In re the Termination of Parental Rights To Gwenevere T.

• Citation: 797 N.W.2d 854,2011 WI 30
• Decision Date: 17 May 2011
• Docket Number: No. 2009AP2973.,2009AP2973.
• Parties: In re the termination of parental rights to GWENEVERE T., a person under the age of 18.Tammy W–G., Petitioner–Respondent,v.Jacob T., Respondent–Appellant.
• Court: United States State Supreme Court of Wisconsin

797 N.W.2d 854

2011 WI 30

In re the termination of parental rights to GWENEVERE T., a person under the age of 18.Tammy W–G., Petitioner–Respondent,

v.Jacob T., Respondent–Appellant.

No. 2009AP2973.

Supreme Court of Wisconsin.

Argued Oct. 1, 2010.Decided May 17, 2011.

For the respondent-appellant there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.For the petitioner-respondent there were briefs and oral argument by Nathaniel W. Curry, Kopp McKichan, LLP, Platteville.A guardian ad-litem brief was filed by Ryan K. Dalton, McNamara, Reinicke, & Vogelsberg LLP, Lancaster, and oral argument by Ryan K. Dalton.An amicus curiae brief was filed by Winn Collins, Green Lake County District Attorney, Green Lake, and Elisabeth A. Mueller, assistant Milwaukee County district attorney, Wauwatosa for Wisconsin District Attorneys Association.

ON CERTIFICATION FROM THE COURT OF APPEALS

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 This case comes before us by certification from the court of appeals. Certification was recommended to “resolve the ambiguities and uncertainties regarding the use of Wis. Stat. § 48.415(6) as a ground to terminate parental rights.” Tammy W–G. v. Jacob T., No. 2009AP2973, unpublished slip op., at 11, 2010 WL 1609902 (Wis.Ct.App. Apr. 22, 2010). The certified questions are:

(1) Whether “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”;

(2) “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”; and

(3) Whether our interpretation of Wis. Stat. § 48.415(6) as it relates to the preceding two issues “comports with the constitutional protections afforded parents.”

¶ 2 In addition, Jacob argues that: (1) the circuit court erred when it denied his motion for a directed verdict, and (2) he should be granted a new trial in the interest of justice because the jury instruction was incomplete and inaccurate.

¶ 3 We conclude that Wis. Stat. § 48.415(6) (2007–08) ¹ prescribes a totality-of-the-circumstances test. When applying this test, the fact-finder should consider any support or care, or lack thereof, the parent provided the child throughout the child's entire life. This analysis may include the reasons why a parent was not caring for or supporting her child and exposure of the child to a hazardous living environment. We further conclude that the statute was not unconstitutional as applied to Jacob. Finally, the circuit court did not err when it denied Jacob's motion for a directed verdict and Jacob waived his argument that the jury instruction was improper. Accordingly, Jacob's parental rights were lawfully terminated; we affirm the judgment of the circuit court.

I. BACKGROUND

¶ 4 Gwenevere was born to Tammy W–G. (Tammy) and Jacob T. (Jacob) in mid-January of 2005. Tammy and Jacob lived together for approximately a year before Gwenevere was born. During Tammy's pregnancy, Jacob left his job to take care of Tammy who was on “extreme bed rest.” Moreover, he accompanied Tammy to doctor appointments, was at Gwenevere's delivery, and was excited about the baby.

¶ 5 For the first two months of Gwenevere's life, Tammy and Jacob were both home full-time, but then Tammy returned to work. In the following two months (approximately months three and four of Gwenevere's life), Jacob was, as Tammy phrased it, a “stay at home dad.” During the first four months of her life, Jacob participated in feeding, changing, and otherwise caring for Gwenevere. In addition, both he and Tammy took Gwenevere to her doctor's appointments. However, Tammy testified that when she came home from work, she would take Gwenevere to the bedroom for the night because the house was a mess, there was mildew covering the dishes, and beer cans in the living room. In 2005, Jacob and Tammy agreed to move from Minnesota to Illinois. However, in May 2005, only Jacob moved to Illinois. Tammy moved into the home of Douglas G. (Douglas), whom she subsequently married.

¶ 6 At the time of their separation, Jacob and Tammy agreed to a custody plan in which Gwenevere would spend two months with Tammy, followed by two months with Jacob. However, Tammy testified that she refused to go through with the plan because of concerns about Jacob's alcohol abuse and “drug paraphernalia” ² and the effect this could have on Gwenevere's safety.

¶ 7 Following Jacob's May 2005 relocation to Illinois, he had little contact with Gwenevere. He drove from his home in Illinois to Minnesota to visit Gwenevere either two or three times ³ between 2005 and 2006. The first visit was in either July or August of 2005. The visit lasted approximately one-and-a-half hours.

