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Court needn’t reference statute when ruling on “best interest of the child” factors

State v. A.H., 2022AP1454, 12/6/22, District 1, (1-judge opinion; ineligible for publication); case activity

The sole issue in this TPR appeal is whether the circuit court failed to consider the “best interests” of D.H.’s daughter. D.H. noted that the circuit court’s oral decision “wholly omits consideration of and reference to the best interest factor.” Opinion, ¶13. That argument failed because the circuit court is not required to “utter any magic words” when performing its “best interests” analysis. Opinion, ¶16 (citing State v. Robert K., 2005 WI 152, ¶33, 286 Wis. 2d 143, 706 N.W.2d 257).

The court of appeals reviewed the record for evidence that the circuit court in fact considered the 6 “best interests of the child” factors in § 48.426(3) even though it did not explicitly reference the statute. It held:

¶18 . . . The record reflects that the circuit court carefully considered each of the statutory factors and the court’s comments repeatedly expressed concern for A.H. and her future. We are satisfied that the circuit court properly considered the best interests of A.H. and the best interests standard when it determined that the TPR of her parents’ rights was warranted.

The court of appeals quoted parts of the circuit court’s reasoning demonstrating that it considered each of the “best interests” factors. However, it’s worth noting that the circuit court stepped out of bounds in its analysis of the “child’s wishes” factor. D.H.’s daughter is only 4. She did not testify. Nevertheless, according to the circuit court, if the daughter “could process all of this she would tell [the court] that she wants to stay where she is safe and well cared for.” Opinion, ¶8. (Emphasis supplied). Since when does a judge get to divine what a non-testifying witness would say and rely on that to terminate a person’s parental rights? The court of appeals just let this slide.

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