Tammy W-G. v. Jacob T.

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Appeal No. 2009AP2973 Cir. Ct. No, 2005T1P6

WISCONSIN COURT OF APPEALS
DISTRICT IV

IN RE THE TERMINATION OF PARENTAL RIGHTS TO
GWENEVERE T., A PERSON UNDER THE AGE OF 18:

TAMMY W-G., FI LED
PETITIONER-RESPONDENT,
APR 22, 2010
V.
David R_ Schanker
Cerk of Suprene Court
JACOBT.,
RESPONDENT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Dykman, P,J., Vergeront and Lundsten, JJ.

This case concems the proper interpretation of statutes goveming the
termination of parental rights. WISCONSIN STAT. § 48.415 (2007-08)' sets out
grounds for tenninating parental rights. The statute is seemingly structured such
that any one of these grounds provides a statutory basis for terminating parental
rights. At issue here is subsection (6) of § 48.415, addressing whether a parent has
established a “substantial parental relationship” with the child.

' All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.

No. 2009AP2973
2
We certify this case because we believe that State v. Quinsanna D.,
2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, prevents us from
interpreting WIS. STAT. § 48.415(6) in a manner that is consistent both with the
language of the statute and constitutional protections accorded parental rights. As
explained below, we believe that Quinsanna D. misinterprets § 48.415(6) as a
stand-alone test for unfitness, rather than as a threshold question addressing
whether a person has a constitutionally protected parental right requiring a finding
of unfitness before parental rights may be terminated.
The use of WIS. STAT. § 48.415(6) as a ground for termination of
parental rights where there has, at least arguably, been a substantial parental
relationship early in the child's life is a recurring issue, and we have pending at
least two appeals that present the issue. Accordingly, we believe it is appropriate
for certification.
BACKGROUND
Tammy and Jacob lived together throughout Tammy’s pregnancy
and for several months after Gwenevere’s birth in January 2005. According to
Tammy, Jacob attended most of her medical appointments during the pregnancy
and was present at Gwenevere’s birth. After Gwenevere’s birth, Tammy
described Jacob as a “stay at home dad” who provided primary care to Gwenevere
for approximately four months, both before and after Tammy returned to work.
Jacob gave similar testimony concerning his role in caring for Gwenevere for the
first four months of her life. In May 2005, however, Tammy separated from Jacob
and took Gwenevere with her. Jacob had very limited contact with Gwenevere
after the separation, consisting of a few phone calls and no more than three brief
visits, until Tammy filed the termination petition in April 2009.

No. 2009AP2973
3
The only ground for termination litigated at the fact-finding hearing
in August 2009 was Jacob’s alleged failure to assume parental responsibility. At
the close of evidence, Tammy moved for a directed verdict based on the evidence
that Jacob had played virtually no role in the child’s life for more than four years.
Jacob also moved for a directed verdict on the undisputed evidence that he had
assumed daily responsibility for Gwenevere during the first four months of her
life. The circuit court denied both motions, declaring that the jury should decide
which time period was more important in determining “substantial involvement of
the father with his daughter.” Without objection, the court instructed the jury as
follows:
Now the petition in this case alleges that Jacob [T.]
has failed to assume parental responsibility which is a
ground for termination of parental rights. Your role as
jurors will be to answer the following question in the
special verdict. Has Jacob [T.] failed to assume parental
responsibility for Gwenevere E. [T.]? Answer, yes or no.
To establish a failure to assume parental
responsibility, Tammy [G.], the Petitioner must prove by
evidence that’s clear, satisfactory, and convincing to a
reasonable certainty that the parent father has not had a
substantial relationship with Gwenevere [T.].
The term substantial parental relationship means the
acceptance and exercise of significant responsibility for the
daily supervision, education, protection, and care of the
child.
In evaluating whether Jacob [T.] has had a
substantial relationship with the child, you may consider
factors including, but not limited to, whether Jacob has
expressed concern for or interest in the support, care, or
well being of Gwenevere, whether Jacob has neglected or
refused to provide care or support for the child, and
whether he has expressed concern for or interest in the
support, care, or well being of the mother during her
pregnancy.

