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Grounds phase TPR trial not tainted by “best interests” or other inadmissible evidence

A.C.-E. v. I.M., 2019AP573, 4/15/20, District 4 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects I.M.’s request for a new TPR grounds trial.

A.C.-E. sought termination I.M.’s parental rights to their child, E.M.C., asserting as grounds that I.M. had abandoned E.M.C. and failed to establish parental responsibility. (¶¶2-10). I.M. makes two primary arguments as to why the trial on these grounds went off the rails.

First, I.M. argues the circuit court erred in denying his motion in limine to exclude A.C.-E. from introducing evidence about, or making reference to, the child’s best interests, which is relevant only at disposition. The circuit court denied the motion, saying the standard jury instruction (Wis. JI—Children 301) tells the jury not to consider the child’s best interest, so the evidence needn’t be excluded. Under this ruling, I.M. complains, A.C.-E. introduced multiple photographs showing E.M.C. with A.C.-E. and members of her family, including A.C.-E.’s husband and their child, and elicited testimony describing the photos. A.C.-E. also testified that E.M.C. thinks of A.C.-E.’s husband as her father. Further, A.C.-E.’s lawyer said during opening argument that “we’re here about [E.M.C.], that’s what this case is really about” and during closing argument referred to A.C.-E.’s husband, saying “That’s the father right there. That’s the person that’s been the father for [E.M.C.].” (¶19).

The court of appeals concludes this evidence wasn’t improper under the cases precluding invocation of the child’s best interests at the grounds phase:

¶22     I.M. first relies on Steven V. [v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856.] First, Steven V. does not address the type of evidence and comments at issue here. Relevant to this case, Steven V. holds only that, although the “consistent legislative objective throughout the Children’s Code” is “‘the best interests of the child’” in TPR cases, the best interests of the child do not “‘prevail’” until the dispositional phase, “at which the child’s best interests are paramount.” Steven V., 271 Wis. 2d 1, ¶26. This language does not assist I.M. because it was clear in this case from the jury instructions, the special verdict form, and counsels’ arguments that the jury’s duty was to determine whether I.M. had abandoned E.M.C. or failed to assume parental responsibility for her, and that the jury should not consider the best interests of the child.

¶23     Notably, consistent with Wis. JI—Children 301, the circuit court instructed the jury that “[c]onsideration of the best interest of the child is a matter for the Court in proceedings which will be conducted in the future, it is not a consideration for the jury.” The court further instructed the jury regarding the requirements for finding abandonment and failure to assume parental responsibility. Jurors are presumed to follow jury instructions. …. Further, not once did either A.C.-E. or the guardian ad litem refer to the “best interests” of the child. Instead, they repeatedly focused on the allegations of abandonment and failure to assume parental responsibility. In addition, the special verdict form that was required to be completed by the jury and the arguments by the parties made it clear that the issues for the jury were to whether I.M. abandoned E.M.C. or failed to assume parental responsibility.

The court distinguishes the other cases I.M. cites. Waukesha County DSS v. C.E.W., 124 Wis. 2d 47, 368 N.W.2d 47 (1985), and D.B. v. Waukesha County HSD, 153 Wis. 2d 761, 451 N.W.2d 799 (Ct. App. 1989), dealt not with the admission of evidence, but with what a GAL may do at the grounds trial and the propriety of  referring to the GAL as the attorney representing the child’s best interests. Door County DHFS v. Scott S., 230 Wis. 2d 460, 602 N.W.2d 167 (Ct. App. 1999), involved argument by the GAL referring to the child’s best interests, which didn’t happen here (and, by the by, didn’t get Scott S. a new trial). (¶¶24-26). And in any event, any error in admitting the evidence was harmless. (¶27).

I.M. second primary argument is that the trial court improperly admitted evidence about his sexual and domestic misconduct with A.C.-E. and another woman. (¶¶28-30). The court of appeals holds this evidence was relevant to issues at the grounds trial and not unduly prejudicial—and, of course, even if it was erroneously admitted, it was all harmless. (¶¶33-39).

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