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TPR – Interests of Justice Review; IAC; Dispositional Hearing – GAL

Kathleen N. v. Brenda L. C., 2010AP2737, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Brenda l.C.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Brenda isn’t entitled to a new TPR trial in the interests of justice, notwithstanding a line of inquiry that went to the respective financial capabilities of Brenda and her sister’s family (which sought the termination). “The evidence established that Brenda had last seen Samantha approximately six months prior to the hearing at a family gathering and had only spoken to Samantha at that event for a few minutes, Samantha’s last communication with Samantha on Samantha’s birthday back in January 2010.” The jury was properly instructed on the “questions it was required to answer in determining whether Brenda had abandoned Samantha and/or failed to assume parental responsibility for her,” and presumptively followed those instructions – nothing in the improper line of inquiry supports the idea the real controversy wasn’t tried, ¶¶17-18.

Counsel’s failure to object to the evidence discussed immediately above didn’t prejudice Brenda, within the meaning of the test for ineffective assistance of counsel. Nor was Brenda prejudiced by a failure to investigate the number of times Brenda had seen the child at family gatherings – even if she could have used this to defend against the abandonment allegation, it wouldn’t have affected the separate allegation of failure to assume parental responsibility, ¶26.

¶30      Brenda contends that she is entitled to a new dispositional hearing because the court, in deciding to terminate Samantha’s parental rights, considered an improper factor—the recommendation by an inappropriately appointed GAL that her parental rights be terminated.  Relying on Wis. Stat. § 48.235(1)(g), which states that a court “shall appoint a guardian ad litem for a parent who is the subject of a termination of parental rights proceeding” if an examination shows the parent to be incompetent, Brenda argues that her GAL was not properly appointed because the circuit court did not first conduct a competency determination.  Brenda’s reliance, however, is misplaced.  Section 48.235(1)(a) grants the circuit court discretion in appointing a GAL “in any appropriate matter” under  ch. 48.  See also, Judicial Council Note, 1990, § 48.235 (stating subsection (1) “indicates when a guardian ad litem is to be appointed, leaving broad discretion to the court for such appointments.”)

¶31      A court properly exercises its discretion if the record shows that the court exercised its discretion and a reasonable basis exists for its determination.  Tralmer Sales & Serv., Inc. v. Erickson, 186 Wis. 2d 549, 573, 521 N.W.2d 182 (Ct. App. 1994).  Here, the circuit court was aware that Brenda is cognitively disabled.  In exercising its discretion to appoint the GAL, the court noted that the appointment of the GAL would “serve as a great benefit to the Court.”  Regardless of whether Brenda was technically incompetent, her cognitive disability was a reasonable basis for the court to appoint a GAL under Wis. Stat. § 48.235(1)(a).  Accordingly, this court holds that the circuit court did not erroneously exercise its discretion in appointing the GAL and, thus, that the court’s reliance on the GAL’s recommendation was not an improper factor upon which to rely.

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