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Trial court gave adequate consideration to harm resulting from terminating of parental rights

State v. K.K., 2015AP986, 2015AP987, & 2015AP988, District 1, 8/11/15 (one-judge decision; ineligible for publication); case activity

K.K. argued that in deciding to terminate her parental rights, the circuit court failed adequately to consider the harm resulting from severing the legal relationship between her and her children given the substantial relationship she had with them. The court of appeals holds the court’s exercise of discretion was proper under Darryl T.-H. v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475.

¶16     Margaret H. held that a trial court must “evaluate all of the applicable factors enumerated under Wis. Stat. § 48.426(3), while focusing on the best interests of” the children. Id., ¶36. Margaret H. does not prohibit trial courts from considering an adoptive resource’s promise to maintain ongoing contact post-termination; rather, it cautions against putting complete reliance on a promise because “such promises are legally unenforceable once the termination and subsequent adoption are complete.” Id., ¶¶28-30. Margaret H. reversed and remanded the case because the trial court there:

failed to apply the best interests of the child standard and did not consider other pertinent factors besides Wis. Stat. § 48.426(3)(c). Although an evaluation of substantial relationships and the harm of a legal severance is indeed critical to the court’s determination, exclusive focus on any one factor is inconsistent with the plain language of Wis. Stat. § 48.426(3).

Id., ¶35.

¶17     …. The record here shows the trial court applied the best interests of the child standard, thoroughly addressed all of the relevant statutory factors, and concluded that most of the factors favored termination. Although the trial court’s analysis included consideration that legal severance would be mitigated by promises indicating likelihood of continuing contact between K.K. and her children, the trial court’s decision was not based entirely or solely on the promises of future contact. Rather, the trial court afforded this factor the partial weight specifically contemplated by our supreme court in Margaret H. See id., ¶30 (A trial court “may certainly choose to examine the probability that [the adoptive resource] will be faithful to [their] promise” of continuing contact post-termination, but the trial court “should not be bound to hinge its determination on that legally unenforceable promise.”).

¶18     K.K. also argues that the trial court’s reliance on the promise of future continued contact requires reversal because no one knows whether that will happen after termination. The future is always unknown, but this record indicates that the intent of all parties involved was to continue contact after termination; thus, the trial court’s reference to this information as part of its thorough analysis of the proper standard and factors does not require reversal.

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