State v. M. H. ( 2023 )

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.
July 11, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP732 Cir. Ct. No. 2022TP198
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO T. H., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
M. H.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
No. 2023AP732
¶1 WHITE, J.1 M.H. appeals the order terminating her parental rights
to her son, T.H. She first argues that the circuit court erred when it entered default
judgment against her on the grounds for the termination of parental rights (TPR)
petition because there was no proof she had notice of the petition. Second, she
argues that the circuit court failed to analyze on the record all required statutory
factors in the dispositional phase of the TPR. We reject both arguments and
accordingly, we affirm.
BACKGROUND
¶2 T.H., born in August 2016, had been detained by the Division of
Milwaukee Child Protective Services (DMCPS) in May 2018, after a report that
T.H. and his older sister, then ages one and two, were observed walking around in
dirty, wet clothing in heavy rain on Milwaukee’s north side. M.H. was arrested
for child neglect. T.H. had been in out-of-home care since he was detained
¶3 The State filed the underlying petition for TPR of T.H. against M.H.
in November 2022. The State alleged three grounds in support of the TPR. First,
abandonment because M.H. abandoned T.H., arising out of M.H. having “no
visits, communication, or contact including written, phone and electronic contact”
with T.H. from at least February 2022 through October 2022. Second, T.H.
continues to be a child in need of protection of services (CHIPS) because M.H. has
not satisfied the conditions and goals established in the CHIPS dispositional order
to return T.H. to her care. Third, M.H. has failed to assume parental responsibility
for T.H.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
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No. 2023AP732
¶4 At a hearing on the TPR petition in December 2022, M.H. did not
appear. The court reviewed that the State filed affidavits of non-service and also
proof of service by publication of the TPR petition for M.H. and T.H.’s purported
father, J.J. Upon the State’s motion, the court found that M.H. and J.J., or any
unknown father, were in default for failure to join in the matter, subject to the
State proving the allegations in the petition.
¶5 The TPR proceedings continued in January 2023; M.H. was not in
attendance. The State began with the testimony of T.H.’s case manager, whose
testimony provided the basis for the State to prove the grounds alleged in the TPR
petition. The case manager testified that T.H. had been in his current foster
placement since December 2021 after being in three previous placements after he
was detained in 2018. He testified that M.H. had not “stepped up to accept the
daily responsibility for the supervision, education, protection or financial support
of the child.” M.H. spends no time with T.H. and does not have a current
visitation schedule.
¶6 The case manager testified that he had contact with M.H. about four
times and that she had reached out to him after the last court date. M.H. has not
paid any child support for T.H. She has not complied with the conditions of return
in the CHIPS dispositional order including that she had not resolved the child
neglect charge issued in 2018 regarding T.H.; she has not engaged in services to
help with her extensive mental health problems; and she has not supervised T.H.
and placed his needs above her own. M.H. had no contact with T.H. from
February through October 2022.
¶7 The State asked the court to “take judicial notice of the juvenile
court record, the placement order, the CHIPS petition and the CHIPS dispositional
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No. 2023AP732
order” in this case, which the court agreed to do. The court stated that it reviewed
the official circuit court file, the CHIPS case documents, the TPR petition, and the
case manager’s testimony. The court found that the State had proven the grounds
alleged in the TPR petition against M.H.: abandonment, continuing CHIPS, and
failure to assume parental responsibility, and consequently, found M.H. to be an
unfit parent.2
¶8 The court moved to the dispositional phase of the TPR petition. The
case manager testified about T.H.’s health and family connections. The case
manager had only been working with T.H. for about two months, but he relied
upon a report prepared by his agency. From his review of the case file and
meeting with T.H., who is now age seven, and his foster father, the case manager
testified that the foster father was interested in adopting T.H. and T.H. was happy
living in this placement. T.H. did not have contact with his mother or father, he
had not lived with his mother since he was detained, there was not a visitation
schedule, and the case manager did not believe that T.H. asked about his parents.
T.H. did not have a substantial bond with his older sister or any extended family
members; M.H.’s parental rights to his older sister had been terminated in 2021.
He did not believe that T.H. would be harmed if the legal relationships with his
parents is severed and that T.H. would be able to enter into a more stable and
permanent family relationship if the TPR were granted.
