Rusk County v. R. S.

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.
January 20, 2023
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. 2022AP1530 Cir. Ct. No. 2020TP7
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A. S.,
A PERSON UNDER THE AGE OF 18:
RUSK COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
R. S.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Rusk County:
STEVEN P. ANDERSON, Judge. Affirmed.
No. 2022AP1530
¶1 HRUZ, J.1 Ruth2 appeals an order terminating her parental rights
(TPR) to Adam based on a petition filed by the Rusk County Department of
Health and Human Services. Specifically, Ruth argues that there was insufficient
evidence to support the jury’s verdict on the asserted ground that Adam was a
child in continuing need of protection or services (continuing CHIPS) pursuant to
WIS. STAT. § 48.415(2). Accordingly, Ruth contends that the circuit court erred
by denying her motion for a directed verdict at the close of the Department’s
evidence and her motion for a judgment notwithstanding the verdict.3
¶2 TPR petitions based on the continuing CHIPS ground require proof
of three elements, see WIS. STAT. § 48.415(2), but Ruth solely challenges the
sufficiency of the evidence regarding the second element. Namely, Ruth argues
that the evidence presented at trial did not establish that the Department made
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
Cases appealed under WIS. STAT. RULE 809.107 are “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.
2
For ease of reading, we refer to the appellant and the child in this confidential matter
using pseudonyms, rather than their initials.
3
In her briefs, Ruth refers to her “motion for a directed verdict” in the singular, when, in
fact, she technically made two such motions. The first was a motion for a directed verdict on
each count at the close of the Department’s case under WIS. STAT. § 805.14(3). The second was a
motion for a judgment notwithstanding the verdict under § 805.14(5)(b). Because there was only
one relatively inconsequential witness called by Ruth in her case and because Ruth does not argue
separately the merit of each denial, we adopt Ruth’s nomenclature for the remainder of this
opinion. In other words, we will treat her appeal as challenging the denial of “a” motion for a
directed verdict. And, as noted below, Ruth’s argument, and our analysis of the same, is that of
the sufficiency of the evidence in all events.
2
No. 2022AP1530
reasonable efforts, as required by § 48.415(2)(a)2.b., to provide the services
ordered in the original CHIPS dispositional order. In particular, Ruth argues that
the Department failed to assist her in obtaining inpatient mental health care. The
Department argues that it presented sufficient evidence of its reasonable efforts to
assist Ruth. We conclude that the circuit court properly denied Ruth’s motion for
a directed verdict and that there was sufficient evidence to support the jury’s
verdict. We therefore affirm the TPR order.4
BACKGROUND
¶3 Ruth is the biological mother of Adam, who was born in 2015. In
September 2017, after a hearing on the Department’s CHIPS petition, the circuit
court entered a dispositional order removing Adam from Ruth’s home. At that
time, Ruth was unavailable to care for Adam because she was incarcerated. Since
that date, Adam has not lived with Ruth.
¶4 The dispositional order included conditions that Ruth was required
to complete in order for Adam to be returned to her care. Primarily, Ruth was
required to “resolve all legal issues[,]” and “follow all rules of her probation and
have no further law enforcement violations.” The order also required Ruth to
comply with programming associated with an alternative to revocation (ATR) and,
once completed, meet twelve conditions. Among these twelve conditions were
requirements that Ruth “maintain absolute sobriety,” “not participate in criminal
activity,” and “cooperate with the [Department] including … participating in
4
On appeal, Ruth does not challenge the circuit court’s determination, in the
dispositional stage of the proceedings, that terminating Ruth’s parental rights was in Adam’s best
interest.
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No. 2022AP1530
meetings with the social worker.” Ruth was also required to “attend counseling to
address any past or current issues.”
¶5 In October 2020, the Department filed a petition to terminate Ruth’s
parental rights. The Department filed an amended petition shortly thereafter,
asserting two grounds for termination: (1) continuing CHIPS; and (2) three-month
abandonment.