No. 2009AP2973
4
A lack—a parent’s lack of opportunity and ability to
establish a substantial parental relationship is not a defense
to failure to assume parental responsibility.
Before you may answer this special verdict question
yes, you must be convinced by evidence that’s clear,
satisfactory, and convincing to a reasonable certain[ty] that
the question should be answered yes. If you are not so
convinced, you must answer the question no.
The jury answered “yes” to the verdict question, resulting in an order for
termination on the ground that Jacob had failed to assume parental responsibility
for Gwenevere. Jacob then commenced this appeal.
DISCUSSION
WISCONSIN STAT. § 48.415 lists grounds for involuntarily
terminating parental rights. The statutory ground at issue here is found in
§ 48.415(6): “failure to assume parental responsibility.” This ground requires
proof that “the parent ... ha[s] not had a substantial parental relationship with the
child.” WIS. STAT. § 48.415(6)(a). “Substantial parental relationship” is defined
as “the acceptance and exercise of significant responsibility for the daily
supervision, education, protection and care of the child.” WIS. STAT.
§ 48.415(6)(b).
The statute goes on to provide the following guidance in determining
whether there has been a “substantial parental relationship”:
In evaluating whether the person has had a substantial
parental relationship with the child, the court may consider
such factors, including, but not limited to, whether the
person has expressed concern for or interest in the support,
care or well-being of the child, whether the person has
neglected or refused to provide care or support for the child
and whether, with respect to a person who is or may be the
father of the child, the person has expressed concern for or
interest in the support, care or well-being of the mother
during her pregnancy.

No. 2009AP2973
5
WIS. STAT. § 48.415(6)(b).
There are two aspects of establishing a “substantial parental
relationship” at issue in this case—the quality of parenting and the relevant time
period.
As to quality, neither party directly addresses what we believe is an
important issue; namely, whether a fact-finder may determine that, despite
significant parenting, poor quality parenting is a reason to find that a “substantial
parental relationship” has not been established. On this topic, Jacob argues that it
was undisputed that he was an attentive father who cared for Gwenevere during
the first few months of her life. It follows, according to Jacob, that the circuit
court erred when it denied his motion for a directed verdict.
Tammy disagrees. Before the jury, Tammy essentially conceded
that, if the jury considered only the time Jacob cared for Gwenevere, then Jacob
did have a substantial parental relationship. On appeal, however, Tammy asserts
that there was a factual dispute about the quality of care Jacob provided. Tammy
points to her own testimony asserting that, when Jacob was the primary parent,
their home was a “mess” with “mildew and mold” and “beer cans in the living
room that were unsafe.” Tammy argues, in effect, that a “substantial parental
relationship” was not established because of the poor quality of Jacob’s parenting.
As to time period, Jacob argues that once a “substantial parental
relationship” is established, the relevant time period ends and subsequent events
are not relevant to the issue of a substantial parental relationship. Thus, Jacob
argues that juries in such cases should receive the following instruction:
If you determine that [name of party] has at some time
established a substantial relationship with [name of child],

No. 2009AP2973
6
your inquiry ends there. You are not to decide whether [he
or she] maintained that relationship, once it was
established.
Applied here, Jacob argues that undisputed evidence that for the first four months
after Gwenevere’s birth Jacob was an attentive stay-at-home father establishes that
he had a “substantial parental relationship” with Gwenevere within the meaning of
WIS. STAT. § 48.415(6). Moreover, it was error for the court to permit evidence
and argument that such a relationship had not been established because of events
after that time period.
The parties’ discussion of the quality of care and the relevant time
period causes us to question our holdings in Quinsanna D. We begin with a
discussion of Quinsanna D., and then explain why we believe it may be
inconsistent with both the language of WIS. STAT. § 48.415(6) and constitutional
due process rights that must be accorded parents before parental rights may be
terminated.
In Quinsanna D., the State petitioned for termination of
Quinsanna’s parental rights to her twin sons alleging that Quinsanna had failed to
establish a “substantial parental relationship” under WIS. STAT. § 48.415(6).
Quinsanna cared daily for her twins for just over two years after their birth.
Quinsanna D., 259 Wis. 2d 429, ¶29. During that time, she exposed her children
to her own drug use and to the “drug house” run out of her home. Id., ¶32. After
this two-year period, there was a police raid at Quinsanna’s residence and the
twins were removed from Quinsanna’s care. Id., ¶4. Between the time the
children were removed and the termination trial, Quinsanna was convicted of
offenses stemming from the raid and was placed on probation, and then committed
new crimes which led to her being incarcerated. Id., ¶¶5-10. In particular, she

