Brown County Human Services v. T. F.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP793 Cir. Ct. No. 2017TP38

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO A. P.,
A PERSON UNDER THE AGE OF 18:

BROWN COUNTY HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

T. F.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
THOMAS J. WALSH, Judge. Reversed and cause remanded with directions.
No. 2020AP793

¶1 SEIDL, J.1 T.F. appeals an order involuntarily terminating her
parental rights to her daughter, Allie.2 At a hearing prior to the jury trial at the
grounds phase, the circuit court granted the Brown County Human Services
Department’s (the Department) motion in limine prohibiting T.F. from presenting
evidence to the jury that she visited or communicated with Allie after the date the
Department filed the termination of parental rights (TPR) petition. T.F. argues the
court erroneously exercised its discretion by granting the Department’s motion and
that the court’s error was not harmless. We agree. Therefore, we reverse the order
terminating T.F.’s parental rights to Allie and remand for a new jury trial at the
grounds phase of these proceedings consistent with this opinion.3

BACKGROUND

¶2 T.F. gave birth to her daughter, Allie, on June 2, 2014. In July 2014,
Marinette County initiated Child in Need of Protection or Services (CHIPS)
proceedings and was granted temporary custody of Allie. In October 2014, the
Marinette County circuit court found Allie was in need of protection or services,
and it entered a CHIPS dispositional order that placed her in a foster home in

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
For ease of reading and consistency with our prior decision in this case, we use a
pseudonym when referring to T.F.’s daughter. See Brown Cty. Human Servs. v. B.P., 2019 WI
App 18, ¶1 n.2, 386 Wis. 2d 557, 927 N.W.2d 560. We rely upon the facts in B.P. for the
background here.
3
Cases appealed under WIS. STAT. RULE 809.107 “shall be given preference and shall be
taken in an order that ensures that a decision is issued within 30 days after the filing of the
appellant’s reply ….” See RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in
a delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in
this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680,
694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this
decision is issued.

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Marinette. In March 2015, court orders were entered changing venue of this
action to Brown County and Allie’s physical placement to a different foster home
in Brown County. A subsequent court order in June 2016 returned Allie’s
placement to her original foster parent, who had moved to Madison. Since Allie’s
original removal in July 2014, she has never returned to T.F.’s care.

¶3 On October 30, 2017, the Department filed a petition to permanently
and involuntarily terminate T.F.’s parental rights. The petition alleged that T.F.
had abandoned Allie for a period of six months or longer. See WIS. STAT.
§ 48.415(1)(a)3. T.F. contested the petition. In May 2018, the Department moved
for partial summary judgment, contending that grounds existed to terminate T.F.’s
parental rights. The circuit court held a hearing on the motion, and the court
granted the Department partial summary judgment on the issue of T.F.’s parental
unfitness. T.F. petitioned for leave to appeal from a nonfinal order pursuant to
WIS. STAT. RULE 809.50, and we granted her petition.

¶4 On March 1, 2019, we reversed the circuit court’s grant of partial
summary judgment in favor of the Department. On remand, the court scheduled
the matter for a grounds phase jury trial.

¶5 The parties filed motions in limine prior to trial, and the circuit court
addressed their motions at a final pretrial conference on August 8, 2019. As
relevant to T.F.’s appeal, the Department sought:

To prohibit [T.F.] from eliciting any testimony or
submitting any evidence that she has visited or
communicated with [Allie] after October 30, 2017, the date
that this Petition was filed. This testimony is not relevant
to the periods of abandonment alleged in the [P]etition and
will only confuse the jury as to the periods of time they are
to consider in determining whether [T.F.] has abandoned
this child.

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¶6 T.F. opposed the Department’s motion, arguing that motion would
violate her due process rights. Specifically, T.F.’s counsel contended:

This is going to go directly towards a good cause defense in
that it was the failure of the [D]epartment to do their job
while my client was incarcerated and during the period of
abandonment.

So what I would like to show is that once the [D]epartment
did follow through with their end of the bargain here in
doing their job, they were able to do visits between my
client and her child, and basically it’s part of our defense.

