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TPR — disposition; erroneous exercise of discretion

Pierce County v. Troy H., 2012AP2525 and 2012AP2526, District 3, 2/19/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court termination decision was the result of an erroneous exercise of discretion because the court failed to consider the statutory factors:

¶8        Troy asserts the circuit court erroneously exercised its discretion because the record shows that the court did not consider any of the Wis. Stat. § 48.426(3) factors when determining it was in the children’s best interests to terminate his parental rights. The County, relying on Julie A. B., 255 Wis. 2d 170, ¶30, responds that the court sufficiently “alluded” to the § 48.426(3) factors because the County presented evidence that would support termination based on the factors. See Julie A. B., 255 Wis. 2d 170, ¶30 (“The court should explain the basis for its disposition, on the record, by alluding specifically to the factors in … § 48.426(3) and any other factors that it relies upon in reaching its decision.”).

¶9        We reject the County’s argument. That the County presented evidence that could support the court’s determination does not mean that the court, when explaining its determination, “allud[ed] specifically to the factors in … Wis. Stat. § 48.426(3).” See Julie A. B., 225 Wis. 2d 170, ¶30. Further, in Margaret H., our supreme court stated that “the record should reflect adequate consideration of and weight to each factor” listed in § 48.426(3). (Emphasis added.) Here, nothing reflects that the court considered the § 48.426(3) factors when determining it was in the children’s best interests to terminate Troy’s parental rights.

In addition, the evidence presented in support of termination was “not uncontroverted,” though the circuit court did not explain how it considered the conflicting evidence in making its determination. (¶10). Accordingly, the court of appeals concludes the circuit court erroneously exercised its discretion and therefore reverses and remands for a new dispositional hearing.

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