COA rejects mother's claim that circuit court improperly weighed best interest factors at TPR dis...

State v. E.B., 2022AP1882, District 1, 01/18/2023 (one-judge decision, ineligible for publication), case activity

This case concerns only the disposition phase of E.B.'s TPR case. She argued that the circuit court erroneously exercised its discretion with regard to the best interest of the child factors set forth in Wis. Stat. § 48.426(3).  Specifically, E.B. argued that the circuit court did not give her own testimony enough weight and gave too much weight to the foster mother's testimony. However, E.B. does not argue that the circuit court failed to consider any specific factor or made clearly erroneous findings based on the evidence presented at disposition. Because circuit courts retain discretion to regarding "the weight assigned to each factor and the credibility assigned to each witness's testimony," the court affirms the TPR order. (Opinion, ¶15).

One specific argument the court rejects is E.B.'s claim that the court gave undue weight to the foster mother's testimony that the family intended to maintain contact with E.B., who argued that the foster mother's stated intent "has no legal authority or enforceability." (¶11). Regardless, the court cites State v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475, for the principle that a circuit court may afford due weight to an adoptive parent's stated intent to continue visitation with family members. (¶18). Here, the foster mother's "intent" was supported by testimony that she and her husband had adopted children in the past and maintained relationships with the biological parents of those children. The court refuses to "upset" the circuit court's reliance on this testimony in finding that the foster parents would "mitigate any harm" caused by severing the legal relationship between E.B. and her son. (¶19).