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TPR – Evidence – Child’s Mental Health Problems; Prior Voluntary Termination – Harmless Error

Rock County HSD v. Jennifer B., 2011AP1524, District 4, 9/8/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Gina Frances Bosben; case activity

Evidence of the child’s diagnoses (ADHD; PTSD) was relevant to the main issue in contention, and was not unduly prejudicial, hence was admissible in the grounds phase of the TPR trial.

¶15      The question for the jury was whether there was a substantial likelihood that Jennifer would not “meet the child’s physical, educational, medical, and emotional needs on a daily basis” within the next nine months.  To answer this question, the jury needed to know what Mercedes’ needs were, including her mental health needs.  Further, the therapist’s testimony revealed that some of the likely causes of Mercedes’ problems related to Jennifer.  That information was plainly relevant to whether Jennifer could meet Mercedes’ needs in the future.  Similarly, Mercedes’ treatments were relevant because it was established that Mercedes needed a stable environment and regular medication for her treatment to be effective, and it was in dispute whether Jennifer could provide the needed level of stability and attention necessary to regularly medicate Mercedes.

La Crosse Cnty. Dep’t of Human Servs. v. Tara P., 2002 WI App 84, ¶¶10-12, 252 Wis. 2d 179, 643 N.W.2d 194 (“facts occurring prior to a CHIPS dispositional order are frequently relevant to the issues at a termination proceeding”) also relied on: The present case provides an example of just such a situation, where a prediction of Jennifer’s future ability to meet Mercedes’ needs is the focus of the proceeding and there is reason to believe that past events, when Mercedes was in Jennifer’s care, have contributed to Mercedes’ problems.”

Brief mention by a therapist that the parent had voluntarily terminated her rights to another child was, if error, harmless, ¶¶21-32.

Highly fact-specific result. General principles include recitation of test for harmless error, ¶22, citing Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698: “Error is harmless when there is no ‘reasonable possibility that the error contributed to the outcome of the action or proceeding at issue.’ … ‘A reasonable possibility of a different outcome is a possibility sufficient to ‘undermine confidence in the outcome.’” Court also stresses that parent was offered, but rejected, curative instruction, ¶23, citing State v. Collier, 220 Wis. 2d 825, 837, 584 N.W.2d 689 (Ct. App. 1998) for idea that “Potential prejudice is presumptively erased when admonitory instructions are properly given by a trial court.”

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