State v. S. R.

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.
June 1, 2022
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 Nos.
2022AP293 Cir. Ct. Nos. 2019TP119
2019TP120
2022AP294 2019TP121
2022AP295
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
APPEAL NO. 2022AP293
IN RE THE TERMINATION OF PARENTAL RIGHTS TO R.J.R, A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S. R.,
RESPONDENT-APPELLANT.
Nos. 2022AP293
2022AP294
2022AP295
APPEAL NO. 2022AP294
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.G.R, A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S. R.,
RESPONDENT-APPELLANT.
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APPEAL NO. 2022AP295
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.G.R, A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S. R.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
¶1 WHITE, J.1 S.R. appeals the order terminating her parental rights to
her children, R.J.R.; J.G.R.; and A.G.R. She argues that the circuit court
erroneously exercised its discretion in concluding that it was in the best interests
of the children to terminate S.R.’s parental rights because there was no evidence
presented to the court of the foster parents’ adoptive intent by their own testimony
and there was no expert testimony to corroborate the family case manager’s
opinions about the children’s bonds with S.R. We reject S.R.’s arguments and,
accordingly, we affirm.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
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BACKGROUND
¶2 In July 2019, the State filed petitions to terminate S.R.’s parental
rights to R.J.R., born in July 2009; J.G.R., born in May 2013; and A.G.R., born in
May 2016.2 For grounds, the State alleged continuing CHIPS3 and failure to
assume parental responsibility. The children were removed from S.R.’s care in
August 2017 when she posted bail for A.A., her oldest child who was an adult
throughout these proceedings and who was arrested for sexually abusing J.G.R.,
and then she allowed him to live in the upper unit of the family duplex, which
allowed him access to her younger children. The petitions alleged that four of
S.R.’s five children had been sexually abused while in her custody and three of
them had sexually assaulted other children.4
¶3 The case proceeded to a five-day jury trial in April 2021. At the
trial, the State called a licensed psychologist who testified that she performed a
psychological evaluation of S.R. in July 2019, after which she concluded that S.R.
had “an unspecified neuro-psychological disorder.”
¶4 The State then called S.R., who testified about her children, her
understanding about what happened to J.G.R., and the sexual abuse conviction of
2
S.R.’s three children were subject to separate TPR actions that were tried together at
the circuit court and are consolidated on appeal. For ease of reading, we refer to the cases in the
singular.
3
“CHIPS is the commonly used acronym to denote the phrase ‘child in need of
protection or services’ as used in the Wisconsin Children’s Code, chapter 48, Stats.” Marinette
Cnty. v. Tammy C., 219 Wis. 2d 206, 209 n.1, 579 N.W.2d 635 (1998).
4
After the petitions were filed, S.R. gave birth to her sixth child, C.R.R., who is not a
subject of this action. Additionally, S.R.’s second oldest child, B.G.R., is an adult and is not a
subject of this action.
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A.A. S.R. stated that she was not aware of what A.A. was accused of doing to
J.G.R. until during A.A.’s trial and that she had been forbidden to discuss the
matter with J.G.R. She testified that she posted bail for A.A. subsequent to his
arrest, but she did not understand what he was charged with until the trial. She
testified that A.A. never lived in her house again after he was arrested. She
explained that A.A. moved in with her brother, and then into his own apartment.
Then, shortly thereafter, her brother died and she moved into the duplex where her
brother had lived. S.R. testified that she believed J.G.R.’s allegations, but
acknowledged that she thought J.G.R. was “just very creative” and that her
allegations were not of sexual abuse but instead J.G.R. complaining that A.A. used
a bathing sponge on a stick to clean her.
¶5 The State called the family case manager, who testified about the
children’s removal from S.R.’s care after J.G.R. alleged that A.A. put his penis in
her mouth and buttocks. During J.G.R.’s forensics interview, she stated that A.A.
inserted a “stick” into her mouth and buttocks, but through the use of dolls and
additional questions, J.G.R. stated A.A. used his penis in the assault, not an actual
stick of any kind. The family case manager stated that the initial assessment
worker put a safety plan in place for the children and determined that S.R.
admitted to allowing A.A. to live in the upstairs apartment in her home. She stated
that the details of J.G.R.’s allegations against A.A. were shared during the
temporary physical custody hearing, which occurred one to two days after the
children were removed and that S.R. attended with provided Spanish language
interpreters. She testified that S.R. maintained that J.G.R. was lying and that
J.G.R. needed to face her brother in court and testify. The family case manager
testified that one of the conditions for the children to be returned to S.R. was that
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she acknowledge that the sexual abuse had taken place. She also stated that S.R.
was repeatedly reminded not to call J.G.R. a liar during supervised visitation.
