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COA skirts A.G. claim in TPR appeal based on its reading of the record, applies usual deference to circuit court’s termination order

State v. B.W., 2022AP1329, District I, 9/12/23, PFR granted 12/11/23; (1-judge decision; ineligible for publication); case activity (briefs not available)

In yet another TPR appeal presenting an alleged miscommunication of the dispositional burden of proof, COA’s close read of the record evidence prevents B.W. from obtaining a requested hearing.

As we noted in our post on SCOW’s recent A.G. decision, that case did not actually generate much in the way of citable precedent to resolve a commonly-litigated TPR issue–a miscommunication of the legal burden of proof to be applied at a dispositional hearing. This case was previously placed on hold pending A.G.

However, when presented with yet another opportunity to examine these issues, COA issues a “not much to see here” opinion and affirms the circuit court’s order denying B.W.’s postdisposition motion without a hearing. It does so in a decision wholly declining to get into the legal weeds and instead reliant on a reading of the record evidence. Thus, while B.W. claims that “the circuit court failed to ensure that he understood the correct standard the court would rely on at the dispositional hearing,” COA disagrees with that interpretation of the court’s remarks. (¶10).

While COA agrees that the court did erroneously inform B.W. at an initial hearing that the State would have the burden of proving termination was in the best interest of the child, the court did not reiterate that specific comment during a later plea colloquy. (¶16). B.W. urges a different reading, pointing out that he was told he would have “all of those same trial rights” applicable to the grounds phase at disposition. (¶18). He claims this was a reference to the State having a burden of proof. (Id.). COA nimbly dodges this argument, however, by pointing out that the circuit court never described the State’s burden at the grounds phase as a “right.” (¶19). Thus, the court’s later reference to “rights” was not inclusive of that concept. (Id.). And, while B.W. points to COA’s earlier decision in the first A.G. appeal (also authored by Judge Donald, the judge assigned to this case), COA finds the facts of that case to be distinguishable. (¶20).

That leaves B.W.’s challenge to the court’s discretionary order terminating his parental rights. (¶22). Here, B.W. argues that the circuit court failed to appropriately consider whether severing the parent-child relationship would be harmful before terminating B.W.’s parental rights. (¶24). Despite some superficially concerning statements–including the court’s comments about a parent whose rights it just terminated somehow continuing to “coparent” with the adoptive resource–COA applies the usual deference and affirms. As to the court’s alleged reliance on an unenforceable promise of the adoptive resource, COA asserts that B.W. has failed to “identify any language in the record indicating that the circuit court incorrectly believed that [the adoptive resource’s] promise was legally enforceable.” (¶27). And, with respect to that bizarre reference to coparenting, COA is confident that the circuit court did not mean it in the “legal sense.” (¶28).

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