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CoA rejects proposed guardianship and NTIJ challenge to TPR order

State v. A.P., 2021AP1146-47, 12/7/21, District 1 (1-judge opinion, ineligible for publication); case activity

A.P. appealed orders terminating his parental rights to his two children. The court of appeals rejected his claim that the circuit court erroneously exercised its discretion when it refused to make his mother the guardian of the children and his new trial in the interests of justice claim.

As the disposition stage of this case, A.P. wanted the circuit court to grant guardianship of his children to S.I. in lieu of terminating his parental rights. The court of appeals held that the circuit court examined the relevant facts and set forth a rational basis for its rejection of this option. Opinion, ¶11. 

Among other things, the circuit court and the court of appeals cited S.I.’s health issues, lack of car, criminal record, ignorance of A.P.’s domestic violence-related convictions, and the fact that S.I.’s own children had once been removed from her care. The courts also observed that while S.I. appeared to be caring and loving, she did not have a substantial relationship with the children. Nor S.I. appreciate the risks of letting the kids see their mother whom A.P. had battered. Opinion, ¶12 & ¶14.

While the court of appeals’ ruling on the guardianship issue may not raise any eyebrows, its decision denying a new trial in the interests of justice should. Its analysis boils down to “reversal in the interests of justice should only be granted in exceptional cases. This is not an exceptional case.” Opinion, ¶21.  That’s not the test.

The court of appeals should grant a new trial in the interests of justice, pursuant to §752.35, when the real controversy has not been tried or there has been a possible miscarriage of justice. For example, if the court or jury considered evidence it should not have, or did not hear evidence that it should have, and this error clouded the issues, then the real controversy was not tried. See State v. Hicks, 202 Wis. 2d 150, 160,  549 N.W.2d 435 (1996).

We don’t have access to the briefs so we do not know the basis for A.P.’s claim that the orders terminating his parental rights should be vacated in the interests of justice. The point is, the court of appeals doesn’t tell us either. Its opinion doesn’t cite or apply the governing case law. It just waves its magic wand to deny A.P.’s NTIJ claim without any meaningful analysis.

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