TPR — failure to assume parental responsibility: sufficiency of evidence; constitutionality of ground as applied

Langlade County DSS v. Michael P., 2013AP385, 2013AP386, & 2013AP387, District 3, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP385; 2013AP386; 2013AP387

Sufficiency of evidence

Based on the entire record of the fact-finding hearing, the court of appeals concludes there was sufficient evidence that Michael P. failed to assume parental responsibility, despite his testimony tending to show he did assume responsibility:

¶26 …[I]t is clear that Michael did not have a “substantial parental relationship” with his children over the course of their lives. See Wis. Stat. § 48.415(6)(a). Although Michael did testify that he cared for his children when they lived in Beloit, always called and asked about his children when they lived with [their mother] in Antigo, and was hindered by the County in getting the children placed with him and visiting them, this self-serving testimony does not mean insufficient evidence supported the jury’s verdict. The jury is the arbiter of witness credibility and was free to reject Michael’s account and accept opposing evidence. …. Based on the record, we conclude the evidence sufficiently supports the jury’s determination that Michael failed to assume parental responsibility.

Constitutionality of failure to assume ground as applied

The court concludes the ground of failure to assume was not unconstitutional as applied to Michael, rejecting his argument that the County prevented him from assuming parental responsibility and then petitioned to terminate his parental rights on that basis reliance, and distinguishing Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845:

¶31 …. Unlike the impossible housing condition imposed on the mother in Jodie W., nothing in the record indicates the County or the CHIPS orders made it impossible for Michael to “accept[] and exercise … significant responsibility for the daily supervision, education, protection and care of the child[ren].” See Wis. Stat. § 48.415(6)(b).

¶32 Rather, the evidence presented at trial shows the County actively encouraged and tried to assist Michael in assuming parental responsibility. …. Despite the County’s efforts, Michael had only sporadic contact with his children. That Michael did not sufficiently maintain contact with his children while they were in the County’s care does not mean the County prevented him from assuming parental responsibility.

¶33 Further, contrary to Michael’s suggestion, this is not a case where the only evidence of a parent’s failure to assume parental responsibility occurred after the children were placed in the County’s care. The evidence at trial showed that even before the children were removed from [their mother’s] care, Michael did not accept or exercise significant responsibility for them. We conclude the failure to assume parental responsibility ground is not unconstitutional as applied to Michael.