State v. B.L., 2023AP8, 4/11/23, District 1 (1-judge opinion, ineligible for publication); case activity

“Barry” appealed an order terminating his parental rights to his 4 1/2-year-old daughter, Alice. He argued that the circuit court erred in admitting his criminal history during the grounds phase and erred in finding that it was in Alice’s best interest to terminate his rights. He lost on both issues.

Less than a year after Alice’s birth, Child Protective Services took custody of her because her mother had neglected her. At the time, Barry was in prison, and Alice was placed in a foster home.  The State petitioned to terminate Barry’s rights because he failed to assume parental responsibility by not meeting conditions for the return of Alice, which included resolving his criminal cases, providing safe care for her, or even making himself available to care for or provide for her.

Before the fact-finding hearing during the grounds phase, the State moved in limine for permission to introduce evidence of Barry’s criminal history. In one case he had violated the sex offender registry. In another, he was charged with 9 counts, including battery with disorderly conduct all as a repeater with the domestic abuse assessment. All of the abuse involved Barry hitting, punching, kicking, and injuring Alice’s mother even while she was pregnant. In another case, he was charged with felony intimidation for trying to persuade Alice’s mother not to go to court.

The court of appeals held that the circuit court appropriately exercised its discretion in admitting this evidence. Barry pled guilty to most of the counts in these cases. The State had his criminal court records certified and moved into evidence. The evidence was relevant to his failure to assume parental responsibility because it put Barry at risk of being removed from Alice’s life. The domestic abuse allegations were relevant to whether Alice would be safe in Barry’s case. And the factual allegations against him were not hearsay; they were admissions by a party opponent under §908.01(4)(b)2. Opinion ¶¶19-20.

Also, to minimize the effect of criminal behavior that Barry was not convicted of, the circuit court instructed the jury not to consider that information in any way when reaching a verdict. Opinion ¶23. (citing State v. Jennaro, 76 Wis. 2d 499, 508, 251 N.W.2d 800 (1977) (stating that limiting instructions “are presumed to cure the prejudicial effect of erroneously admitted evidence”).

Regarding the decision to terminate his parental rights, Barry conceded that the circuit court considered all six of the “best interest of the child” factors during the disposition phase.  He argued that the circuit court should have weighed the factors differently. However, the court of appeals held that the weight and the credibility of the evidence are solely for the circuit court to determine. Opinion, ¶28 (citing Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶6, 351 Wis. 2d 439, 839 N.W.2d 893).