May 24, 2011 – A father who did not maintain a “substantial parental relationship” with his child served as grounds for involuntary termination of his parental rights, the Wisconsin Supreme Court recently concluded.
A Wisconsin mother petitioned the circuit court to involuntarily terminate the parental rights of her child’s father, who lived in Illinois and had limited contact with the child. In Tammy W-G. v. Jacob T., 2011 WI 30 (May 17, 2011), the supreme court ruled (5-2) in favor of the mother.
In a majority opinion written by Justice Patience Roggensack, the court clarified the correct interpretation of Wisconsin statutes relating to involuntary termination, an interpretation Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley rejected in separate dissents.
Facts and procedure
Under Wis. Stat. section 48.415, a court or jury must determine at a fact-finding hearing whether grounds exist to terminate parental rights upon petition. The mother (Tammy) petitioned to terminate the parental rights of her child’s father (Jacob).
Failure to “assume parental responsibility,” established by proving the parent “ha[s] not had a substantial parental relationship with the child,” is a ground for termination under section 48.415(6). This provision lists several factors “the court” may consider in making this determination, such as whether the person has expressed an interest in the child’s well-being.
In this case, Jacob and Tammy had a daughter while living together in Minnesota. For the first four months of the daughter’s life, Jacob helped care for her.
The couple split in May 2005, and Jacob moved to Illinois. They agreed on a custody plan, but Tammy refused to adhere based on her belief that Jacob had alcohol and drug problems. Thus, Tammy required supervised visitations in the event that Jacob visited.
Jacob visited his daughter two to three times between 2005 and 2006, called about the child “randomly,” but did not see or visit his child in 2007 or 2008. Jacob did not provide material or financial support. In 2009, Tammy petitioned the court for termination of Jacob’s parental rights to allow her new husband to legally adopt the child.
At the close of a fact-finding hearing, the jury determined Jacob failed to assume parental responsibility. After the circuit court terminated Jacob’s parental rights, he appealed, and the appeals court certified the appeal to the supreme court.
Interpreting state statute
The majority ruled that section 48.415(6) requires a fact-finder to consider a parent’s actions throughout the entirety of a child’s life, not for a limited time period. That is, a substantial parental relationship once established does bar termination in the future.
This “totality of the circumstances” test allows a fact-finder to examine the parent’s conduct over the entire course of the child’s life, Justice Roggensack explained. Under this test, Jacob did not demonstrate that he had a substantial parental relationship with his child.
“[T]he legislature kept the relevant time period broad, allowing the fact-finder to consider the child’s entire life and decide if, based on all the facts, a parent has assumed parental responsibility,” Justice Roggensack wrote.
Constitutionality of the statute
The supreme court also determined that section 48.415(6), as applied to Jacob, “comports with constitutional protections afforded to parents.”
Justice Roggensack recognized that parents who have a parental relationship with their children have a constitutionally protected interest in the care, custody, and control of their children. Accordingly, parents have fundamental due process rights.
However, examining U.S. Supreme Court jurisprudence on the issue, the majority concluded that due process rights arise “only when biological parents have taken sufficient steps to establish and protect those rights.”
“Jacob failed to assume, or take steps to assume, emotional or financial responsibility for [his child],” Justice Roggensack wrote. “He provided insufficient evidence to show that he had a protected liberty interest in his parental relationship with her.”
Without a protected liberty interest, strict scrutiny does not apply, Justice Roggensack noted. Thus, the statute is constitutional as applied to Jacob because it is rationally related to the legitimate legislative interest in “keeping an existing family unit intact” and “providing stability for the child,” the majority explained.
Chief Justice Shirley Abrahamson dissented, arguing that a “determination of whether a substantial parental relationship exists is a question of law for the court,” not the jury. The chief justice noted that section 48.415(6)(b) expressly requires “the court” to consider the factors in determining whether a substantial parental relationship exists. Thus, it was error for the circuit court to ask that question of the jury.
“The importance of faithfully adhering to the statutory language becomes clearer when the statute is examined in light of the fundamental constitutional rights affected in a termination of parental rights proceeding,” Chief Justice Abrahamson wrote.
Justice Ann Walsh Bradley (joined by Chief Justice Abrahamson) wrote a separate dissent, concluding that “Jacob has had a substantial relationship with his child.”
“Rather than asking whether a parent ‘has had’ a substantial parental relationship – as the statute directs – the majority asks whether there ‘is’ a substantial parental relationship,” Justice Bradley wrote. “As a result, the majority provides unclear guidance to fact-finders and undermines constitutional protections.”
Justice Bradley argued that Jacob assumed parental responsibility by providing support through the pregnancy and daily care and supervision when the child was an infant.
“Once a parent has assumed substantial parental relationship with the child, failure to maintain that parental relationship is not grounds for termination,” Justice Bradley wrote.
Assistant State Public Defender Eileen A. Hirsch represented the father, Jacob. Nathanial Curry of Kopp McKichen LLP, Platteville, represented the mother, Tammy. Ryan K. Dalton of McNamara, Reinicke & Vogelsberg LLP, Lancaster, filed a guardian ad litem brief.