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TPR – Condition of Return; Best Interests Analysis

State v. Abigail W., 2010AP2792, District 1, 2/10/11

court of appeals decision (1-judge, not for publication); for Abigail W.: Jeffrey W. Jensen; case activity

TPR – Condition of Return

CHIPS condition that parent “show that you can care for and supervise your child properly and that you understand [her] special needs” wasn’t an impossible condition but, rather, was narrowly tailored to meet compelling State interest in protecting child’s safety, and therefore didn’t violate substantive due process. Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, distinguished.

¶19      In sum, Abigail made great strides in caring for her daughter, but her limitations prevented her from consistently providing a safe home for Aaliyah.  The condition that she “show that you can care for and supervise your child properly and that you understand [her] special needs” was never met.  As noted, Abigail would often lose focus when caring for her daughter.   She also had trouble multitasking, problem-solving, and had little appreciation for the risks that her being HIV positive posed to Aaliyah.  Numerous examples were relayed to the trial court about Abigail’s shortcomings.  The condition which was placed on her of which she complains was essential for the safety and well-being of Aaliyah.  Here, the trial court fashioned a condition to protect Aaliyah, which Abigail was unable to meet.  This was a proper state interest.  Consequently, the statute was not unconstitutionally applied to Abigail.

¶20      Moreover, Abigail’s circumstances are quite different from those found in Kenosha County v. Jodie W., the case Abigail relies on.  There, the termination of parental rights order was overturned because it was based solely on Jodie W.’s incarceration without any consideration of other factors.  Id., 293 Wis. 2d 530, ¶52.  When the condition was placed on Jodie W. that she maintain a suitable residence, the trial court knew she could never meet it because she was incarcerated.  Id., ¶¶7-10, 14.  In contrast, when the condition was placed on Abigail to “show that you can care for and supervise your child,” it was unknown whether, with the aid of services, Abigail could meet the condition.  As the facts adduced at trial clearly demonstrated, her cognitive limitations prevented her from doing so.

Best Interests Analysis

¶22      Here, the trial court noted that Aaliyah will be adopted into the only home she has ever known. She is approximately two-and-one-half years old and in good health.  The trial court found that her primary attachment is to her foster mother and she also has “very significant attachments to others in that home.”  The trial court believed that severing those relationships would be harmful to Aaliyah.

¶23      Abigail argues that the trial court should only have considered the substantial relationship that Aaliyah had with Abigail and should not have engaged in a “balancing analysis” with her relationships with her foster family.  This court disagrees.  It would have been wrong for the trial court to not consider the bond that Aaliyah has with the family that has cared for her for her entire life.  While it is true that Aaliyah had a relationship with Abigail, it was not of the same quality as the relationship she has with her foster family.  The trial court properly exercised its discretion in finding it was in Aaliyah’s best interest to terminate Abigail’s parental rights.  Accordingly, this court affirms.

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