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TPR — Exercise of discretion in determining disposition

Barron County v. Tara H., 2012AP2390, District 3, 1/15/13

Court of appeals decision (1-judge, ineligible for publication); case activity

TPR — Exercise of discretion in determining disposition

The circuit court erroneously exercised its discretion by failing to consider one of the six factors under § 48.426(3)–specifically, whether the child had a substantial relationship with Tara or other family members, and whether it would be harmful to sever those relationships; instead, the court treated that factor as being determined by the finding Tara failed to assume parental responsibility:

¶16      We, however, conclude that a court’s determination that a parent lacked a “substantial parental relationship” with the child, as used in Wis. Stat. § 48.415(6), does not excuse the court from considering whether the child has a substantial relationship with the parent.  After all, our supreme court has stated that, when considering whether the child has a substantial relationship, Wis. Stat. § 48.426(3)(c) “unambiguously require[s] that a circuit court evaluate the effect of a legal severance on the broader relationships existing between a child and the child’s birth family.  These relationships encompass emotional and psychological bonds fostered between the child and the family.”  State v. Margaret H., 2000 WI [42], ¶21, [234] Wis. 2d 606, 610 N.W.2d 475.  However, in the grounds phase, when determining whether a parent has a “substantial parental relationship” with a child, no consideration is given to any emotional and psychological bond that the child may have with the parent.  See Wis. Stat. § 48.415(6).  Instead, “substantial parental relationship,” as used in § 48.415(6), is defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.”  We agree with Tara that, even if the court determined the evidence showed a parent failed to assume parental responsibility because the parent lacked a “substantial parental relationship” with the child, the court must still consider whether the child has any substantial emotional or psychological bond with the parent at the dispositional hearing.

¶17      Further, even if we were to assume that Tara’s lack of a parental relationship with Jeramiha automatically established that he, in turn, did not have a substantial relationship with her, the circuit court still failed to consider Jeramiha’s relationship with his other birth family members and it never considered whether it would be harmful to Jeramiha to sever those relationships.  See Wis. Stat. § 48.426(3)(c).  The County does not refute Tara’s contention that the court failed to make these considerations.  Instead, it suggests that the court was not required to consider any relationship Jeramiha had with Tara’s family members or whether Jeramiha would be harmed by serving these relationships because Tara did not introduce evidence establishing an emotional connection between Jeramiha and her family members and she did not introduce evidence showing that Jeramiha would be harmed by severing his relationships with her or her family.

¶18      We disagree with the County that the record is completely lacking in these areas. The record shows that Tara’s mother used to babysit Jeramiha and Tara’s sister used to supervise Tara’s visits with him.  Additionally, the dispositional report filed by the county social worker stated that Jeramiha had a relationship with Tara and was excited to see her during visits.  In Margaret H., [234] Wis. 2d 606, ¶35, our supreme court stated that “the record should reflect adequate consideration of and weight to each factor” listed in Wis. Stat. § 48.426(3).  (Emphasis added.)  Nothing in the record reflects that the court considered the entirety of the Wis. Stat. § 48.426(3)(c) factor.  We conclude the circuit court erroneously exercised its discretion by failing to give proper consideration to that factor.

The court also rejects the county’s argument that any error was harmless based on the circuit court’s consideration of the other factors in  § 48.426(3). Citing the preference expressed in Margaret H. “for remanding to the circuit court when confronted with inadequate findings, particularly in family law or domestic relations actions,”  234 Wis. 2d 606, ¶38, the court reverses and remands to the circuit court for a dispositional hearing at which the court must consider all the factors enumerated in Wis. Stat. § 48.426(3), including subsection (c).

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