Chippewa County Department of Human Services v. T. M. J.

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.
October 24, 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 Nos. 2023AP463 Cir. Ct. Nos. 2021TP24
2021TP26
2023AP464
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
NO. 2023AP463
IN RE THE TERMINATION OF PARENTAL RIGHTS TO D. T. B.,
A PERSON UNDER THE AGE OF 18:
CHIPPEWA COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
T. M. J.,
RESPONDENT-APPELLANT.
NO. 2023AP464
IN RE THE TERMINATION OF PARENTAL RIGHTS TO D. E. B.,
A PERSON UNDER THE AGE OF 18:
CHIPPEWA COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
Nos. 2023AP463
2023AP464
V.
T. M. J.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Chippewa County:
STEVEN H. GIBBS, Judge. Affirmed.
¶1 GILL, J.1 Tracy2 appeals from orders terminating her parental
rights to her two sons, Derek and Drew, based upon a continuing need of
protection or services.3 Tracy argues that the circuit court erroneously exercised
its discretion when it failed to consider whether Derek and Drew had substantial
relationships with their older siblings and whether terminating Tracy’s parental
rights would be harmful to those relationships. We disagree and therefore affirm
the court’s ruling.
1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading and to protect confidentiality, we refer to the appellant in this
confidential manner using a pseudonym, rather than her initials, and we do the same for any of
the appellant’s family members referenced in this opinion.
3
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.” 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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BACKGROUND
¶2 In January 2020, Derek and Drew were removed from Tracy’s care.
The circuit court ordered that Derek and Drew be placed in a foster home. Due to
the children’s behavior, Derek and Drew were moved to their current level four
treatment foster home, in November 2020.4 The current foster family has been
providing children with foster care for over ten years and they have specialized
training in caring for traumatized children.
¶3 In December 2020, and as relevant here, the circuit court suspended
contact between Tracy and Derek and Drew. The Chippewa County Department
of Human Services petitioned for the termination of Tracy’s parental rights, on
grounds that her children were in a continuing need of protection or services
(CHIPS). In October 2022, following a bench trial, the court found grounds to
terminate Tracy’s parental rights to both boys, and further found Tracy unfit to
parent Derek and Drew pursuant to WIS. STAT. § 48.424(4). The court then
scheduled a dispositional hearing to determine Derek’s and Drew’s best interests.
At the dispositional hearing, the Department called two witnesses to testify
concerning Derek’s and Drew’s best interests.
¶4 The Department’s first witness was Sara Torrence, Derek and
Drew’s social worker. Torrence testified that Derek and Drew did not have a
substantial relationship with Tracy, neither boy had any contact with Tracy for
over two years, and no one in Tracy’s family other than the boys’ siblings had
4
To qualify as a level four treatment foster home, a foster family must meet heightened
requirements including being foster parents for a specified number of years and receiving
specialized training for traumatized children.
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substantial relationships with the boys. Torrence stated that Derek and Drew had
relationships with their siblings and that they still had contact with their siblings.
Torrence also testified that, in her opinion as a social worker, it was in Derek’s
and Drew’s best interests to terminate Tracy’s parental rights.
¶5 The Department’s second witness was Derek and Drew’s foster
mother. She testified that Derek and Drew did not refer to Tracy as “mom” and
had never asked to see Tracy. She also stated that Derek and Drew had
relationships with their siblings. The foster mother further testified that she had to
temporarily stop contact between Derek and Drew and their sister, Dina, due to
Dina’s mental health issues, and because the foster parents felt that contact with
her was not currently safe.
¶6 The foster mother testified that she and her husband, however, had
tried to maintain visits between Derek and Drew and all of their siblings. The
foster parents had: hosted a family feast, and all of Derek and Drew’s siblings
were invited to attend; they took Derek and Drew to a restaurant to meet with their
siblings, Adam and Stacy; and they invited Dina to their home multiple times.
The foster mother stated that it was “[a]bsolutely” their intention to continue to
maintain a relationship among Derek, Drew, and their siblings as “it’s important to
have that biological connection because otherwise the children really struggle to
find a place in the world.”
¶7 Tracy testified that, among other things, she wanted all of her
children to be together in the same home. The circuit court then weighed each of
the six factors in WIS. STAT. § 48.426 to determine each child’s best interests. The
court found the following: (1) there was a high likelihood that Derek and Drew
would be adopted; (2) Derek and Drew had been living with their foster parents
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for over two years and had been thriving under their care; (3) none of Tracy’s
relatives had substantial relationships with Derek and Drew, and Tracy had not
contacted her children in over two years; (4) Derek and Drew wished to have their
last name changed to their foster parents’ last name; (5) Derek and Drew had been
out of Tracy’s home for three years; and (6) Derek and Drew were in a strong,
positive support system where their needs were being met.
¶8 After making these findings, the circuit court stated that all six
factors indicated that it was in Derek’s and Drew’s best interests to terminate
Tracy’s parental rights. The court terminated Tracy’s parental rights to Derek and
Drew. Tracy now appeals.
DISCUSSION
¶9 On appeal, Tracy argues that the circuit court erroneously exercised
its discretion at the dispositional hearing when it terminated her parental rights.
Specifically, Tracy contends that the court failed to sufficiently consider, as
required by statute, whether Derek and Drew have a substantial relationship with
their siblings and whether terminating Tracy’s parental rights would be harmful to
Derek’s and Drew’s relationships with their siblings. We disagree.
