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TPR “bonding” evidence not prejudicial; court didn’t have to consider relationship with great-grandmother

Portage County DHHS v. D.B., 2016AP1233 & 1234, 11/17/16, District 4 (1-judge decision; ineligible for publication); case activity

D.B. raises challenges to both the disposition and grounds phases of the hearing that resulted in the termination of her rights to her two children. The court of appeals rejects both.

D.B.’s first complaint is that the jury should not have heard, during the grounds phase, that she did not have a healthy bond with her children. (¶8). She presents this essential argument within three different legal frameworks; the court elects to address it as an ineffective assistance of counsel claim. (¶¶9, 23). It assumes without deciding that the evidence should not have come in and that counsel performed deficiently in not moving to exclude it. However, after reciting at some length D.B.’s failures to make progress toward meeting the conditions of safe return, the court concludes no reasonable jury would fail to find her unfit, rendering the “bonding” evidence nonprejudicial. (¶¶15-22).

As to the dispositional phase, D.B. argues that the circuit court failed to consider one of the six statutory factors: whether her children might be harmed by the severance of their “substantial relationships” with D.B., with the children’s adult sister, and with their great-grandmother. See Wis. Stat. § 48.426(3)(c). Regarding D.B. and the sister, the court of appeals concludes that the circuit court did an adequate job in “explain[ing] the basis for its disposition, on the record, by alluding specifically to [this factor].” See Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648 N.W.2d 402. (¶¶26-32). Regarding the grandmother, the court has this to say:

D.B. is correct that the circuit court gave no express consideration to the children’s relationship with their great-grandmother, but I see no error here. The only pertinent evidence was that the children had not seen their great-grandmother in “years”; that she sometimes sent them letters and pictures; and that the potential adoptive parents planned to allow contact between the children and their great-grandmother to continue. D.B. did not suggest that there was any dispute as to this evidence. Under the circumstances, I conclude that the court did not need to address this relationship on the record. It would be absurd to interpret the statute to require the court to address a child’s relationship with every extended family member, no matter how distant and when there is no dispute as to the nature of the relationship or the lack of consequences to the relationship upon termination of parental rights.

(¶33).

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