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Defense win! TPR reversed due to failure to address all “best interest” factors

State v. A.P., 2022AP95-97, 4/26/22, District 1 (1-judge opinion, ineligble for publication); case activity

Seems like we went years without a defense win in a TPR appeal. Then–just like that–we get 4 citable defense wins in 9 months. See also this win, this win, and this win! At the disposition stage in A.P.’s case, the circuit court was supposed to consider the 6 “best interests of the children” factors, but it only considered 5. The testimony on the missing factor was conflicting. Thus, the court of appeals reversed this TPR and remanded for further proceedings.

The circuit court issued a written decision, which the court of appeals quotes at length because it shows that the circuit court skipped the 4th “best interests” factor–namely the wishes of A.P.’s children. Opinion, ¶5.

Normally, the court of appeals would just search the record for evidence to support the circuit court’s decision.  Here it didn’t. It started by noting that while the circuit court is not required to afford greater weight to any particular factor, the “’record should reflect adequate consideration of and weight to each factor.’ State v. Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475.” Opinion, ¶7. (Emphasis supplied).

However, in this case, there was no consideration of the children’s wishes. The court of appeals held that when confronted with inadequate findings in family law and domestic cases, its “preference” is to remand the case to the circuit court. Opinion, ¶10 (citing Minguey v. Brookens, 100 Wis. 2d 681, 688, 303 N.W.2d 581 (1981)).

Thank you! Hope to see this “preference” invoked in more cases.

The court of appeals was also concerned about conflicting testimony regarding the children’s wishes. It explained:

¶14 Ultimately, our review of the record shows that there was conflicting testimony about many of the facts and reasonable inferences of those facts in this case including the children’s wishes. The circuit court exercises its discretion in TPR actions because determining the best interests of a child “depends on firsthand observation and experience with the persons involved.” Gerald O., 203 Wis. 2d at 152. Here, there were disputes in the testimony regarding the children’s relationship with A.P. The circuit court failed to address which testimony it found more credible or what it concluded the children’s wishes were. Although we search the record and consider reasonable inferences from the facts in the record, there must be facts in the record upon which we can base our review to discern the court’s reasonable exercise of discretion.

¶15 The six factors in WIS. STAT. §48.426(3) are mandatory considerations for the circuit court in TPR decisions. “While it is within the province of the circuit court to determine where the best interests of the child lie, the record should reflect adequate consideration of and weight to each factor.” Margaret H., 234 Wis. 2d 606, ¶35. The circuit court’s written decision is the only statement of its conclusions and fact-finding. It did not consider the fourth required factor, the wishes of the children. Therefore, we discern an erroneous exercise of discretion because the court failed to make adequate findings relating to its consideration of the relevant facts under the applicable standard of law.

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