¶10 A circuit court’s ultimate decision of whether to terminate parental
rights is discretionary. Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d
855 (Ct. App. 1996). We will not reverse the court’s decision unless the court
erroneously exercised its discretion. State v. Margaret H., 2000 WI 42, ¶32, 234
Wis. 2d 606, 610 N.W.2d 475. 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.” Cindy R., 203 Wis. 2d at 152.
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¶11 A contested proceeding for the termination of parental rights
involves a two-step procedure. Only the second step is at issue here.5 Having
found that grounds exist to terminate Tracy’s parental rights and that Tracy was
unfit to parent Derek and Drew, the circuit court was required to determine
whether to terminate Tracy’s parental rights at a dispositional hearing. See
Sheboygan Cnty. Dep’t of Health & Hum. Servs. v. Julie A.B., 2002 WI 95,
¶¶26, 28, 255 Wis. 2d 170, 648 N.W.2d 402. The court must consider the best
interests of the child at this stage of the proceedings. WIS. STAT. § 48.426(2). To
determine the best interests of the child, the 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.
(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.
Sec. 48.426(3).
5
Tracy does not challenge the circuit court’s findings with respect to the grounds phase
of the proceedings. Rather, Tracy challenges only the court’s findings during the dispositional
phase.
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¶12 In this case, Tracy contends that the circuit court erroneously
exercised its discretion under WIS. STAT. § 48.426(3)(c) by not considering
Derek’s and Drew’s relationships with their biological siblings. Tracy concedes
that the court properly considered the five other statutory factors.
¶13 The record belies Tracy’s argument. The circuit court considered
whether the children had a substantial relationship with their mother or other
family members, stating “[t]here was testimony that none of the relatives of
[Tracy] have a substantial relationship with [Derek and Drew] and, additionally,
that [Tracy] hasn’t had contact with the children in over two years.” The court
further found that it would not be harmful to the children to sever their
relationships with their mother and her relatives.
¶14 Tracy correctly states that the circuit court did not specifically
mention Derek’s and Drew’s relationships with their siblings and that Derek’s and
Drew’s relationships with their siblings were severed by the termination of her
parental rights. See Margaret H., 234 Wis. 2d 606, ¶¶19-21. However, we
conclude that the record supports the court’s implicit finding that severance of
Tracy’s parental rights would not be harmful to Derek’s and Drew’s relationships
with their siblings. See Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1,
612 N.W.2d 737 (“Although the proper exercise of discretion contemplates that
the [court] explain its reasoning, when the court does not do so, we may search the
record to determine if it supports the court’s discretionary decision.”).
¶15 The circuit court heard how the foster parents supported the
children’s relationships with their siblings. They invited Dina over to their house
multiple times and took Derek and Drew to meet their siblings at a restaurant.
Additionally, their foster mother stated that they had held a family feast, inviting
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Derek and Drew’s siblings to attend, and they intended to do so again. The foster
mother stated that future contact was “[a]bsolutely” the foster family’s intention.
There was no testimony or evidence in the record to suggest that severing Tracy’s
parental rights would be harmful to Derek’s and Drew’s relationships with their
siblings.
¶16 Tracy argues that the foster mother’s testimony regarding her desire
to continue contact with Derek and Drew’s siblings should not be considered
evidence that it would not be harmful to sever Tracy’s parental rights because “[a]
promise of continued contact ‘made today may be broken in the future.’” See
Margaret H., 234 Wis. 2d 606, ¶28. Tracy argues that instead, this court should
interpret the foster mother’s testimony to show that severing Tracy’s parental
rights would harm the emotional and psychological bonds between Derek, Drew,
and their siblings. We disagree.
¶17 While the circuit court is not required to rely on an adoptive parent’s
promises to continue contact with a child’s birth family, “[i]n its discretion, the
court may afford due weight to an adoptive parent’s stated intent to continue
visitation with family members.” Id., ¶29. Here, we can reasonably infer that the
court relied on the foster mother’s promises to continue contact. The court heard
that the foster parents had extensive training regarding traumatized children, had
been fostering children for over ten years, and that they believed it was important
for Derek and Drew to “have a biological connection” so that they would not
“struggle to find a place in the world.” Further, the court heard the various ways
that the foster parents maintained contact between Derek, Drew, and their siblings,
as well as their plans to host future family gatherings. Thus, the court did not
erroneously exercise its discretion under WIS. STAT. § 48.426(3)(c) when it
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ultimately found it in Derek’s and Drew’s best interests to terminate Tracy’s
parental rights.
¶18 Tracy argues that her case is like State v. Bolstad, 2021 WI App 81,
399 Wis. 2d 815, 967 N.W.2d 164, where this court concluded that the circuit
court had erroneously exercised its sentencing discretion by failing to consider a
mandatory statutory factor when sentencing the appellant. We disagree. Unlike
the court in Bolstad, the court here explicitly addressed the statutory factor of
whether Derek and Drew have substantial relationships with their parent or other
family members and whether it would be harmful to sever those relationships.
While the court focused its analysis on Derek’s and Drew’s relationships with
Tracy and Tracy’s family members, we can infer that the court relied on the foster
mother’s promises to continue contact between Derek, Drew, and their siblings.
The court could, therefore, reasonably find that termination of Tracy’s rights
would not be likely to harm Derek and Drew.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
9