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Harmless error and a “reasonable reading” of the record doomed dad’s appeal from TPR order

Dane County DHS v. T.S., 2019AP415, 5/9/19, District 4 (1-judge opinion, ineligible for publication); case activity

At the grounds phase of this TPR case, T.S. challenged the circuit court’s application of  §48.415(2), the CHIPS ground for terminating his parental rights. He also argued that at the disposition phase the circuit court ignored one of the “best interests of the child” factors required by §48.426(3) and substituted in an improper factor.  He lost on both counts.

Misapplication of §48.415(2). In 2018, the legislature modified §48.415(2). The parties to this case apparently disagreed over whether the 2015-16 version or the 2017-2018 version of the statute applied.  However, the County argued that the result would have been the same under either standard, so the error was harmless. T.S. failed to respond to this argument so the court deemed him to have conceded the point under United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (failure to refute argument in response brief may be taken as a concession). (Opinion ¶12).

Misapplication of §48.426(3).  The court of appeals pointed out that the circuit court has considerable discretion in how it weighs the §48.426(3) factors. See Darryl T.-H. v. Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475. It also noted that T.S.’s sole evidence to support this argument was one reference to the alleged improper factor, which he took that reference out of context.  Bottom line: The circuit court did not err. (Opinion ¶¶15-18).


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