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SCOW will take another look at TPR dispo “burden” or lack thereof

State v. B.W., 2022AP1329, review of an unpublished court of appeals decision granted 12/11/23; case activity (briefs not available)

We don’t know the precise issue or issues presented, but the court of appeals’ decision suggests the state supreme court may be looking to un-fracture the fractured decision it rendered last term in State v. A.G. There, the circuit court had told a parent pleading to grounds in his TPR trial’s first phase that the state would have the burden in the second phase: that is, the state would have to show, by clear and convincing evidence, that termination was in the child’s best interest. Of the six justices who decided the case, four agreed there is no “burden”; rather the best-interest inquiry is the “polestar” (your guess is as good as ours on what sort of legal standard that encompasses). But these four could not agree on why the judge’s communication of this concededly incorrect standard didn’t mandate reversal; see our post for more on this.

In this case, the court of appeals didn’t wade into the legal questions, instead holding the record doesn’t demonstrate B.W. was truly misinformed about any burden. So we’ll have to see if SCOW can stitch together enough agreement on the facts to make some law this time around.

B.W. also challenged the substance of the circuit court’s reasoning as to disposition; specifically its suggestion that B.W. might still be able to “co-parent” after termination of his legal rights as a parent; SCOW may have something to say about this issue too.

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