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Defense TPR win – trial court answered the wrong question in deciding potential adoptive resource shouldn’t be disclosed

State v. M.S.H., 2022AP369, 6/1/2022, District 1 (one-judge decision; ineligible for publication); case activity

The circuit court found M.S.H. to be an unfit parent on summary judgment. Turning to the dispositional phase, the court granted the state’s request to conceal from M.S.H. the identity of the person who the state considered likely to adopt her child.

It’s permitted, under Wis. Stat. § 48.355(2)(b)2., to conceal from a parent the identity of a foster parent, but only if the court finds disclosure “would result in imminent danger to the child or the foster parent.” Here, the state told the circuit court that M.S.H. had caused “disruptions” to prior placements, and the court allowed concealment on the basis of this “disruptive behavior.” That doesn’t cut it:

As M.S.H. observes, the circuit court did not make any findings on the record regarding whether disclosure “would result in imminent danger to the child or the foster parent” as required by WIS. STAT. § 48.355(2)(b)2. Moreover, we note that neither the State in its request nor the circuit court in its decision indicated on the record what the “disruptive behavior” entailed.

(¶11). The court of appeals accordingly reverses the TPR and remands for a hearing on whether the proposed adoptive resource’s identity should be disclosed, and potentially for a new dispositional hearing where M.S.H. can question or introduce evidence about the proposed adoptive resource. (¶12). Because it reversed on this ground, the court of appeals doesn’t address other issues, including whether M.S.H. got “due notice” of the request for concealment, as the statute also mandates.

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