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COA rejects several challenges to private TPR

D.T.S. v. B.E.C., 2023AP1081, 10/5/23, District 4 (one-judge decision; ineligible for publication); case activity

B.E.C. is A.R.G.’s birth mother. D.T.S. is A.R.G.’s father. D.T.S. had sole physical custody after her mother left A.R.G. in his care when A.R.G. was two. Later, D.T.S. remarried and moved for termination of B.E.C.’s rights to A.R.G., alleging, as relevant here, abandonment. His new wife also petitioned to adopt the girl. The jury found B.E.C. unfit and the circuit court terminated her rights.

B.E.C. raises four challenges to the termination. First, she argues the circuit court erred in granting a temporary injunction prohibiting her from contacting her daughter while the TPR proceeding was ongoing.

Such an injunction can be entered in a pending TPR if the circuit court finds, in its discretion, that it is in the child’s best interest. Wis. Stat. § 48.42(1m)(c). B.E.C. contends the circuit court lacked a factual basis to find that it was, as there was no factfinding proceeding before the order. But, says the court of appeals, D.T.S. did file an affidavit, and B.E.C.’s counsel agreed to proceed at a hearing that was “kind of an offer of proof” by both sides.  (¶¶31-32). The court of appeals finds adequate support for the lower court’s determination that a reestablishment of contact with possible termination looming could harm the child (¶33), and also concludes that B.E.C. didn’t establish that any error as to the injunction would require reversal of the TPR. (¶¶35-37).

B.E.C. next claims the trial court erred in excluding evidence she says would have supported her defense in the first phase. The petition alleged abandonment of A.R.G., and B.E.C. responded that she had good cause for her lack of contact with the child. See WIS. STAT. § 48.415(1)(a)3. As an affirmative defense to abandonment, B.E.C. could try to show that she had “good cause” for failing to visit or communicate with A.R.G. during the abandonment period. See § 48.415(1)(c). To show good cause, she wished to put on testimony of family members; they would have said D.T.S. had rebuffed their own attempts to have contact with A.R.G. The court of appeals holds the circuit court did not err in excluding this testimony on relevance grounds, most plainly because the family member’s asserted attempts at contact occurred after the petition was filed, and thus after the period of abandonment B.E.C. was trying to justify. (¶¶49-51).

B.E.C.’s third claim is that the GAL improperly negatively contrasted B.E.C.’s efforts to reunify with her daughter to those of parents in other TPRs she had seen: specifically, parents whose children had been the subject of CHIPS orders. The court of appeals agrees that the argument was improper, as it concerned facts not in evidence, but concludes that B.E.C.’s counsel effectively responded (noting that CHIPS parents receive services that B.E.C. did not) and that the jury was properly instructed that counsel’s arguments were not evidence. (¶¶60-62).

B.E.C. finally challenges the circuit court’s application of the six statutory best-interest factors at disposition. This challenge goes about as well as such challenges tend to go. (¶¶64-80).

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