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No error in handling testimony regarding non-appearing parent in TPR trial

Monroe County DHS v. J.N.D., 2018AP177, District 4, 8/23/18 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects J.N.D.’s argument that her TPR trial should be redone because the real controversy wasn’t fully tried.

J.N.D. and B.S. are the parents of G.S. The county petitioned to terminate their parental rights on continuing CHIPS grounds and there was a joint trial. B.S. failed to appear the first day of trial, though the social worker involved in the case testified about both parents on the first day of trial. When B.S. again failed to appear for the second day of trial, the court granted a default judgement against him. The proceedings against J.N.D. continued, which included more testimony from the social worker about J.N.D. (¶¶2-4).

J.N.D. argues the real controversy wasn’t fully tried because one of the conditions of return of G.S. was that if J.N.D. was involved in a relationship with another person, the other person must be appropriately responsible regarding parenting duties. (¶8). Because J.N.D. and B.S. were still in a relationship at the time of trial, granting the default judgment against B.S. effectively “lightened” the county’s burden of proof on the continuing CHIPS ground, apparently because it meant B.S.’s lawyer never got to cross examine the social worker. Or so J.N.D. argues. But the court of appeals doesn’t agree: “J.[N.]D. … does not explain how or why the absence of cross-examination of [the social worker] by B.S.’s trial counsel ‘improperly lightened’ the County’s burden of proving that there was a substantial likelihood that she would not satisfy condition eleven in the nine months following trial, or how or why her testimony so clouded that question that the issue was not fully tried.” (¶10).

She also argues the circuit court improperly instructed the jury about handling the social worker’s testimony regarding B.S., but the court rejects this claim because she “does not point this court to any legal authority supporting her assertion that the court’s instruction was erroneous, nor does she explain how or why the instruction, or lack of a better instruction, prevented the jury from determining whether there was a substantial likelihood that J.D. would meet condition eleven, or any other condition of return, in the next nine months.” (¶13).

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