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Post-disposition change of child’s placement doesn’t merit new dispositional hearing

State v. T.L.T., 2016AP471, District 1, 8/26/16 (one-judge decision; ineligible for publication); case activity

Five months after the circuit court terminated T.L.T.’s parental rights to E.A.T., child welfare authorities moved E.A.T. from his foster placement with V.B. to a new adoptive foster home. T.L.T. argues the termination decision rested heavily on the prospect V.B. would adopt E.A.T., so the post-disposition change in placement materially affects that decision. (¶¶2-12). She asks the court of appeals to exercise its discretionary power to reverse under § 752.35 because the real controversy was not tried and justice miscarried. (¶¶15-16). The court of appeals declines.

First, the real controversy was tried:

¶19     …. [T.L.T.] contends on appeal that the post-disposition change in placement means that “[t]he real controversy as to whether it would be in [E.A.T.’s] best interests to terminate [T.L.T.’s] parental rights and allow the new placement to adopt [E.A.T.] has never been determined by the trial court.” (Emphasis added.) The issue, however, was never whether adoption by a specific person would be in E.A.T.’s best interests; rather, the question was, as a whole and in consideration of numerous factors, whether termination was in E.A.T.’s best interests.

¶20     Furthermore, the trial court clearly and specifically explained to the parties that it was making adoptability findings both generally—meaning whether E.A.T. was adoptable by anyone—and specifically in regard to E.A.T.’s adoptability by V.B. In discussing E.A.T.’s adoptability, the trial court explicitly found that in the “general sense”—meaning whether E.A.T. was adoptable by anyone—E.A.T. was “at the highest end of the middle range of adoptability.” In regard to adoption by V.B. specifically, the trial court found that E.A.T. was not “at the highest end even there” and that it did not consider E.A.T. “any higher than the middle of the high end of likelihood of adoption” by V.B. Additionally, the trial court explained that it could not guarantee that V.B. would adopt. Thus, there simply can be no doubt that the trial court, in concluding that termination was in E.A.T.’s best interests, contemplated that V.B. might not ultimately adopt E.A.T. even if T.L.T.’s parental rights were terminated. T.L.T. therefore has not established that the trial court was precluded from considering testimony that bore on an important issue. ….

Second, and for the same reasons, there’s no probability a new trial would result in T.L.T.’s rights not being terminated, so there’s no miscarriage of justice:

¶23      Contrary to T.L.T.’s assertion that “the trial court made it clear at the dispositional hearing that only the unique relationship between [V.B.], [E.A.T.,] and [T.L.T. ] justified termination of [T.L.T.’s] parental rights,” the record establishes that the trial court considered not only the relationship between E.A.T. and V.B. and V.B.’s testimony that she would allow E.A.T. to maintain contact with T.L.T. upon termination, but also that the trial court explicitly explained that it was evaluating E.A.T.’s likelihood of adoption both generally (by anyone) and specifically (by V.B.). The trial court explained that it was making both findings because it “[could not] guarantee that [V.B.] is going to adopt…. I can’t guarantee that it’s going to occur.”

¶24     Thus, while the trial court did consider the relationship between E.A.T. and V.B., as well as the likelihood that E.A.T. would be able to maintain contact with T.L.T. if adopted by V.B., the trial court was well aware at the time it made its ruling that E.A.T. might not remain with V.B. and that V.B. might not ultimately adopt E.A.T. Thus, the trial court did have an opportunity to consider whether termination was in E.A.T.’s best interests regardless of whether he was adopted by V.B. or adopted by an unknown party. ….

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