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Mother’s sufficiency of the evidence challenge rejected because circuit court entered a TPR dispo order “a reasonable judge could reach”

State v. E.S., 2024AP395 & 396, 5/21/24, District I (one-judge decision; ineligible for publication); case activity

E.S. (“Emily”) challenges the sufficiency of the evidence supporting the circuit court’s finding that her children did not have a substantial relationship with her and that they were too young to express their wishes. The court of appeals affirms after reviewing the record and concluding that the circuit court properly exercised its discretion by considering the statutorily required disposition factors and reaching a decision that a reasonable judge could reach Op., ¶26.

While Emily seemingly challenged the sufficiency of the evidence, the court’s decision on appeal does not explain what the evidentiary burden is or upon which party any burden rests. Before a few months ago, the lack of any such discussion would not have seemed out of the ordinary. But, in State v. H.C., the court issued an unpublished, but citable, opinion holding, for the first time, that due process requires a “preponderance of the evidence” standard to be read into § 48.426. The court further held that the burden does not fall solely on the state. Rather, the burden falls on any party asserting a desired outcome:

In reaching our conclusion, we note that this burden is not solely placed on the State. Rather, to account for the ability of all parties to present evidence and arguments at the disposition, we consider it a common burden of proof wherein each party bears the burden to show by a preponderance of the evidence that its desired outcome—be it termination or preservation of parental rights—is in the best interest of the child.

State v. H.C., ¶35. Because the briefing is confidential in this TPR case, it is unclear whether Emily relied upon State v. H.C., which was issued prior to the completion of briefing in this case. Whatever the reason, it is unclear how an appellant would succeed on a “sufficiency of the evidence” claim at disposition without an applicable burden of proof against which to assess the evidence.

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