So without being able to provide evidence that the
[D]epartment started to provide transportation to my client
to Madison and those visits happened are a good cause
defense of the [D]epartment not doing their job is basically
being cut off by not being able to present this evidence.

¶7 The Department responded that it thought the evidence was “going
to be prejudicial to the [D]epartment’s case, because the argument is going to be,
well, she’s having visits now. I don’t want to see an argument where she’s having
visits now, … she didn’t have it back then, but she’s doing it now so everything
should be okay.” The Department further argued: “Visitation that began after we
filed for the period of abandonment, which is not part of the alleged time frame, I
don’t think is even relevant to this case. The actions that were taken by any of the
parties for that matter isn’t even relevant to this case.” The Department then
requested that if the circuit court was going to deny its motion, it would then “ask
the Court for the ability to get into any information regarding those visits, [T.F.]’s
failure to appear at those visits and what efforts the [D]epartment made to try to
accommodate her schedule as well,” which T.F.’s counsel agreed to as “a little bit
of a tit for tat, I guess.”

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¶8 The circuit court provisionally granted the Department’s motion.
The court explained:

I’m on the juvenile jury instruction committee, and I know
there’s been some case law that some of this—the date of
events post-filing, so what I’m going to do is, I’m going to
provisionally grant this motion, because I think it’s the
right decision, and you have to focus on the time of
abandonment and provide a defense for that period. But
I’m going to do a little more research on it, and I will
certainly notify you as soon as tomorrow if I find anything
else. But that is my inclination, that we’re going to confine
it to that.

….

I do know it is different, however, for the different types of
filings. If you have [a continuing CHIPS] case, post-filing
actions are very relevant. So I am not, by any stretch,
suggesting that post-filing actions are never relevant. I’m
just not convinced that it is in an abandonment case.

Allie’s guardian ad litem “agreed with the Court’s analysis” because it was his
“understanding … that this is limited to what was happening at the time of the
petition.” Additionally, he was “concerned about jury confusion if we go into
post-petition facts. That seems to be most relevant to me as we start to get into the
best interest of the child factors.” The next day, the court sent a letter to the
parties stating that it was “not going to change any of the rulings” it made at the
pretrial hearing.

¶9 Following a two-day trial, the jury found that the Department had
proven T.F. abandoned Allie pursuant to WIS. STAT. § 48.415(1)(a)3. In doing so,
the jury found T.F. did not have good cause for having failed to visit Allie during

5
No. 2020AP793

the abandonment period.4 The circuit court held a dispositional hearing on
November 21, 2019, at which the court entered an order involuntarily terminating
T.F.’s parental rights to Allie. T.F. now appeals, and additional facts are provided
below.

DISCUSSION

¶10 The Department alleged T.F. abandoned Allie under WIS. STAT.
§ 48.415(1)(a)3. In relevant part, that statute required the Department to
prove: “The child has been left by the parent with any person, the parent knows or
could discover the whereabouts of the child and the parent has failed to visit or
communicate with the child for a period of 6 months or longer.” However,
§ 48.415(1)(c) provides a parent with a good cause defense to the abandonment
ground as follows:

Abandonment is not established … if the parent proves all
of the following by a preponderance of the evidence:

1. That the parent had good cause for having failed to visit
with the child throughout the time period specified in
par. (a)2. or 3., whichever is applicable.

2. That the parent had good cause for having failed to
communicate with the child throughout the time period
specified in par. (a)2. or 3., whichever is applicable.

3. If the parent proves good cause under [§ 48.415(1)(c)2.],
including good cause based on evidence that the child’s age
or condition would have rendered any communication with
the child meaningless, that one of the following occurred:

4
Because the jury found T.F. did not have good cause for having failed to visit Allie, it
did not—and need not—answer the next question on the special verdict form regarding whether
T.F. had good cause for having failed to communicate with Allie during the abandonment period.
A good cause defense to abandonment requires a showing of good cause with respect to both
visitation and communication. See WIS. STAT. § 48.415(1)(c).

