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Defense win! COA orders new TPR trial due to erroneous exclusion of evidence

Brown County Human Services v. T.F., 2020AP793, 9/22/20, District 3 (1-judge opinion, illegible for publication); case activity

To establish grounds for terminating T.F.’s parental rights, the Department sought to prove that she had abandoned her daughter, Allie, for period of 6 months or longer. It filed a successful motion in limine seeking to exclude evidence of T.F.’s communications and visits with her daughter occurring after it filed its TPR petition. The court of appeals held that the circuit court erred in excluding this evidence. It reversed and remanded the case for a new jury trial on grounds for the TPR.

Section 48.415(1)(c) allows a parent to prove that she had good cause for abandoning her child. To that end, T.F. argued that her failure to to visit or communicate with Allie was actually the Department’s fault. It imposed unreasonable conditions on her contact with Allie before it filed the petition and only lifted those conditions afterward. Thus, she argued, evidence of her post-filing visits would have bolstered her argument to the jury that the Department had obstructed her ability to visit and communicate with Allie during the abandonment period.

Specifically, the Department conditioned visits on T.F. obtaining a counselor and scheduling and attending AODA classes. T.F. offered evidence that she had completed both AODA and a parenting classes, but the Department maintained that the AODA counselor lacked the appropriate certification. However, no program in the area where T.F. lived had the required certification. Furthermore, the Department placed Allie in a foster home over 100 miles away when it knew that T.F. had no driver’s license, and it did not help her with transportation. Once these unreasonable barriers were removed, T.F. resumed regular visits with Allie. Opinion, ¶¶20-21

The court of appeals first reversed the circuit court’s holding that, as a matter of law, a parent is always prohibited from introducing facts about events occurring after the filing a TPR petition.  Section 48.415(1) contains no such limitation. Opinion, ¶18. No case establishes this bright-line rule. On the contrary, Wis JI-Children 180 and State v. Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81 suggest that the relevance and admissibility of post-petition evidence in abandonment TPR cases must be determined on case-by-case basis applying Chapter 904’s rules of evidence. Opinion, ¶20.

Given nature of T.F.’s “good cause” defense, the court of appeals also reversed the circuit court’s holding that evidence of T.F.’s post-petition visits with Allie were not relevant to the issue of abandonment. T.F.’s defense would have been much more credible if this evidence has been admitted. Opinion, ¶¶22-24. In fact, there was a reasonable probability that the exclusion of this evidence contributed to the jury’s verdict against T.F. Opinion, ¶34.  TPR order reversed. Case remanded for a new trial on grounds.


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