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TPR – Failure to Assume Parental Responibility; GAL Appointment for Parent; Parent’s GAL: Dispositional Recommendation – Harmless Error

Waukesha County DH&HS v. Jennifer L. H., 2010AP2990, District 2, 7/13/11

court of appeals decision (1-judge, not for publication); for Jennifer L.H.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Evidence held sufficient to prove Jennifer’s failure to assume parental responsibility as TPR ground, notwithstanding that she lived with the child and helped raise him from birth until he was removed from her home: “although Jennifer did live with Kurt for most of his life, there was evidence that their relationship was more that of siblings than that of parent to child, from which a jury could conclude that Jennifer failed to establish a substantial parental relationship even while living with Kurt.  Further, there was ample evidence that Kurt was exposed to a very dangerous environment while he was living with Jennifer,” ¶8. Tammy W-G v. Jacob T., 2011 WI 30, applied.

The trial court’s appointment of a guardian ad litem for Jennifer, cognitively disabled but not deemed incompetent, was within the broad discretionary authority of § 48.235(1)(a): “Whether or not Jennifer was technically incompetent, her cognitive disability was a reasonable basis for the trial court to appoint a GAL under § 48.235(1)(a), and so we hold that the trial court did not erroneously exercise its discretion,” ¶10.

The recommendation of Jennifer’s GAL that termination would be in her best interest, arguably made in violation of § 48.235(5m)(b) (GAL may not participate as party or any activity performed by adversary counsel) was at most harmless error. “The fact that the trial court wanted to hear from the GAL does not persuade us that it actually relied on the recommendation in making its decision—to the extent that the recommendation was error, we find that it was harmless,” ¶12.

Trial court error in articulating the reasons for terminating parental rights (Jennifer’s “dismal” visitation record, which confused her missed appointments with a parenting program with her visits with the child) was harmless: “The misunderstanding by the trial court was only one of several considerations that went into one of the six factors the court was considering.  It does not undermine our confidence in the proceeding’s result,” ¶15.

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