The evidence regarding the mother’s interaction with her daughter over the daughter’s entire lifetime was sufficient to support the jury’s determination that the mother failed to assume parental responsibility.
Melissa cared for her daughter Catie for the first seven weeks of Catie’s life, before Melissa incarcerated for a probation violation, and thereafter maintained contact with Catie during the times she was incarcerated and was allowed visits—both supervised and unsupervised—with Catie after she was released from prison. (¶¶2-6). She argues this evidence precludes a finding of failure to assume parental responsibility, but the the court of appeals rejects this argument under Tammy W-G. v. Jacob T., 2011 WI 30, 333 Wis. 2d 273, 797 N.W.2d 854:
¶23 Melissa’s view of the record focuses primarily on a very short period of Catie’s life and ignores Tammy W-G.’s holding that whether a parent has assumed parental responsibility pursuant to Wis. Stat. § 48.415(6) is a question of fact for the factfinder and that the factfinder must consider the totality-of-the-circumstances over the child’s entire lifetime. See Tammy W-G., 333 Wis. 2d 273, ¶38. The record demonstrates that the reason Catie was only in Melissa’s care for the first seven weeks of her life was because at that time, Melissa was taken into custody for violating probation, had her probation revoked, and was thereafter incarcerated for over two years. After she was released from prison in November 2012, Melissa moved to Wausau despite the fact that her daughter was in foster care in Milwaukee. Although Melissa did have both supervised and unsupervised visits with Catie after being released from prison, during one of those unsupervised overnight visits, Melissa was arrested for retail theft in April 2013. The BMCW continued to work with Melissa, and the BMCW even put together a plan for a trial reunification in late 2013. The trial reunification ultimately did not occur, however, because the BMCW learned that Melissa had been arrested in October and November 2013. Melissa was then taken into custody on January 15, 2014, her probation was revoked, and she was incarcerated for an additional nine months after a revocation hearing.
¶24 In light of the totality-of-the-circumstances test applied over Catie’s entire lifetime, there is sufficient evidence in the record to support the jury’s conclusion that Melissa did not assume parental responsibility within the meaning of Wis. Stat. § 48.415(6). ….
Having found sufficient evidence for the failure to assume ground, the court doesn’t have to consider Melissa’s challenge to the jury’s finding on the alternative ground of continuing CHIPS. But it does anyway, and not surprisingly rejects the challenge. Melissa argued that § 48.415(2) was unconstitutional as applied to her under Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, because the jury was allowed to consider the time periods that she was incarcerated when determining whether she had met the conditions for return and if she could meet the remaining conditions in the nine months following the dispositional hearing. But Jodie W. does not prohibit a jury from considering the time period a parent is or was incarcerated in determining whether grounds exist for termination of parental rights, and in fact confirms that a parent’s incarceration is relevant and that “the parent’s relationship with the child … both prior to and while the parent is incarcerated” is one of the factors that must be considered in determining whether grounds for termination exist under § 48.415(2). Jodie W., 293 Wis. 2d 530, ¶50 (emphasis added). Further, even if the jury had—or should have—only considered whether Melissa had failed to meet the conditions of return while she was not incarcerated, substantial evidence in the record supports the jury’s finding. (¶¶25-28).
Finally, Melissa argues that the trial court erred in considering testimony of the potential adoptive parent that she intended to allow the child to maintain contact with the biological family if parental rights are terminated. Melissa points out this statement of intent, however well-intentioned, is illusory and nonbinding. Nonetheless, it didn’t render the court’s termination decision infirm. The court properly exercised its discretion in reaching the termination decision, as it extensively addressed each of the factors relating to the best interest of the child listed under § 48.426(3). Moreover, the supreme court implicitly affirmed consideration of similar testimony from an adoptive parent in Darryl T.-H. v. Margaret H., 2000 WI 42, ¶¶9, 30-31, 234 Wis. 2d 606, 610 N.W.2d 475. (¶¶29-38).
The termination of Catie’s father’s parental rights is affirmed in a separate decision.