6
No. 2020AP793

a. The parent communicated about the child with the
person or persons who had physical custody of the child
during the time period specified in par. (a)2. or 3.,
whichever is applicable ….

b. The parent had good cause for having failed to
communicate about the child with the person or persons
who had physical custody of the child or the agency
responsible for the care of the child throughout the time
period specified in par. (a)2. or 3., whichever is applicable.

¶11 T.F. argues the circuit court erred by granting the Department’s
motion in limine prohibiting her from eliciting any testimony or submitting any
evidence that she visited or communicated with Allie after October 30, 2017. She
contends that because of that error, she was denied her constitutional due process
right to present evidence at the jury trial central to her good cause defense against
a TPR. See Brown Cty. v. Shannon R., 2005 WI 160, ¶53, 286 Wis. 2d 278, 706
N.W.2d 269. We review a circuit court’s decision to admit or exclude evidence
for an erroneous exercise of discretion.5 La Crosse Cty. DHS v. Tara P., 2002 WI
App 84, ¶6, 252 Wis. 2d 179, 643 N.W.2d 194. A court properly exercises its
discretion when it examines the relevant facts, applies a proper standard of law,
and, using a demonstrated rational process, reaches a conclusion that a reasonable
judge could reach. Dane Cty. DHS v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d
396, 828 N.W.2d 198.

5
Whether the exclusion of evidence denies a parent the right to present a defense is a
question of constitutional due process subject to de novo review. See State v. Prineas, 2012 WI
App 2, ¶15, 338 Wis. 2d 362, 809 N.W.2d 68; see also Brown Cty. v. Shannon R., 2005 WI 160,
¶¶53-56, 286 Wis. 2d 278, 706 N.W.2d 269 (recognizing a parent in TPR proceedings has a due
process right to present admissible evidence central to his or her defense). Because we decide
this case on different grounds, we need not, and do not, address this issue. See Patrick Fur
Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d
707 (court of appeals decides cases on the narrowest possible grounds).

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No. 2020AP793

¶12 Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” WIS. STAT. § 904.01. “A
witness’s credibility is always ‘consequential’ within the meaning of … § 904.01.”
State v. Marinez, 2011 WI 12, ¶34, 331 Wis. 2d 568, 797 N.W.2d 399 (quoting
Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 401.101,
at 98 (3d ed. 2008)). “All relevant evidence is admissible, except as otherwise
provided by the constitutions of the United States and the state of Wisconsin, by
statute, by these rules, or by other rules adopted by the supreme court. Evidence
which is not relevant is not admissible.” WIS. STAT. § 904.02.

¶13 At trial, the Department sought to prove that T.F. abandoned Allie
for a period of at least six months between September 1, 2016 and October 30,
2017—the date the Department petitioned for TPR. One of T.F.’s primary
defenses was that if the jury believed the Department proved abandonment, she
had good cause for not communicating with and visiting Allie. In particular, T.F.
contended that it was the Department that had “abandoned T.F. by failing to
reasonably facilitate visits and communication between T.F. and [Allie] until after
the [D]epartment moved to terminate T.F.’s parental rights.”

¶14 On appeal, T.F. argues that the evidence she was prohibited from
providing to the jury at trial was relevant under WIS. STAT. § 904.01. In T.F.’s
view, “evidence of post-filing contact between T.F. and [Allie], and the
circumstances and details concerning that contact would have explained and
demonstrated why T.F. had good cause for failing to have contact prior to the
[D]epartment’s filing.”

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No. 2020AP793

¶15 Specifically, T.F. contends that the Department imposed
unreasonable conditions upon her prepetition contact and failed to facilitate her
visits with Allie prepetition. In T.F.’s view, the fact that she was able to have
contact with Allie after the petition was filed when the Department lifted the
unreasonable restrictions and facilitated that contact could have demonstrated that
she had good cause for failing to visit Allie prepetition due to the Department
imposing unreasonable barriers that prevented her from doing so. T.F. had visits
with Allie after October 30, 2017. She asserts that these postfiling visits, “after
the [D]epartment provided transportation for [her] to Madison and after the
[D]epartment lifted the unreasonable conditions placed upon these visits, would
have had the tendency to make [her] good cause defense under WIS. STAT.
§ 48.415(1)(c)1. much more probable than without this evidence.”