2
The court also found that the State had proven the ground alleged that J.J. or any other
unknown father of T.H. had failed to assume parental responsibility. T.H.’s paternal parental
rights were later terminated as well. Any issues concerning T.H.’s unknown father are not
subject to this appeal and we address them no further.
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No. 2023AP732
¶9 The State called a treatment social worker from Children’s
Wisconsin who placed T.H. with his current foster placement; she has worked
with T.H. for about five months. T.H. was moved to a treatment foster care
placement, which offers a higher level of care, because he had struggled in his
earlier placements. As she described it, T.H. had “[l]ots of fighting, lots of bed
wetting, lots of needing constant redirection. There was a lot of school issues that
was going on and a lot of sleep issues as well.” She believed those behaviors had
lessened while in his current placement.
¶10 The court considered the facts and circumstances of T.H.’s case and
the required statutory factors in WIS. STAT. § 48.426(3):
[T]he [c]ourt finds there is a strong likelihood of adoption
if the termination of parental rights petition is granted.
There is nothing about the age or health of the child at this
time that would be a barrier to him being adopted. He is
adoptable and there is an adoptive resource for him. The
child was removed from the home and in out of home care
for four years and he has had several other placements
before settling in with [his foster father] in 12 of 2021. The
child does not have a substantial relationship with either the
mother or any unknown fathers. The child does not have a
substantial relationship with any other family members
either on the paternal or maternal side of the family and I
find it would not be harmful to sever the legal relationship
that [T.H.] has with his parents or any other family
members. The child wishes to stay in the home of [his
foster father] and according to … the TPR report from
January 6th of 2023, he refers to [his foster father] as
father. Again, he has been separated from his parents for
the past four years and clearly the child will be able to enter
into a more stable and permanent family relationship as a
result of the termination taking into account the number of
years that he has been out of the parental home, the fact
that the parents have not stepped up to the plate to take on
the responsibility for caring for [T.H.] or meeting the
conditions for the safe return of the child to their home.
and if I don’t grant the termination of parental rights, it is
most likely that [T.H.] will languish in foster care and that
would not be in his best interests.
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No. 2023AP732
The court concluded that “it would be in the best interest of the child to terminate
his parents’ rights.” The court entered the order the following day.
¶11 This appeal follows.
DISCUSSION
¶12 M.H. makes two arguments why the circuit court erroneously
exercised its discretion when it terminated her parental rights to her son. First, she
contends that the court erroneously entered a default judgment on the grounds for
the TPR when it concluded that the State’s notice by publication had accomplished
service and provided adequate notice. Second, M.H. asserts that the circuit court
had insufficient evidence in the record to support its dispositional decision. We
address and reject each argument in turn.
¶13 The decision to terminate parental rights is within the discretion of
the circuit court. See Gerald O. v. Susan R., 203 Wis. 2d 148, 152, 551 N.W.2d
855 (Ct. App. 1996). Moreover, the decision to grant or deny a motion for default
judgment requires an exercise of sound discretion. Split Rock Hardwoods, Inc. v.
Lumber Liquidators, Inc., 2002 WI 66, ¶63, 253 Wis. 2d 238, 646 N.W.2d 19.
We will sustain a circuit court’s discretionary decision unless the court
erroneously exercised its discretion. WIS. STAT. § 805.17(2). A circuit 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 Cnty. DHS v. Mable K.,
2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.
¶14 An involuntary TPR is governed by the Wisconsin Children’s Code,
WIS. STAT. ch. 48. The first stage is whether the grounds for the TPR exist,
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No. 2023AP732
typically determined in a fact-finding hearing pursuant to WIS. STAT. § 48.424.
The State has the burden to show that grounds for termination exist by clear and
convincing evidence. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶22, 246 Wis. 2d 1,
629 N.W.2d 768. However, a circuit court may grant a default judgment on the
grounds phase if no issue of law or fact has been joined and the time for joining
issue has expired. WIS. STAT. § 806.02(1). Even if a default is granted, the court
“shall hear testimony in support of the allegations in the petition,” and the State is
required to “prove up” the grounds for the TPR. See WIS. STAT. § 48.422(3).
