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Conditionally admitting evidence during TPR grounds hearing when evidence was relevant only to disposition was harmless error

Dane County DHS v. Nancy M., 2013AP1886 & 2013AP1887, District 4, 2/13/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1886; 2013AP1887

During the first day of a fact-finding hearing to the court to determine whether there were grounds to terminate Nancy’s parental rights, the trial court admitted evidence about Nancy’s bonding with her two children. Nancy objected, and the County and GAL agreed the line of questioning was not relevant to the grounds phase of the TPR proceeding, although it would later be relevant in the dispositional phase, if grounds were found. (¶5). The circuit court agreed the testimony was not relevant to the grounds phase but explained that it would allow the testimony on the premise that the court would merely “store” the testimony and then “pull it back out” in the event that the TPR proceeded to the dispositional phase. (¶6). On the second day of trial, however, the court said it had reconsidered the propriety of conditionally admitting the specialist’s testimony during the grounds phase, and decided it had been “too creative procedurally”; it retrospectively sustained Nancy’s objection to the testimony and ordered it stricken. (¶8). The court ultimately found grounds to terminate and proceeded to disposition, at which point the bonding testimony was admitted. (¶9).

The court of appeals rejects Nancy’s argument she should get a new trial due to the trial court’s erroneous “conditional” admission of the bonding evidence at the grounds hearing. First, it’s not clear the trial court erred at all, as it ultimately sustained Nancy’s objection and struck the evidence. (¶17). Second, Nancy analogizes the error here to cases where evidence was erroneously admitted during a jury, as opposed to court, trial: In a trial to the court, even if evidence is improperly admitted, it is presumed that the error is harmless unless it is clear that, but for such evidence, the court’s decision would probably have been different, because a circuit court is presumed to disregard inadmissible evidence, McCoy v. May, 255 Wis. 20, 25-26, 38 N.W.2d 2 (1949). And even without that presumption,  the record reflects sufficient evidence on which the circuit court could find that the County proved the ground on which it petitioned (continuing need of protective services); thus, the court of appeals is not persuaded that but for the bonding testimony, the circuit court’s findings would have been different. (¶20-25).

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