¶16 T.F. argues the evidence she provided to the jury regarding why she
did not have visits with Allie before October 30, 2017, “would have been placed in
proper context to what happened when the [D]epartment did its job rather than
stood in the way of visits between T.F. and [Allie].” In other words, T.F. contends
that the postfiling evidence would have bolstered her credibility in arguing that it
was the Department that obstructed her ability to visit and communicate with Allie
during the abandonment period, and that without such obstruction, she would have
been visiting and communicating with Allie.

¶17 T.F. reasons the circuit court erroneously exercised its discretion
because it neither considered the relevant facts nor applied the correct legal
standard. She argues the court did not apply WIS. STAT. § 904.01 to determine
whether the postfiling evidence was relevant, but, rather, the court “focused
entirely on a purely legal conclusion that post-filing events or facts are never
relevant to a good cause defense to abandonment.” We agree with T.F. that the

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No. 2020AP793

court erroneously exercised its discretion by failing to properly assess the
postfiling evidence’s relevancy under § 904.01.

¶18 We first determine that the circuit court erred by concluding, as a
matter of law, that a parent is always prohibited from introducing facts regarding
events occurring after the petition’s filing date in all abandonment TPR cases. The
plain language of WIS. STAT. § 48.415(1) does not limit the evidence that a parent
may submit to that which existed prior to the filing of the TPR petition. There is
no statutory support for the proposition that evidence of activities occurring
outside of the alleged abandonment period is irrelevant.

¶19 Second, the circuit court erroneously exercised its discretion in
finding that T.F.’s postpetition visits were not relevant to the issues to be decided
by the jury. For the Department to prove abandonment, it was required to show,
by clear and convincing evidence, see WIS. STAT. § 48.31(1), that Allie was left by
T.F. with any person, that T.F. knew or could have discovered Allie’s
whereabouts, and that T.F. failed to visit or communicate with Allie for a period of
six months or longer. See WIS. STAT. § 48.415(1)(a)3. For T.F. to convince the
jury that she had good cause for “abandoning” Allie, she was required to prove, by
only a preponderance of the evidence, that she had good cause for having failed to
visit and communicate with Allie “throughout the time period specified in
[§ 48.415(1)(a)3.]”—i.e., the abandonment period. See § 48.415(1)(c)1., 2.

¶20 As part of her good cause defense to abandonment at trial, T.F.
argued that the Department “stood in the way of” her visiting Allie by placing, in
her view, unreasonable conditions for her to visit Allie during the abandonment
period. For example, the Department in October 2016 conditioned T.F.’s visits
with Allie on T.F. obtaining an individual counselor, and scheduling and attending

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No. 2020AP793

an alcohol or other drug abuse (AODA) assessment. T.F., however, introduced
evidence that she had recently completed AODA programming as well as a
parenting class. She also introduced evidence that although this programming did
not satisfy the Department’s AODA condition because the counselor was not
AODA certified, T.F. could not participate in a different AODA assessment
because, in part, there were no AODA services located in the area in which she
resided. T.F. further alleged the Department acted as a barrier by failing to help
her arrange transportation to Allie’s foster home—which was over 100 miles
away—when it knew T.F. had no driver’s license.6

¶21 In addition, T.F. maintained that her assigned social worker was
derelict in her duties to provide assistance to T.F. during the abandonment period.
Specifically, T.F. faulted her social worker for failing to reasonably facilitate visits
and communication with Allie. T.F. introduced evidence at trial that her social
worker failed to comply with Wisconsin’s “standards of practice for both ongoing
child protection workers and intake child protection workers.” For example,
T.F.’s social worker was required to have, at a minimum, monthly face-to-face
contact with T.F. beginning in March 2015 when the social worker was assigned
to T.F. after the venue of this matter changed to Brown County. The social worker
testified, however, to having contact with T.F. during only seven months between
March 2015 and October 2017. In all, T.F. asserts that her good cause defense
would have been more credible had she been able to provide evidence that,
although occurring after the abandonment period, she did have face-to-face visits

6
The Department does not appear to dispute that there were no AODA services located
in the area in which T.F. resided and that it shouldered some responsibility to help her facilitate
travel to Allie’s foster home.