No. 2009AP2973
7
was convicted of theft, resulting in a thirty-day jail sentence, and obstruction,
resulting in revocation of her probation and a sixty-day jail sentence. Id., ¶¶7-8.
Approximately seven years after the twins were removed, the State petitioned for
termination of Quinsanna’s parental rights and, following a trial to a jury, her
rights were terminated. Id., ¶9.
In deciding Quinsanna’s appeal, we reached two conclusions that are
pertinent here. First, we agreed with the circuit court that evidence of two crimes
Quinsanna committed after the children were removed from her residence were
relevant to whether Quinsanna had a “substantial parental relationship.” Id., ¶18-
27. Second, we concluded that, despite undisputed evidence that Quinsanna
engaged in the daily supervision of her children, a reasonable jury could
nonetheless have found that Quinsanna did not ever have a “substantial parental
relationship” with her children because of the poor quality of her parenting. Id.,
¶¶29-32.
We believe that both of these holdings are problematic. First,
Quinsanna D. endorses the proposition that a parent can in fact engage in
substantial parenting, but not establish a “substantial parental relationship” if that
parenting also involves an undefined element of bad parenting. Second,
Quinsanna D. seemingly holds that events occurring after a time period during
which a parent engages in substantial parenting are relevant as to whether the
parent had a “substantial parental relationship.” In both instances, we now believe
that our opinion did not properly take into account the language of WIS. STAT.
§ 48.415(6) or the constitutional underpinnings of that statutory subsection.
It seems clear that Quinsanna’s parenting revealed her to be an unfit
parent, but there is a difference between the issue of “unfitness” and the threshold

No. 2009AP2973
8
issue of whether unfitness must be proved. The “substantial parental relationship”
test was established by the United States Supreme Court as a means of
determining when parental rights may be terminated without a showing of
unfitness. In Quilloin v. Walcott, 434 U.S. 246 (1978), the Court held that
termination of parental rights without a determination of unfitness was permitted
only because the parent there had “never exercised actual or legal custody over his
child, and thus has never shouldered any significant responsibility with respect to
the daily supervision, education, protection, or care of the child.” Id. at 256.
Conversely, where the parent had exercised “significant responsibility,”
termination was barred absent a finding of unfitness. See id.
WISCONSIN STAT. § 48.415(6) was enacted in 1979, and provided
that the parental rights of the father of a child born out of wedlock could be
terminated if the father did not establish a substantial parental relationship with the
child before adjudication of paternity. 1979 Wis. Laws, ch. 330, § 6. The statute
defined “substantial parental relationship” in terms almost identical to the Quilloin
“significant responsibility” test.2 See § 48.415(6)(b) (1979-80). Thus, it seems
apparent that § 48.415(6) was enacted in response to Quilloin, with the intent to
incorporate the Quilloin test as a threshold test for determining when a father’s
rights could be terminated. If that threshold test is not met, then termination of
parental rights under § 48.415(6) is permitted without a finding of unfitness. Cf.,
In Interest of Baby Girl K., 113 Wis. 2d 429, 443, 335 N.W.2d 846 (1983)
(termination under § 48.415(6) is constitutionally permissible without a finding of
2 Compare the United States Supreme Court’s phrase “significant responsibility with
respect to the daily supervision, education, protection, or care of the child,” Quilloin v. Walcott,
434 U.S. 246, 256 (1978), with the phrase “significant responsibility for the daily supervision,
education, protection and care of the child” used in WIS. STAT. § 48.415(6)(b) (1979-80).