¶15 The second stage is the dispositional phase, in which the circuit
court decides whether the evidence warrants the termination of parental rights and
if the termination is in the best interests of the child. Evelyn C.R., 246 Wis. 2d 1,
¶23. To determine whether termination is in the child’s best interests, the circuit
court must consider six statutory factors on the record. WIS. STAT. § 48.426.3 See
State v. Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475.
3
In determining the disposition of a TPR petition, the circuit court must consider, but is
not limited to, the following six factors:
(a) The likelihood of the child’s adoption after termination.
(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was removed
from the home.
(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the child.
(continued)
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No. 2023AP732
¶16 We now turn to M.H.’s first argument. M.H. argues that the default
judgment was inappropriate because the publication of the summons did not
ensure she had notice of the TPR proceedings. “Whether service of a summons is
sufficient to obtain personal jurisdiction over a defendant involves the
interpretation and application of a statute to undisputed facts and is reviewed as a
question of law.” Useni v. Boudron, 2003 WI App 98, ¶8, 264 Wis. 2d 783, 662
N.W.2d 672. WISCONSIN STAT. § 801.11(1) provides that service of a natural
person may be accomplished by “personally serving the summons.” If personal
service cannot be accomplished with “reasonable diligence,” then substitute
service can be made by leaving a copy with a competent adult in the person’s
usual place of abode, or if that fails, by “publication of the summons as a class 3
notice, under ch. 985, and by mailing.” Sec. 801.11(1)(b)-(c). Chapter 985
discusses the qualifications of a newspaper for legal notices and provides that the
notice “shall be published in a newspaper likely to give notice in the area or to the
person affected.” WIS. STAT. § 985.02.
¶17 The record reflects that the State attempted personal service on M.H.
three times, each at the address where she had been known to live by DMCPS.
When the third attempt was unsuccessful, the State published the summons in the
Daily Reporter, a newspaper allowed to print legal notices for residents in
Milwaukee County. M.H. asserts that there is no proof that she lived in
(f) Whether the child will be able to enter into a more stable and
permanent family relationship as a result of the termination,
taking into account the conditions of the child's current
placement, the likelihood of future placements and the results of
prior placements.
WIS. STAT. § 48.426(3).
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No. 2023AP732
Milwaukee at the time the petition was filed and served; therefore, the publication
of the summons in a Chapter 985-qualified newspaper for Milwaukee cannot be
said to have notified her of the proceedings.
¶18 MH’s argument relies on PHH Mortg. Corp. v. Mattfeld, 2011 WI
App 62, ¶11, 333 Wis. 2d 129, 799 N.W.2d 455 (Ct. App. 2011), where this court
concluded that the plaintiff mortgage holder failed to comply with WIS. STAT.
ch. 985 when it published the summons to effectuate service after personal service
was not accomplished. Id., ¶9. In that case, the mortgage company published the
summons in the Daily Reporter, which was shown to be a “qualified legal
newspaper in Milwaukee County,” but it was “not a qualified legal newspaper in
Waukesha County,” where the property under foreclosure was located. Id., ¶10.
The circuit court then determined that without effective service by publication, the
court did not have jurisdiction when it entered a default judgment against the
homeowners. Id., ¶12.
¶19 MH’s argument fails because the State published the summons
notice in the “newspaper likely to give notice” to M.H. based on her last known
address. See WIS. STAT. § 985.02. Her reliance on Mattfeld is misplaced because
in that case, the property in foreclosure was at a known address in Waukesha
County, and the mortgage holder attempted service by publication using a
newspaper “not qualified” in Waukesha County. Id., 333 Wis. 2d 129, ¶11. Here,
M.H. offers the conclusory statement that it was not proven she lived in
Milwaukee County at the time of the service by publication. However, she fails to
assert that more diligent efforts could have yielded another address for personal
service and as the State notes, her notice of intent for postdispositional relief listed
a City of Milwaukee address. M.H.’s argument about lack of proof that she had
notice because of the State’s choice to publish the summons in a qualified
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No. 2023AP732
newspaper for Milwaukee County is undeveloped.4 We decline to develop it for
her. See Dane Cnty. DHS v. J.R., 2020 WI App 5, ¶22, 390 Wis. 2d 326, 938
N.W.2d 614 (explaining that this court does not address insufficiently developed
arguments). We conclude that circuit court’s decision to enter default judgment
was not inappropriate.