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No. 2020AP793

with Allie once the alleged unreasonable conditions were lifted and the
Department provided the type of assistance that she was supposed to receive
during the abandonment period.

¶22 We agree with T.F. that her good cause defense would have been
more credible had she been able to present the postfiling evidence. Generally, a
person’s credibility is always relevant under WIS. STAT. § 904.01. See Marinez,
331 Wis. 2d 568, ¶34. Although the postfiling evidence occurred after the
abandonment period, it plainly relates to the Department’s alleged conduct during
the abandonment period and its impact on T.F.’s failure to visit or communicate
with Allie during that period. Thus, the postfiling evidence here has a tendency to
make a consequential fact during the abandonment period—e.g., whether T.F. had
good cause for failing to communicate with or visit Allie—more likely to have
occurred. See § 904.01.

¶23 The Department contends that the circuit court considered the
postfiling evidence and determined it was irrelevant when considering the standard
for relevancy under WIS. STAT. § 904.01 and what elements of proof were at issue
in this case. The Department argues that the abandonment ground’s plain
language referring to the “time period specified under par. (a)2. or 3.” makes it
clear that only evidence relevant to the proof needed to establish abandonment,
and the proof needed to support a good cause defense, are the facts and
circumstances specifically related to the events that took place during the period of
alleged abandonment. In other words, the Department contends that final element
under the abandonment statute required the Department to prove that T.F. had no
contact with Allie during the abandonment period, and T.F.’s good cause defense
that she had contact with Allie after that period does not address whether the
Department met its burden of proof on that element.

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No. 2020AP793

¶24 The problem with the Department’s argument is that the postfiling
evidence does, in fact, relate to T.F.’s and the Department’s conduct during the
abandonment period. As part of her good cause defense, T.F. alleged that the
Department was derelict in its duties to her during the abandonment period.
Although the postfiling evidence of the Department’s conduct in arranging for
visitation and communication between T.F. and Allie occurred after the
abandonment period, that evidence supports T.F.’s contention that the Department
“stood in the way” of her communicating with or visiting Allie during the
abandonment period because the Department failed to engage in that helpful
conduct prior to filing the petition. Put another way, the fact that the Department
helped T.F. after the abandonment period by removing alleged impediments to her
communication and visitation is relevant to an element of proof—her good cause
defense to abandonment—because it has a tendency to make more probable T.F.’s
claim that the Department hindered her ability to communicate with and visit Allie
during the abandonment period, and that without such hindrance, she would have
been visiting and communicating with Allie during that time. See WIS. STAT.
§ 904.01.

¶25 The Department also argues that the circuit court’s decision to
exclude the postfiling evidence “is consistent with case law relevant to this issue.”
It asserts that two cases, State v. Gregory L.S., 2002 WI App 101, 253 Wis. 2d
563, 643 N.W.2d 890, and S.D.S. v. Rock County Department of Social Services,
152 Wis. 2d 345, 448 N.W.2d 282 (Ct. App. 1989), provide authority that
postfiling evidence in abandonment cases is always irrelevant because the
abandonment ground is not predictive in nature and because its elements focus on
events occurring in the past. We disagree.

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No. 2020AP793

¶26 To begin, neither case the Department relies upon creates such
bright-line rules. Additionally, the cases the Department cites are materially
distinguishable. As even the Department concedes, Gregory L.S. is factually
distinguishable because it involves CHIPS proceedings, not TPR proceedings. See
Gregory L.S., 253 Wis. 2d 563, ¶¶1-3. We fail to see how Gregory L.S.’s
holdings inform our analysis of this TPR case because a child’s need for
protection or services guides determinations in CHIPS proceedings, see id.,
¶¶38-40, whereas the parents’ rights are paramount at the grounds phase of TPR
proceedings, see Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255
Wis. 2d 170, 648 N.W.2d 402.