¶6 A three-day jury trial was held on the amended petition regarding
grounds for the TPR. A number of witnesses testified, including Ruth and her
most recent social worker, Karrie Groothousen, who was assigned to Ruth’s case
in May 2019. Among the other witnesses called by the Department were a family
advocate, a probation agent, a police deputy, a chief deputy, a jail captain, a police
chief, two therapists, and a Rusk County employee. Ruth testified that she
complied with the ATR referenced in the dispositional order and completed the
associated program between October 2017 and January 2018. Ruth and other
witnesses also testified, however, that Ruth was incarcerated for multiple periods
between February 2018 and when the TPR petition was filed in October 2020.
Some of these incarcerations were due to probation holds. Additionally, various
witnesses, including Ruth herself, testified regarding issues with her ability to
“maintain absolute sobriety.”
¶7 Ruth further testified that in early 2019 she was working on a
“reverse plan” with the Department. The goal of this reverse plan was to
eventually return Adam to Ruth’s care. Ruth elaborated that, as part of this plan,
she started attending mental health counseling, alcohol and other drug abuse
(AODA) counseling and began participating in parenting classes. Ruth eventually
did complete a parenting class program. Ruth noted that she had a mental health
4
No. 2022AP1530
crisis in July 2019. Deputy Mark Ohmstead testified that he responded to the
incident, and Ruth was taken to the hospital as a result.
¶8 Groothousen testified that at a team meeting on August 1, 2019,
Groothousen informed Ruth that the Department would be recommending a TPR.
According to Groothousen, the possibility of pursuing a TPR in Ruth’s case had
been previously discussed within the Department, including before Ruth’s July
2019 mental health crisis. Groothousen testified that after she told Ruth about the
recommendation, communications with Ruth were “strained” and
“uncomfortable.”
¶9 Throughout the period following the dispositional order and during
the TPR proceedings, Ruth did engage in some mental health services. In
particular, Ruth testified that from April to July 2019, she met with
Abby Dieckman for AODA counseling. Dieckman, a mental health addiction
therapist, testified that Ruth engaged with both individual and group therapy
sessions at a clinic where Dieckman worked. However, Dieckman testified that
Ruth did not complete the programming. After Ruth discontinued care at the
clinic, Dieckman wrote Ruth a letter recommending a higher level of care than the
clinic was able to provide and sent a copy of the letter to Groothousen and Ruth’s
probation agent. Both Ruth and Groothousen testified that Dieckman
recommended inpatient treatment. Ruth also testified that, in August 2019, when
she discontinued care at the clinic, the clinic also recommended that she resume
taking medication. Ruth stated that she did not comply with that recommendation
because her insurance would not cover the medication. While Ruth testified that
she discussed options for obtaining the medication with the Department, Ruth did
not explain what these options were. Moreover, Ruth testified that she did not
follow through with seeking out these options.
5
No. 2022AP1530
¶10 Katie Plotz, a behavioral therapist, testified that in August 2020, she
conducted an intake meeting with Ruth for individual therapy. That same month,
Plotz met with Ruth for an individual therapy session. This session, however, was
the only one that Ruth attended out of eight scheduled sessions. The same
program had a group therapy component, and Ruth completed the sixteen required
group sessions for that component.
¶11 As for inpatient services, the trial testimony established that
inpatient treatment never occurred, which the Department does not contest on
appeal. Groothousen testified that “there was not room” available for Ruth to
attend inpatient treatment. As to her efforts to help facilitate inpatient treatment,
Groothousen testified that she reached out to a specialized county agency, “adult
services”—described as a department that frequently works with adults in need of
mental health treatment and AODA—to inquire if there were options available for
Ruth. Groothousen further explained that it was her “understanding … that [the
Department of Corrections (DOC)] was going to set up some inpatient treatment.”
Earlier in her testimony, Groothousen also explained that when a person has
conditions to satisfy for both the DOC and the Department, the two agencies will
communicate in order to ensure an individual is “not doing one thing for [the
DOC] and then having to do the same thing for [the Department].” Groothousen
further testified that “[i]f [the DOC] cannot offer the service, [the Department]
also will offer it.”
