COA rejects multiple challenges to TPR and affirms
Rock County Human Services Department v. T.S., 2026AP1628-29, 10/15/26, District IV (ineligible for publication); case activity
Although T.S. presents a medley of interesting legal challenges, COA beats backs those arguments and affirms.
Judicial Bias
T.S. first argues that the judge in this matter was biased because he previously represented T.S. in a criminal case 13 years earlier. (¶4). That case involved felony charges of child abuse. (¶5). His position:
T.S. argues that here, the circuit court judge “possessed confidential information related to [T.S.]’s character and fitness as a parent such that it created the appearance of bias.” T.S. observes that in representing a client charged with physical abuse of a child, and in negotiating a plea to lesser charges, an attorney will learn information from and about the client that is confidential. T.S. implies that information the judge gathered about T.S. during the representation may have included information that would make it unacceptably likely that the judge could not be impartial toward T.S.
(¶21).
However, the judge “consistently asserted that it had no recollection of representing T.S., nor of the case in which it represented it him.” (¶22). COA holds that it is bound to defer to this factual finding. (Id.). Although T.S. argues that the circuit court’s own assessment of bias is not entitled to deference on appeal, COA holds that he has conflated two distinct concepts. Thus, while the “ultimate question of objective bias is subject to de novo review[,]” the “circuit court’s determination of the underlying facts relevant to an objective bias claim” are not. (¶23).
T.S. also points to the Rules of Professional Conduct for Attorneys, which (he argues) establish that the judge had a conflict of interest as an attorney. (¶24). He asserts that, when the source of alleged bias is the former representation of a litigant, the reasoning of the SCRs “should logically apply . . . .” (¶25). COA, however, rejects what it views as an attempt to broaden the bias inquiry and holds that, under the governing standard, there was no basis for recusal here. (¶26). It also rejects what it claims is an attempt to take some of the judge’s comments out of context. (¶27).
As readers of this blog are probably well aware, in practice it is almost impossible to convince an appellate court that a judge is biased. However, the standard itself is relatively broad and allows a finding of bias so long as “a reasonable person could question the judge’s impartiality.” Gudgeon, 2006 WI App 143, ¶ 21. Here, T.S. has established that the person assessing his fitness as a parent had previously represented him in a separate case involving serious allegations of child abuse. His analogy to the rules of professional responsibility is persuasive and he raises a good question as to why the court’s subjective claim of a lack of memory should matter under this objective standard.
Evidence Regarding Chapter 51 Detention
During the trial, T.S.’s corporate guardian (or a representative thereof) testified that T.S. had been emergently detained under Chapter 51 in 2018. (¶29). T.S. first argues this was hearsay, an argument COA claims he has failed to adequately develop. (¶30). In any case, reviewing the evidence, COA is not convinced the testimony “communicate[s] any out-of-court statements offered for their truth.” (Id.). Likewise, COA also finds T.S.’s “other acts” argument similarly undeveloped and does not substantively engage with that argument here. (¶31). Finally, it assumes without deciding that the admission of this evidence violated a pretrial discovery order. (¶32). Given the ample evidence at this trial about T.S.’s mental health situation, including testimony about his 2018 guardianship and protective placement, the evidence is deemed harmless. (¶33).
Reference to Previous TPR
At trial, a case manager testified there was apparently a prior TPR trial pending involving these same children. (¶14). The testimony was stricken but the court denied a request for a mistrial. (¶¶14-15). On appeal, T.S. runs into the onerous standard of review, which vests the circuit court with “sound discretion” whether to grant a mistrial. (¶35). Here, the judge gave a reasonable explanation for its decision and the evidence was not so prejudicial that the ultimate decision was unreasonable. (¶39). While T.S. argues that the jury would have been improperly influenced by this testimony, COA holds that the law requires it “to presume that the jury followed the instructions it was given.” (¶40).