¶20 M.H.’s second argument is that the circuit court failed to analyze on
the record all required statutory factors in the dispositional phase of the TPR.
“While it is within the province of the circuit court to determine where the best
interests of the child lie, the record should reflect adequate consideration of and
weight to each factor.” Margaret H., 234 Wis. 2d 606, ¶35. Our review of the
record supports that the circuit court examined each factor on the record and
considered the best interests of T.H. during the dispositional stage. It is our task to
search for evidence to support the circuit court findings, “not for evidence to
support findings the [circuit] court could have reached but did not.” Noble v.
Noble, 2005 WI App 227, ¶15, 287 Wis. 2d 699, 706 N.W.2d 166. Therefore, we
4
We note M.H. has made the barest argument that service was not effectuated by the
State’s choice of newspaper, but she does not develop that argument to assert that the circuit court
lacked personal jurisdiction over her in this case—the actual reasoning used by this court to
reverse and remand proceedings in PHH Mortg. Corp. v. Mattfeld, 2011 WI App 62, ¶11, 333
Wis. 2d 129, 799 N.W.2d 455 (Ct. App. 2011). We decline to address this issue further because
it is insufficiently developed. See Dane Cnty. DHS v. J.R., 2020 WI App 5, ¶22, 390 Wis. 2d
326, 938 N.W.2d 614 (explaining that this court does not address insufficiently developed
arguments).
The guardian ad litem (GAL) argues that M.H.’s argument is furthermore procedurally
incorrect because she never moved the circuit court to reopen the judgment under WIS. STAT.
§ 806.07; therefore, she has forfeited her challenge to the default judgment. This court will
generally not address forfeited arguments made for the first time on appeal. See Townsend v.
Massey, 2011 WI App 160, ¶23, 338 Wis. 2d 114, 808 N.W.2d 155. We note that M.H. fails to
refute this argument.
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No. 2023AP732
conclude that the circuit court complied with the statutory mandates and
Margaret H.
¶21 To the extent that M.H. focuses specifically on the third factor, we
interpret her to challenge the sufficiency of the evidence to support this factor:
“[w]hether the child has substantial relationships with the parent or other family
members, and whether it would be harmful to the child to sever these
relationships.” WIS. STAT. § 48.426(3)(c). M.H. contends that the evidence
received by the court was insufficient to form the basis of the court’s reasoning.
“Our standard of review in a challenge to the sufficiency of the evidence is
whether there is any credible evidence to sustain the verdict.” St. Crois Cnty.
DHHS v. Michael D., 2016 WI 35, ¶29, 368 Wis. 2d 170, 880 N.W.2d 107.
Whether the evidence was sufficient is a question of a law we review
independently. Tammy W-G. v. Jacob T., 2011 WI 30, ¶17, 333 Wis. 2d 273, 797
N.W.2d 854.
¶22 Here, while we acknowledge M.H.’s assertion that the case
manager’s testimony was brief, we consider her to mischaracterize the record to
assert that the basis for this factor was limited to the case manager’s testimony that
he did not believe T.H. has substantial relationships with his extended family or
that T.H. would not be harmed if the legal relationships with his parents were
severed. The record reflects that the case manager also testified about T.H.’s
short-term and long-term lack of contact with his mother including that there was
no scheduled visitation with her, that he had very limited contact with his older
sister, and that earlier attempts to have an extended family foster placement had
failed. Further, the circuit court stated in addition to the testimony before the
court, it had also reviewed the historical data in the official circuit court file and
took judicial notice of the CHIPS action, the juvenile case, and the documentation
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No. 2023AP732
in the TPR petition. Accordingly, we conclude that there was credible evidence in
the record to support the circuit court’s consideration of the third factor.
¶23 We conclude that in determining whether the TPR was in T.H.’s best
interests, the circuit court considered the relevant facts, applied the proper
standard of law, and demonstrated rational decision making, reaching a conclusion
that a reasonable court could reach. Mable K., 346 Wis. 2d 396, ¶39.
Accordingly, we conclude its exercise of discretion to terminate M.H.’s parental
rights was not erroneous.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
12