¶12 Throughout the trial, Groothousen testified regarding her levels of
communication with Ruth and other efforts during her time as Ruth’s social
worker for the CHIPS case. In particular, Groothousen testified that “there were
times where [Ruth] would be receptive … and other times where she did not want
to communicate with me.” As to her own efforts, Groothousen testified that when
6
No. 2022AP1530
she started on the case, Ruth “had been doing fairly well,” such that
Groothousen’s role at that time was “encouraging [Ruth] to continue with sobriety
and all the services that she had.” Groothousen further testified that she would
“bring [Adam] out to [Ruth’s] house for … visits” and then she would determine if
Ruth needed any other resources. Groothousen testified that in the beginning of
2020, she “continued to reach out to [Ruth to] have her … come in to the office for
visits or occasional drug tests” and reoffered AODA resources.
¶13 During the trial, the Department submitted an exhibit of a
permanency hearing order from June 2020, which also contained notice for the
potential termination of Ruth’s parental rights. Groothousen testified that from
June 2020 onward, Ruth engaged very little with respect to complying with her
return conditions.
¶14 Once the Department rested its case at the end of the second day of
trial, Ruth made two motions for a directed verdict regarding both counts
contained in the amended petition. The circuit court denied both motions. As
relevant to the continuing CHIPS ground, the court discussed services that were
offered to Ruth and that she had completed some services but had failed to
complete others. The court specifically noted that there was a referral for a higher
level of services and referenced Groothousen’s testimony in that regard. The court
concluded that the record contained enough evidence “for a reasonable jury to find
that reasonable efforts were taken to provide the services necessary.”
¶15 The jury ultimately found that grounds existed to terminate Ruth’s
parental rights under the continuing CHIPS ground but not under the three-month
abandonment ground. Concerning the continuing CHIPS ground, the special
verdict form specifically asked the jury if it believed that the Department “ma[de]
7
No. 2022AP1530
a reasonable effort to provide the services ordered by the court,” and the jury
answered that question “yes.” After the verdict was returned, Ruth made a motion
for a judgment notwithstanding the verdict. The court denied the motion, stating,
“[I]t’s clear from the record that there was adequate evidence in the record to
support the verdicts that the jury reached.”
¶16 The circuit court later held a dispositional hearing, where it found
Ruth unfit and terminated her parental rights to Adam. Ruth now appeals.5
DISCUSSION
¶17 A contested TPR proceeding involves a two-step procedure.
Sheboygan Cnty. Dep’t of Health & Hum. Servs. v. Julia A.B., 2002 WI 95, ¶24,
255 Wis. 2d 170, 648 N.W.2d 402. The first step is to have either the circuit court
or a jury determine whether grounds exist for a TPR at a fact-finding hearing.
WIS. STAT. § 48.415. During the fact-finding hearing, the petitioner must prove
the allegations supporting grounds for termination by clear and convincing
evidence. Sheboygan Cnty. Dep’t of Health & Hum. Servs. v. Tanya M.B., 2010
WI 55, ¶52, 325 Wis. 2d 524, 785 N.W.2d 369. Once the fact-finding hearing is
completed, either the court or the jury will determine if grounds for a TPR have
been proven and, if so, the court shall find the parent unfit. Julia A.B., 255
Wis. 2d 170, ¶26; WIS. STAT. § 48.424(3)-(4). “Once the court has declared a
parent unfit, the proceeding moves to the second, or dispositional [step], at which
5
We note that Ruth, on appeal, takes issue with a number of factual assertions in the
Department’s briefing. We agree that, at various points in its briefing, the Department made
unsupported factual assertions. We encourage the Department, in the future, to ensure that its
assertions are supported by the record. That said, we have carefully reviewed the record, and our
opinion is faithful to it.
8
No. 2022AP1530
the child’s best interests are paramount.” Steven V. v. Kelley H., 2004 WI 47, ¶26,
271 Wis. 2d 1, 678 N.W.2d 856; see also WIS. STAT. § 48.426(2).
¶18 In this case, the jury found that the Department had proved the
continuing CHIPS ground for terminating Ruth’s parental rights. As relevant here
the continuing CHIPS ground requires the petitioner to prove:
1. That the child has been adjudged to be a child or an
unborn child in need of protection or services and placed,
or continued in a placement, outside his or her home
pursuant to one or more court orders ….
