A parent’s failure to meet the conditions for the return of her child due to her incarceration is not a constitutional basis for finding her an unfit parent during the grounds phase of a TPR proceeding. Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. “Alexis” argued that the circuit court violated this rule when it found grounds to terminate her rights to “Tom” based on continuing CHIPS and failure to assume parental responsibility. The court of appeals disagreed.
To establish continuing CHIPS, the State had to prove, among other things, that Alexis failed to meet conditions for Tom’s return. In this case, two of those conditions were that Alexis had to (1) control her mental health and (2) not allow violence in her home or in front of her children.
The court of appeals held that regardless of Alexis’s incarceration she failed to meet these conditions. She had longstanding mental health issues. She took months to complete a psychological evaluation. Even though she engaged in therapy she continued to exhibit unpredictable moods. Opinion, ¶¶28-29. Furthermore, Alexis avoided or denied the existence of domestic violence in her life. She showed up at an appointment with a black eye and attributed it to cat allergies. She also kept a loaded gun in her home and used it to shoot “Tyler” who may have fathered her children. Opinion, ¶¶30-31.
To establish Alexis’s failure to parental responsibility for Tom, the State had to prove that she did not have a “substantial relationship” with him. When deciding this point for an incarcerated parent, the circuit court may consider whether the parent made appropriate efforts to communicate with the child, requested information relating to the child’s education, health, and welfare, and responded to others who tried to involve the parent in the child’s life. Opinion, ¶34 (citing WIS JI—CHILDREN 346B).
The court of appeals held that even if the circuit court did not explicitly relate its findings to these factors it clearly considered them. Alexis failed to show concern for Tom’s care by not seeking proper prenatal care or care throughout his life. She said she wanted to attend his medical appointments but never did by phone or otherwise. She showed no concern about his daycare. Alexis claimed that Tom’s foster mom had been refusing her calls, but the circuit court found contrary testimony more credible. Opinion, ¶35.
On this issue, the circuit court may, and in this case, did, consider whether the parent exposed her child to a hazardous living environment. The court of appeals held that the circuit appropriately pointed to Alexis’s denial of violence in her life, her black eye, and her possession of a gun in finding that she had failed to assume parental responsibility for Tom. Opinion, ¶37.