick M. abused drugs and alcohol and that he had violent episodes.  Indeed, Nikisha H. accused him of domestic abuse.  Further, the current caseworker testified that Heaven M. would not have remained in the home had she known that Cedrick M. was living there.  In addition, Cedrick M. paid no child support, provided no material goods for Heaven M., and never attempted any form of communication with Heaven M. after she was placed outside the home.  Based on these facts and applying the totality-of the-circumstances test, Cedrick M. never assumed parental responsibility for Heaven M., and a strict scrutiny test was not necessary in this case.  See Tammy W-G., 333 Wis. 2d 273, ¶¶52-53.  In applying the rational basis test to the failure to assume parental responsibility statute, this court is satisfied that the statute was applied constitutionally.  This is so because the application of the statute bore a rational relationship to a legitimate legislative objective; i.e., permanency for Heaven M.  See id.

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