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Defense win! Circuit court didn’t err in declining to terminate parental rights

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).

At the fact-finding phase a jury found there were continuing CHIPS grounds to terminate C.B.’s parental rights, so the case moved to the disposition. (¶¶2-3). After a day-long hearing with seven witnesses and 60 exhibits, the circuit court determined that terminating C.B.’s parental rights was not in the children’s best interests and found that monitoring the welfare of C.B.’s children through the ongoing CHIPS cases was appropriate. (¶4).

Whether to terminate parental rights is a discretionary decision, and the court of appeals makes short work of the County’s complaint that the circuit court erroneously exercised its discretion in this case:

¶13     …. It is sufficient to note that the circuit court explicitly considered and balanced all the factors enunciated in Wis. Stat. § 48.426(3) in reaching its decision. Also, the circuit court carefully weighed the evidence regardless of whether it favored, or did not favor, the Department’s position.

¶14     The Department argues that “the circuit court … chose to in effect vacate the jury verdict as to C.B.” There is no basis for that assertion. Because the circuit court came to a reasonable decision after employing a rational thought process based on careful examination of the relevant facts and applying the correct standard of law, I conclude that the circuit court did not erroneously exercise its discretion in concluding that C.B.’s parental rights should not be terminated.

The County made additional arguments about specific factors the circuit court considered, but the court of appeals finds those arguments undeveloped or wrong because the factors were relevant and appropriate considerations. (¶¶15-19). The County also argues C.B. “forfeit[ed]” her parental rights by not filing enough motions in the CHIPS cases to attempt to see her children. The court of appeals says this argument as “remarkable” because it’s without legal basis and, in fact, is contrary to the basic rule that the parent-child relationship is a fundamental liberty interest and courts “indulge every reasonable presumption” against the loss of fundamental constitutional rights. (¶20).

The County’s due-process challenges to the circuit court’s decision fare no better. First, it claims the circuit court prejudged the case because it said at the dispositional hearing it had “been weighing these [dispositional] factors for months, even before we went to jury trial, looking at [Wis. Stat. §] 48.426.” (¶23). Not so, says the court of appeals:

¶28     The court’s comment … did not amount to a prejudgment of this case. Here, the court merely indicated that it had been “weighing” the factors for some time. Contrary to the Department’s assertion, the circuit court’s comment did not indicate that “the circuit court had made up its mind on disposition prior to the dispositional hearing.” Rather, the circuit court implied that this was a difficult decision that had been weighing on the court for a long period of time. That the circuit court may have been aware of the statutory factors prior to the actual dispositional hearing does not violate due process because the circuit court did not indicate a decision was already made. Moreover, the decision of the circuit court at the conclusion of the dispositional hearing shows that the case was not prejudged in any way. As mentioned, the circuit court weighed the statutory factors and other applicable factors based on the findings reached by the circuit court based on evidence in the record. Simply because the Department did not get the result it wanted does not mean that there was any bias which affected the circuit court’s decision. Therefore, the court’s comment did not amount to objective bias….

Second, the County argues the circuit court violated its due process rights by relying on documents from the underlying CHIPS cases without giving the County the opportunity to “consent” to the use of the documents. This argument “collapses on examination”: The County was a party in the CHIPS cases, the judge hearing the TPR had presided in the CHIPS cases, and the TPR grounds were continuing CHIPS based on those cases, so it was reasonable for the circuit court to be aware of and consider documents in the CHIPS files. (¶¶29-31).

Appellate practice pointer: Don’t level personal, ad hominem attacks against the circuit court:

Another argument made by the Department must be mentioned. The Department contends that the circuit court’s findings and conclusions at the dispositional phase “resemble[s]” “dictatorial systems of justice.” The fact that the Department lost at the dispositional phase of this case does not justify baseless and disrespectful comments about the circuit judge who presided at that hearing. That the statement quoted above was qualified by the Department in some very minor way, and that the Department claims that this was not an “attack” on the circuit judge, does not change the fact that the statement is baseless and disrespectful. The argument is not worthy of an attorney who practices before this court and, if a statement like that is made again in this court by that attorney, he may be subject to sanctions. For now, this admonition will suffice. (¶28 n.6).

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