….
b. That the agency responsible for the care of the child and
the family or of the unborn child and expectant mother has
made a reasonable effort to provide the services ordered by
the court.
3. That the child has been placed outside the home for a
cumulative total period of 6 months or longer pursuant to
an order listed under subd. 1., not including time spent
outside the home as an unborn child; that the parent has
failed to meet the conditions established for the safe return
of the child to the home; and, if the child has been placed
outside the home for less than 15 of the most recent 22
months, that there is a substantial likelihood that the parent
will not meet these conditions as of the date on which the
child will have been placed outside the home for 15 of the
most recent 22 months, not including any period during
which the child was a runaway from the out-of-home
placement or was residing in a trial reunification home.
WIS. STAT. § 48.415(2)(a). For purposes of the continuing CHIPS ground,
“reasonable effort” means “an earnest and conscientious effort to take good faith
steps to provide the services ordered by the court,” taking into consideration the
characteristics of the parent or child, the parent’s level of cooperation, and other
relevant circumstances of the case. Sec. 48.415(2)(a)2.a.
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No. 2022AP1530
¶19 “A TPR is civil in nature, and the Wisconsin Rules of Civil
Procedure permit directed verdicts in civil proceedings.” Door Cnty. Dep’t of
Health & Fam. Servs. v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167(Ct. App. 1999); see also WIS. STAT. § 805.14(3)-(4). Specifically, and as relevant
here, “At the close of plaintiff’s evidence in trials to the jury, any defendant may
move for dismissal on the ground of insufficiency of evidence.” Sec. 805.14(3).6
¶20 “We examine as a question of law whether the circuit court properly
refused to grant a directed verdict.” Tammy W-G. v. Jacob T., 2011 WI 30, ¶17,
333 Wis. 2d 273, 797 N.W.2d 854. “In reviewing the denial of a motion for a
directed verdict, we assess whether the record contains sufficient credible
evidence, including the inferences therefrom, to sustain a finding in plaintiff’s
favor.” Id., ¶71. “A motion for a directed verdict should be granted only where
the evidence is so clear and convincing that a reasonable and impartial jury
properly instructed could reach but one conclusion.” Scott S., 230 Wis. 2d at 465
(citation omitted). Because of the circuit court’s “superior advantages for judging
of the weight of the testimony and its relevancy and effect,” an appellate court
should disturb the circuit court’s decision to deny a motion for a directed verdict
only when it is “clearly convinced” that the circuit court was wrong. Miller v.
Wal-Mart Stores, Inc., 219 Wis. 2d 250, 273, 580 N.W.2d 233 (1998) (citation
omitted).
6
In addition, after a jury has returned a verdict, a party against whom a verdict was
rendered “may move the court for judgment notwithstanding the verdict in the event that the
verdict is proper but, for reasons evident in the record which bear upon matters not included in
the verdict, the movant should have judgment.” WIS. STAT. § 805.14(5)(b).
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No. 2022AP1530
¶21 Ruth’s appellate arguments employ the general standards regarding
the sufficiency of the evidence in relation to our standard of review, and those
principles echo the foregoing. Namely, “[w]e independently review, as a question
of law, whether the evidence is sufficient to support the jury’s verdict.” Tammy
W-G., 333 Wis. 2d 273, ¶17. “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. Croix Cnty. Dep’t of Health & Hum. Servs. v. Michael D., 2016 WI
35, ¶29, 368 Wis. 2d 170, 880 N.W.2d 107. “When reviewing a jury’s verdict, we
consider the evidence in the light most favorable to the verdict.” Tammy W-G.,
333 Wis. 2d 273, ¶39. “[T]he [circuit] court is the ultimate and final arbiter of the
credibility of witnesses, and we must accept the [circuit] court’s credibility
determination[s].” Nicholas C.L. v. Julie R.L., 2006 WI App 119, ¶23, 293
Wis. 2d 819, 719 N.W.2d 508.
¶22 On appeal, Ruth specifically challenges whether the Department
provided sufficient evidence to prove that it made a “reasonable effort,” as
required by WIS. STAT. § 48.415(2)(a)2.b., to assist Ruth in obtaining mental
health counseling. She focuses on the inpatient mental health care recommended
by the clinic at which she was treated and by her mental health addiction therapist,
Dieckman.