¶ 8 Tammy testified that Jacob's second visit was in July of 2006. Tammy could not recall how long that visitation lasted. Jacob, however, did not mention this visit in his testimony and asserted that there have been only two visits since he moved to Illinois. Jacob and Tammy both testified that there was a final visit with Gwenevere in November of 2006. There is no evidence that the second and third visits were of any substantial length. Jacob has not had in-person contact with Gwenevere since that time.

¶ 9 Between July of 2005 and November of 2006, Jacob testified that he called Tammy with regard to Gwenevere, but that his calls were “random.” Specifically, Jacob said he “didn't do it like every week or every two weeks.” Moreover, Jacob testified that he spoke with Gwenevere on the phone two to three times between 2007 and 2008; however, Tammy did not recall any contact, via phone or otherwise, between Jacob and Gwenevere in 2007. Throughout this time, Tammy updated Jacob when her contact information changed. Of note, in 2006, Tammy, Douglas, Gwenevere, and the couple's other two daughters moved to a city in southwest Wisconsin only two hours from Jacob's Illinois residence. Jacob was aware of their relocation.

¶ 10 Jacob explained that his lack of contact with Gwenevere from the summer of 2005 up until trial was not the result of Tammy's refusal to let him see Gwenevere, but rather her condition that these visits be supervised. Specifically, Tammy required that Jacob's visits with Gwenevere be supervised by Tammy, Douglas, or someone that Jacob hired.⁴

¶ 11 Since Jacob's move to Illinois in 2005, he has not provided any financial or material support for Gwenevere. He has never paid child support to Tammy for Gwenevere's care or taken steps to set up child support. Jacob did testify that he offered money to Tammy for Gwenevere's care after the two split, but that she refused his offer.⁵ Jacob admitted that he did not know who Gwenevere's pediatrician was, what school she was attending or her teacher's name. Additionally, he has never sought assistance from the courts to have contact or placement. Except during the first four months of Gwenevere's life when Tammy and Jacob lived together, Jacob has never taken Gwenevere to her doctor appointments.

¶ 12 Jacob's final contact with Gwenevere before the August 2009 fact-finding hearing was a call in mid-January 2009 on Gwenevere's fourth birthday. During this call, Tammy and Jacob discussed a potential visit in February that never took place. Tammy also told Jacob she wanted to have Jacob's rights terminated so that Douglas could adopt Gwenevere.

¶ 13 On April 8, 2009, Tammy filed a petition in Grant County Circuit Court to terminate Jacob's parental rights. The petition was amended on May 20, 2009. It claimed Jacob's rights should be terminated because he had failed to assume parental responsibility as defined in Wis. Stat. § 48.415(6). A fact-finding hearing was heard by a jury on August 13 and 14 of 2009.

¶ 14 At the close of the fact-finding hearing, the circuit court denied motions from each party for a directed verdict and, instead, instructed the jury to determine if Jacob assumed parental responsibility for Gwenevere. Neither party objected to the jury instructions, which instructed the jury to answer a special verdict question: “Has Jacob [ ] failed to assume parental responsibility for Gwenevere [ ]?” The jury answered “yes” by a vote of eleven to one. Subsequently, on September 10, 2009, at the dispositional hearing, the circuit court terminated Jacob's parental rights.

¶ 15 Jacob appealed the termination of his parental rights to the Wisconsin Court of Appeals. The court of appeals determined that its holding in State v. Quinsanna D., 2002 WI App 318, 259 Wis.2d 429, 655 N.W.2d 752, prevented it “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.” Tammy W–G., No. 2009AP2973, at 2. Therefore, the court of appeals certified the appeal, which we accepted pursuant to Wis. Stat. § 808.05.⁶ We now affirm the decision of the circuit court.

II. DISCUSSION

A. Standard of Review

¶ 16 The interpretation of Wis. Stat. § 48.415(6) and the application of that statute to a given set of facts are questions of law that we review independently. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110. Whether a statute and the application of a statute are constitutional are also questions of law that we review independently. Dane Cnty. Dep't of Human Servs. v. Ponn P., 2005 WI 32, ¶ 14, 279 Wis.2d 169, 694 N.W.2d 344.

¶ 17 We examine as a question of law whether the circuit court properly refused to grant a directed verdict. See Bubb v. Brusky, 2009 WI 91, ¶ 30, 321 Wis.2d 1, 768 N.W.2d 903. We independently review, as a question of law, whether the evidence is sufficient to support the jury's verdict. State v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752 (1990).

B. Wisconsin Stat. § 48.415(6): Failure to Assume...