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Excluding evidence of return of older child harmless in TPR

Jefferson County Department of Human Services v. J.V., 2015AP2622, 2623, & 2624, 4/14/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

J.V. appeals the termination of her parental rights to her three younger children, arguing the circuit court erred in excluding evidence that she had succeeded in having her eldest child returned to her.

All four children had been taken from the home pursuant to CHIPS proceedings. (¶¶2-4). The county eventually filed for termination of parental rights as to the younger three on the ground of continuing CHIPS; the mother then moved for return of all four. (¶¶3-4). The court found the mother had met the conditions of return for the eldest, taking particular note of that child’s “age, self-sufficiency, and above average intelligence.” (¶4).

One of the elements of the continuing CHIPS unfitness ground is, of course, that the parent is unlikely to meet the conditions for safe return for the child in the 9 months following the hearing. Wis. Stat. § 48.415(2)(a)3. J.V. sought to introduce testimony about the return of the eldest child, on the theory that her success in meeting the conditions for his return was relevant to the likelihood that she would meet them for her other children. (¶9). The trial court disagreed and excluded the evidence, and J.V.’s rights were ultimately terminated. (¶¶5-6).

The court of appeals declines to decide whether the evidence should have been admitted. Instead, it recites what it what it views as the “overwhelming evidence” that J.V. would not meet various conditions of return in the future and declares any error harmless. (¶¶12-22).

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