¶27 In S.D.S., the other case the Department relies upon, Rock County
sought to terminate the parents’ rights using the continuing CHIPS ground set
forth in WIS. STAT. § 48.415(2). See S.D.S., 152 Wis. 2d at 348. The court held
that in continuing CHIPS cases, where the petitioner must prove that there is a
substantial likelihood that the parent will not meet the future conditions
established for the child’s return, evidence of postfiling events can be relevant to
that substantial likelihood element. Id. at 359. This court reached that conclusion
because “[t]o assess the likelihood that a parent will not meet certain conditions in
the future may necessarily involve consideration of fresh facts occurring between
the date the petition was filed and the hearing.” Id. We agree with T.F., however,
that S.D.S.’s holding does not inform the issues presented here because “[t]he fact
that such evidence might be required in one type of TPR case provides no support
for the position that the post-filing evidence is never relevant in a different type of
TPR case.”

¶28 Moreover, a more recent case from our supreme court, State v.
Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81, casts doubt on the

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Department’s assertions that the presence of a predictive element in a TPR ground
and the ground’s language determines the relevancy of evidence in a TPR case. In
Bobby G., our supreme court found unpersuasive the State’s argument that
Bobby G.’s postfiling efforts to assume parental responsibility were irrelevant to
that TPR ground. Id., ¶48. Pertinent to the Department’s arguments here, the
Bobby G. court observed that the introductory language in the TPR statute, WIS.
STAT. § 48.415, “does not require that the evidence regarding the grounds be
limited to what has transpired as of the date of filing of the petition. All the statute
requires is that at the time of the fact-finding hearing the State prove the statutory
grounds for termination by clear and convincing evidence.” Bobby G., 301
Wis. 2d 531, ¶53.

¶29 Further, the Bobby G. court expressly questioned the validity of the
“predictive element” argument the Department urges us to adopt here. See id.,
¶54. In Bobby G., the State relied on a comment in WIS JI—CHILDREN 180 to
argue that Bobby G.’s postfiling conduct “is admissible only for [TPR grounds]
that contain a predictive element.” Id. In this case, the Department cites the same
jury instruction comment7 in making the same argument as to the abandonment
ground.

7
The pertinent parts of the comment in WIS JI—CHILDREN 180 to which the Department
cites are as follows:

Issue of Date or Time Period for Jury Verdict. The issue of
the date or time period upon which the jury must focus is most
likely to arise with respect to the many jurisdictional grounds
which are worded in the present tense.

….

Admissibility of Evidence of Post-Petition Conduct. Since
this instruction was first approved in 1996, the legislature has
(continued)

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¶30 Like our supreme court in Bobby G., however, we remain
unconvinced that WIS JI—CHILDREN 180 provides for the bright-line rule that the
Department seeks. The comment to that jury instruction “acknowledges that the
issue of the relevant time period arises in several grounds and concludes that ‘the
question of timing the jury’s consideration of prepetition and postpetition evidence
must be resolved by the trial judge in the context of the jurisdictional ground at
issue.’” Id. (quoting WIS JI—CHILDREN 180 comment). Bobby G., and WIS JI—
CHILDREN 180 for that matter, thus support our conclusion that the relevancy and
admissibility of postfiling evidence in abandonment TPR cases are determined on
a case-by-case basis by analyzing the evidence under the rules set forth in WIS.
STAT. ch. 904, as nothing in WIS. STAT. § 48.415(1) provides that postfiling
evidence is always irrelevant and inadmissible in abandonment cases.

¶31 For the foregoing reasons, we reject the Department’s argument that
the postfiling evidence here is irrelevant simply because the abandonment ground
is not predictive in nature and because its elements focus on events occurring in
the past. We therefore conclude the circuit court erroneously exercised its
discretion by prohibiting T.F. from presenting relevant postfiling evidence at the

added a number of CHIPS and TPR grounds which open the
door for the admissibility of evidence of postpetition conduct
(e.g., see § 48.13(10m), § 48.13(3m), § 48.133, and § 48.415(2)).
For these grounds, which contain an element that is predictive in
nature (e.g., substantial risk of neglect), postpetition conduct
may be relevant to the allegations of the petition.

