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COA affirms TPR jury verdict based on harmless error analysis

C.T.L. v. M.L.K., 2023AP402, District III, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)

The court of appeals confronts two alleged errors stemming from M.L.K.’s TPR jury trial and affirms based on harmless error.

This is an appeal of a comparatively rare privately-filed TPR action initiated by “Mary’s” paternal grandparents against Mary’s mother, Melissa. (¶2).  In response to a petition alleging both abandonment and failure to assume parental responsibility, the circuit court held a three-day jury trial. (¶3). The jury ultimately found that both grounds existed and the circuit court then terminated Melissa’s parental rights. (¶9).

On appeal, Melissa makes two arguments. First, she argues that the circuit court erroneously admitted testimony regarding the best interest of the child during the grounds phase when the grandparents were allowed to testify about whether termination would be “good for” the child. (¶¶10-11). Despite finding that the issue was not properly preserved via a timely objection during the trial, COA concludes that it should still address the issue on the merits “because the parties have briefed the issue and there are no factual issues to be resolved.” (¶17). It then assumes without deciding that the circuit court erred in admitting this evidence. (¶18). However, the error was harmless as there was “undisputed evidence” that Melissa had abandoned Mary. (¶21). (COA cabins its harmlessness analysis to only one of the grounds, as the jury only needed to find one ground in order for the matter to move to a dispositional hearing). Given the strength of the petitioner’s evidence, COA’s confidence in the verdict is not “undermined.” (Id.).

Second, Melissa argues that the circuit court erred by not taking judicial notice of the COVID-19 stay at home order, which she claims was a necessary component of her “good cause” defense to the abandonment allegations. (¶22). COA assumes without deciding that the court improperly failed to take judicial notice. (¶23). However, it concludes that the court nevertheless properly excluded that evidence as it was irrelevant under the facts of this case. (¶24). Moreover, Melissa discussed the stay at home order in her closing argument, which means the jury was aware of that “defense” when it issued its verdict. (¶25).

Having determined that each error is individually harmless, COA also rejects Melissa’s arguments of cumulative error. (¶27).

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