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TPR – injunction terminating visitation during proceedings; withdrawal of admission to grounds

Racine County v. Kimberly M.K. and Jessie R.R., 2012AP1346, District 2, 2/21/13; court of appeals decision (1-judge, ineligible for publication); case activity

TPR – injunction terminating visitation during proceedings

An injunction prohibiting visitation is authorized in involuntary TPR proceedings if the prohibition is in the best interests of the child. Wis. Stat. § 48.42(1m)(c). Section 48.42 does not define “best interests,” but case law establishes that there must be a showing of a risk of harm to the child before terminating parent-child visitation. Dane Cnty. DHS v. Ponn P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344. Here, the court considered the “best interest” factors set forth in Wis. Stat. § 48.426 at the injunction hearing; it that was error, it was harmless:

¶13      …. The court’s discussion of Jessie’s lengthy struggle with his addiction to marijuana and his failure to maintain an appropriate residence where Makayla could visit makes clear that the risk of harm to Makayla was integral to the court’s analysis. The agency removed Makayla from her parents’ care in the first place due to the harmful situations to which Makayla was exposed. See Ponn P., 279 Wis. 2d 169, ¶¶30-31. The risk of harm to Makayla was clearly the premise of the court’s prohibition on visitation, and any error in considering the factors in § 48.426 was harmless.

Further, any error arising in the delay in holding a hearing on the initial ex parte injunction was waived because Jessie never objected to the delay; nor was the delay prejudicial, as it did not affect Jessie’s substantive interests because Jessie never proved that he could provide a safe home for Makayla to live in, or even visit, and failed to meet the conditions set by the court. (¶14).

TPR – withdrawal of admission to grounds

¶15      …[W]e reject Jessie’s request to withdraw his admission that grounds for termination existed. The record amply supports both the grounds for termination, as already described, and that Jessie’s waiver was knowing, voluntary, and intelligent. Jessie’s trial lawyer testified in the postdisposition hearing about his discussions with Jessie of the precise difference between the two phases of TPR proceedings and of the benefit of conceding the grounds and buying time to attempt to improve his situation enough to persuade the court to allow him to keep Makayla. We accept the circuit court’s finding that Jessie’s postdisposition testimony that he did not understand what he was doing when he waived the phase-one hearing lacked credibility. The fact that the strategy Jessie chose to follow failed does not provide grounds to withdraw his waiver of the phase-one trial.

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