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COA affirms termination of a “great mom’s” parental rights

State v. T.E.-P., 2021AP1473, 11/9/21, District 1 (1-judge, ineligible for publication); case activity

There’s no online access to briefs in TPR appeals, so we can’t check the court of appeals’ characterization of T.E.-P.’s appeal.  Allegedly, she conceded that the circuit considered all 6 “best interest of the child” factors in §48.426(3) and asked the court of appeals to reweigh them. The court of appeals deferred to the circuit court’s weighing of the factors and evidence under State v. Margaret H., 2000 WI 42, ¶¶29, 35, 234 Wis. 2d 606, 610 N.W.2d 475.

When  T.E.-P gave birth to A.G., A.G. tested positive for opiates and exhibited withdrawal symptoms. The State petitioned for a TPR and T.E.-P pled “no contest” to continuing CHIPS and failure to assume parental responsibility.

At the disposition hearing, the circuit court found that (1) A.G. was likely to be adopted; (2) A.G. was 26 months old and in excellent health; (3) A.G. knew T.E.-P. but likely lacked a substantial relationship with her because for A.G.’s first year of life T.E.-P struggled with opioid addiction; (4) A.G. was too young to express her wishes regarding her relationship with her mom; (5) A.G. had lived apart from her mom for her entire life; and (6) A.G. had bonded with her foster parents and adoptive resource, who were providing her a loving home. Opinion, ¶¶14-20. These findings align with §48.426(3)’s “best interests of the child” factors.

What seems odd about this appeal is that the evidence also showed T.E.-P was “doing extremely well,” had a established a “solid base of sobriety,” and was a “great mom” to a child born after A.G. In addition, the facts showed that the age and health of A.G.’s foster/adoptive parents “was not ideal.” Opinion, ¶¶21-22. Because the circuit court considered these facts, the court of appeals deferred to its decision.

An appellate court is not required to defer to a circuit court’s exercise of discretion. The circuit court must (1) examine the relevant, (3) apply the correct law, and (3) use a demonstrated rational process to reach a conclusion that a reasonable judge could reach. Dane Cnty. v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198. If it violates any of these 3 requirements,  it erroneously exercises its discretion and should be reversed.  Given the court of appeals’ description of this case, the result seems rather unreasonable. Under the circuit court’s rationale, a mom who struggles with opioid or other addiction during and right after pregnancy but then stabilizes cannot keep her child.

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