Jackson County DHS v. M.M.B., 2021AP98 & 2021AP99, District 4, 4/1/21 (one-judge decision; ineligible for publication); case activity

M.M.B. stipulated that there were grounds for terminating her parental rights to her two children, but argued at the disposition phase that termination wasn’t in the best interest of the children. At that hearing, the County presented the testimony of a psychologist who had assessed M.M.B.’s “psychosocial functioning, including issues related to parenting and substance abuse.” M.M.B. objected, arguing the psychologist’s evaluation was not contemporaneous to the dispositional hearing, but had been conducted two years earlier, and thus wasn’t relevant to the issue of the children’s best interests. (¶¶3-6). The circuit court didn’t err in admitting this testimony.

¶20     I agree with the County that Dr. Dal Cerro’s testimony was relevant to Wis. Stat. § 48.426(3)(f), which directs the court to consider whether a child would “be able to enter into a more stable and permanent family relationship as a result of the termination.” Dr. Dal Cerro’s testimony that M.M.B.’s substance abuse and mental health problems, to the extent she continues to suffer from those problems, would impact M.M.B.’s ability to respond to problems concerning the children goes directly to the question of whether terminating M.M.B.’s parental rights would place the children in a more stable family relationship, which is a “fact that is of consequence to the determination” of the children’s best interests. See Wis. Stat. § 904.01.

¶21     M.M.B. argues that Dr. Dal Cerro’s testimony cannot be relevant because the evaluation conducted by Dr. Dal Cerro was conducted two years before the dispositional hearing and was therefore “temporally irrelevant.” While that observation goes to the weight the circuit court might give to the opinions, M.M.B. fails to identify any reason, under the facts of this case, that the passage of time rendered Dr. Dal Cerro’s testimony based mostly on an evaluation performed in 2018 no longer relevant. …. Moreover, M.M.B.’s argument ignores the fact that Dr. Dal Cerro testified that, prior to testifying, he had reviewed M.M.B.’s “recent reports … [and] updates.”

M.M.B. also argues that Dal Cerro’s testimony was essentially an impermissible revisiting of the issue of unfitness that is supposed to be addressed at the grounds phase, not the dispositional phase, and thus caused the circuit court to apply the wrong standard at the dispositional hearing. Besides the fact there’s no authority for the proposition that facts relevant to grounds for termination cannot be considered at the dispositional hearing, the record shows the circuit court applied the standard governing disposition. (¶¶24-33).

Also, a warning to appellants’ lawyers: Don’t fail to file a reply brief. Doing that could by itself lead the court of appeals to accept the respondent’s arguments “in total” and affirm on that basis. (¶33 n.4).