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Court of Appeals upholds TPR

Rock County DHS v. L.H., 2018AP1308, 10/11/18, District 4 (one-judge decision; ineligible for publication); case activity

L.H. challenges the circuit court’s finding that the county department established continuing-CHIPS grounds for termination of her parental rights to her daughter. She says the county can’t have met its burden to show a “substantial likelihood” she wouldn’t meet the conditions of return within nine months, Wis. Stat. § 48.415(2)(a)3. (2015-16) (recently amended), because the court said “I don’t know” whether she’d meet the conditions.

The court of appeals disagrees.

In the course of its ruling, the circuit court stated that “I don’t know” whether L.H. will meet all of the conditions within the next nine months. L.H. argues that this statement is a “finding of ultimate fact” that should have precluded the court from determining that the Department proved that there was a substantial likelihood that L.H. would not meet the safe return conditions within nine months of trial. However, reading this statement in context establishes that the court was  not finding any fact, but was elaborating on its earlier discussion as to whether two months of being drug-free indicated that rehabilitation would continue in the long term, considering the other facts in evidence. In the course of that discussion, the court weighed L.H.’s recent progress against the rest of the record before it and concluded that L.H.’s progress in the past two months did not outweigh her “zero or even negative” progress in the two years since the return conditions were first imposed, or the fact that she had met at most only one of the return conditions at the time of trial.

Thus, the court did not find, as L.H. contends, that it did not know whether she would meet the return conditions; rather, it was considering whether evidence of L.H.’s recent drug-free status was sufficient evidence that she would meet the return conditions in light of other evidence in the record. The court weighed the uncertainty over L.H. remaining drug-free against the other evidence presented and concluded that L.H. was substantially unlikely to meet the return conditions within the allotted time.


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