No. 2009AP2973
9
unfitness where the father completely failed to participate in the raising of the
child); see also In Interest of J.L.W., 102 Wis. 2d 118, 136, 306 N.W.2d 46
(1981) (where mother had physical custody during most of the first four months of
the child’s life, due process requires a finding of unfitness).
Accordingly, it appears that the “substantial parental relationship”
standard in WIS. STAT. § 48.415(6) must be viewed as a threshold question. If a
parent has had a “substantial parental relationship,” then his or her parental rights
may not be terminated without a showing of unfitness. When properly viewed as
a threshold issue, it becomes apparent why the § 48.415(6) standard should not be
treated as a test for unfitness. In keeping with this view, the Baby Girl K. court
observed: “[C]ommentators have suggested that the failure of a parent to
participate at all in raising of the child may eliminate the constitutional
requirements for a finding of unfitness.” Baby Girl K., 113 Wis. 2d at 443
(emphasis added).
We now turn our attention to the statutory language indicating once
a “substantial parental relationship” has been established, subsequent events are
not relevant. The statute requires proof that “the parent ... ha[s] not had a
substantial parental relationship with the child.” WIS. STAT. § 48.415(6)(a)
(emphasis added). Thus, the statute does not speak in terms of viewing a parent’s

No. 2009AP2973
10
relationship as a whole, but rather in terms of whether the parent has, at some
time, established a “substantial parental relationship.”3
Turning to the facts in this case, but for Quinsanna D., we would
reject Tammy’s argument that evidence that Jacob kept a sloppy and somewhat
unsafe house provides a basis to find that Jacob did not establish a “substantial
parental relationship.” It appears to us that, under a proper interpretation of WIS.
STAT. § 48.415(6), the undisputed evidence of Jacob’s parenting during the
months following Gwenevere’s birth easily meets a correct interpretation of the
“substantial parental relationship” test. However, Tammy’s quality of care
argument appears viable under Quinsanna D. At a minimum, there is a need for
clarification of Quinsanna D. on this topic.
Similarly, but for Quinsanna D., we would conclude that the events
after Tammy left with Gwenevere are not relevant. The question for the jury in
this case should have been whether, prior to the time Tammy and Gwenevere left,
Jacob had a substantial parental relationship with Gwenevere. If he did,
subsequent neglect does not undo the fact that Jacob “had” a substantial parental
relationship and, therefore, due process required a showing of unfitness before his
parental rights could be terminated.
We believe that Quinsanna D. not only wrongly interpreted WIS.
STAT. § 48.415(6), but that it conflicts with the constitutional rights attached to
3 WISCONSIN STAT. § 48.415(6) has been amended several times. The test for
termination has evolved from a father who “[has] never had a substantial parental relationship,”
to parents who “have never had a substantial parental relationship,” to, presently, parents who
“have not had a substantial parental relationship” with the child. See State v. Bobby G., 2007 WI
77, ¶¶66-88 & n.38, 301 Wis. 2d 531, 734 N.W.2d 81 (providing an extended and detailed
description of the legislative history of § 48.415(6) through its 2005 amendment).

No. 2009AP2973
11
termination proceedings. Treating the quality of Jacob’s parenting and his
subsequent absence from Gwenevere’s life as relevant to a finding under
§ 48.415(6) would mean that the “substantial relationship” test is more than a
threshold determination of whether there is a constitutionally protected parental
right. Instead, this interpretation treats the ground as a stand-alone unfitness test
without the defenses to unfitness provided in other provisions of § 48.415. For
example, here the most obvious issue was whether Jacob was unfit because he had
abandoned Gwenevere within the meaning of § 48.415(1). Under that subsection,
Jacob would have the defenses listed in § 48.415(1)(c). Similarly, if the quality of
the parent’s care is at issue, the ground that the child is in need of protection or
services requires, among other things, that the parent has had the opportunity to
meet the conditions for a safe return of the child, with a reasonable effort made by
the county to provide court-ordered services. See § 48.415(2).
We believe the supreme court should accept this certification and
resolve the ambiguities and uncertainties regarding the use of WIS. STAT.
§ 48.415(6) as a ground to terminate parental rights. If the supreme court believes
that the legislative intent was to permit termination based on either the proximity
in time or the duration of the parent-child relationship, or its quality, then we
believe the supreme court should consider whether that interpretation of the statute
comports with the constitutional protections afforded parents.

No. 2009AP2973
12