¶23 Ruth does not assert that the 2017 dispositional order, or any order,
explicitly required her to receive inpatient mental health care; rather, she asserts
that the Department was implicitly required to assist Ruth in obtaining inpatient
care based on other conditions in the order and the fact of Dieckman’s
recommendation. While Ruth argues that the Department was “obliged to make
reasonable efforts to assist Ruth in obtaining inpatient mental health care,” she
fails to show explicitly how that level of care was required under the conditions of
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No. 2022AP1530
her CHIPS dispositional order. Instead, Ruth argues that the Department was
required to provide both “case management” and “[i]ndividual [c]ounseling.”
Ruth asserts that these requirements, taken together, equated to an obligation of
the Department to assist her with obtaining inpatient mental health care.
¶24 Ruth is correct that the Department was required to introduce clear
and convincing evidence that it “made a reasonable effort to provide the services
ordered by the court.” See WIS. STAT. § 48.415(2)(a)2.b. (emphasis added). Ruth
has not shown, however, that the circuit court ever ordered her to complete
inpatient mental health care. Rather, the dispositional order required the
Department only to make reasonable efforts in providing case management
services and assisting Ruth in receiving individual counseling.
¶25 Even if we were to construe the conditions set out in the
dispositional order to require inpatient mental health care, we conclude that there
was sufficient evidence, including the reasonable inferences from such evidence,
to sustain a finding that the Department made reasonable efforts to assist Ruth in
complying with that requirement. Partially in an effort not to duplicate services
for Ruth, Groothousen testified that she communicated with the DOC to ensure
that the Department offered services if the DOC did not offer them. Specifically
for inpatient mental health care, Groothousen testified that she asked another,
more specialized county agency if there was available inpatient care and also
communicated with the DOC regarding inpatient referral. Further, Groothousen
testified that she was in contact with Ruth and would encourage her to continue
utilizing the various resources offered to her.
¶26 Notably, in this case, the Department faced obstacles providing
services and assistance to Ruth—circumstances that can be considered in
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No. 2022AP1530
determining whether an agency made a reasonable effort. See WIS. STAT.
§ 48.415(2)(a)2.a. (explaining the term “‘reasonable effort’ … takes into
consideration the characteristics of the parent …, the level of cooperation of the
parent … and other relevant circumstances of the case.”). There was a wealth of
testimony that Ruth was frequently incarcerated, a fact that Ruth does not dispute.
The jury was permitted to reasonably infer that these circumstances hindered
efforts to provide Ruth with certain services, including inpatient mental health
services.
¶27 Additionally, Ruth was engaged in services, but she repeatedly failed
to complete various programs. Plotz testified that, in one instance, Ruth
completed only one out of eight scheduled individual mental health counseling
appointments, which was an explicit condition in the 2017 dispositional order.
Ruth testified that the Department discussed medication coverage options with
her, but she conceded that she did not follow through with the options. She did
not testify that such resources were unavailable. While the Department was
required to put forth reasonable efforts to assist Ruth, the Department’s ability to
provide services to Ruth was limited by her engagement in those services and her
completion of the programs.
¶28 In sum we conclude that the circuit court properly denied Ruth’s
motion for a directed verdict on the continuing CHIPS ground and that there was
sufficient evidence to support the jury’s verdict on that ground. Reviewing the
record, there was sufficient credible evidence, including the inferences therefrom,
for a jury to sustain a finding in the Department’s favor. See Tammy W-G., 333
Wis. 2d 273, ¶71. Additionally, while inpatient mental health treatment was not a
condition of Ruth’s dispositional order, it is clear from the trial testimony that
Ruth was referred to inpatient care, and considering the evidence in the light most
13
No. 2022AP1530
favorable to the verdict, there is sufficient evidence from which a reasonable jury
could find that the Department made reasonable efforts to assist Ruth in obtaining
that care. See id., ¶39. We therefore affirm the TPR order following the jury’s
verdict finding that the Department proved the continuing CHIPS ground for
termination of Ruth’s parental rights.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
14