The Committee reaffirms its original position that the question of
timing the jury’s consideration of pre-petition and post-petition
evidence must be resolved by the trial judge in the context of the
jurisdictional ground at issue.

(Emphasis added.)

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jury trial during the grounds phase of this TPR proceeding.8 In so doing, we
emphasize that we do not hold that postfiling evidence is always admissible in
every abandonment TPR case; instead, we merely hold that postfiling evidence
may be relevant and admissible in an abandonment case, such as the one presented
here.

¶32 Our conclusion that the circuit court erroneously exercised its
discretion does not end our review of this case. We also must determine whether
this error requires us to reverse the circuit court’s order terminating T.F.’s parental
rights to Allie. WISCONSIN STAT. § 805.18(2) provides, in pertinent part:

No judgment shall be reversed or set aside or new trial
granted in any action or proceeding on the ground
of ... error as to any matter of pleading or procedure, unless
in the opinion of the court to which the application is made,
after an examination of the entire action or proceeding, it
shall appear that the error complained of has affected the
substantial rights of the party seeking to reverse or set aside
the judgment, or to secure a new trial.

¶33 To affect the substantial rights of a party, there must be a reasonable
possibility that the error contributed to the outcome of the action or proceeding.
Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768. A
“reasonable possibility” is one that is sufficient to undermine the confidence in the
outcome of the proceeding. State v. Patricia A.M., 176 Wis. 2d 542, 556, 500
N.W.2d 289 (1993). “Thus, a reviewing court must look to the totality of [the]

8
The Department makes no developed argument on appeal that even if the postfiling
evidence is relevant under WIS. STAT. § 904.01, it should nonetheless still be excluded under
WIS. STAT. § 904.03 for being unfairly prejudicial. The Department, as the opponent of the
admission of evidence on the ground of unfair prejudice, has the burden of showing that the
danger of unfair prejudice substantially outweighs the probative value of the evidence. See State
v. Schutte, 2006 WI App 135, ¶51, 295 Wis. 2d 256, 720 N.W.2d 469.

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No. 2020AP793

record and determine whether the error contributed to the trial’s outcome.” Id. at
556-57. “If the error at issue is not sufficient to undermine the reviewing court’s
confidence in the outcome of the proceeding, the error is harmless.” Evelyn C.R.,
246 Wis. 2d 1, ¶28.

¶34 Here, we determine the circuit court’s evidentiary error affected
T.F.’s substantial rights, as there is a reasonable probability that her inability to
present the postfiling evidence contributed to the jury’s decision that she failed to
show good cause for failing to communicate with and visit Allie. As previously
explained, T.F.’s inability to present the postfiling evidence limited the jury’s
ability to fully consider the merits of her argument that the Department stood in
the way of her communicating with and visiting Allie during the abandonment
period. The introduction of the postfiling evidence would have enhanced T.F.’s
credibility in arguing her good cause defense because she would have been able to
prove to the jury that she had face-to-face visits with Allie once the alleged
unreasonable conditions were lifted and the Department provided the type of
assistance it was purportedly required to provide to T.F. during the abandonment
period. The clear inference she would be advancing is that she would have had
such visits and communications during that period but for the Department’s
failings.

¶35 We therefore conclude the circuit court’s error affected T.F.’s
substantial rights.9 Accordingly, we reverse the order terminating T.F.’s parental

9
We have determined that the circuit court erroneously exercised its discretion by
excluding evidence that T.F. communicated with or visited Allie after the Department filed its
TPR petition. As such, we need not address T.F.’s constitutional due process argument that she is
entitled to a new trial because the improperly excluded evidence denied her the right to present
admissible evidence central to her defense. See Patrick Fur Farm, Inc., 286 Wis. 2d 774, ¶8 n.1.

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No. 2020AP793

rights to Allie and remand for a new trial at the grounds phase of these TPR
proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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