¶6 Then, S.R. called a parenting educator at the Sixteenth Street
Community Health Center, who testified that S.R. completed eight parent
education classes and received a certificate. The family case manager was then
recalled to the stand, who reviewed S.R.’s progress on the conditions of return of
the children. She discussed S.R. and the children’s separate participation in
therapy because the children’s therapists did not recommend family therapy. She
acknowledged S.R.’s completion of parenting classes. S.R. remained under an
order for supervised visitation and had four hours of visitation a week throughout
the duration of the case.
¶7 S.R. then called the director of the La Causa crisis nursery, which
provides care for children during traumatic situations, homelessness, domestic
violence, as well as smaller situations like doctor’s appointments, court hearings,
and medical emergencies. S.R. utilized the crisis nursery on multiple occasions.
In rebuttal, the State recalled the family case manager, who testified that in 2008
S.R. had been “forbidden to use their crisis nursery because [S.R.] had … taken
the children to the nursery and had been seen out at a nightclub and additionally
there were concerns that were listed that stated she was no longer allowed to use
the service.”
¶8 The jury found that grounds existed to terminate S.R.’s parental
rights to each of the children. After accepting the jury’s verdict, the circuit court
found S.R. to be an unfit parent.
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¶9 The case then moved to the dispositional phase, with hearings
conducted over two days in August 2021. The family case manager testified about
the children’s ages, health, and time out of S.R.’s care. S.R.’s daughters, J.G.R.
and A.G.R., were placed in the same foster care placement and had been in that
family’s care for over two years. The girls’ foster parents were approved as an
adoptive resource for the girls and expressed to the family case manager that they
wanted to adopt them. The family case manager observed the girls with their
foster parents and considered them well bonded.
¶10 The family case manager testified that R.J.R. was placed on a
separate foster placement and had been in his foster mother’s care for four years.
R.J.R.’s foster mother was a potential adoptive resource for him, although there
were concerns due to some concerning sexualized behaviors. R.J.R. required a
“very high level of supervision” because the foster mother had other grandchildren
and family members visiting her. R.J.R. has been in therapy focused on children
with sexualized behaviors including individual and group therapy. The family
case manager testified that R.J.R. expressed to her that he wished to stay with his
foster mother if he had that choice. The foster mother expressed to the family case
manager that if she were no longer an adoptive resource, she would be willing to
continue to provide foster care for R.J.R. until another resource was found.
¶11 The family case manager testified about some of R.J.R.’s recent
concerning behavior that led to his foster mother being uncertain about serving as
an adoptive resource. She stated that R.J.R. “sent a concerning text message to a
peer … in regard to him wanting to date a two year old toddler” in response to the
peer’s question about his “type.” Additionally, the family case manager testified
that upon learning about this text message, S.R. stated that she did not want R.J.R.
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to continue to come on supervised visitation with her and that he “would never be
allowed into her house.” This upset R.J.R. The family case manager testified that
while R.J.R. has a bond with his mother, she would not “call it substantial” and
she did not feel he would be harmed if the legal relationship were severed.
¶12 The family case manager described that both J.G.R. and A.G.R. had
some behaviors related to visits with S.R., with visit days being difficult. A.G.R.
consistently brought up wanting to stay with her foster parents and being
concerned she would have to leave. There had been “a couple of occasions where
after visits [J.G.R.] would come home distraught and be up screaming.” After the
trial in April, S.R. had been aggressive in her visits with the children. At a recent
visit, “[S.R.] asked [A.G.R.] again if she wanted to come live with her and
[A.G.R.] responded no and [S.R.] became upset and emotional … she ended the
visit early … grabbing [A.G.R.’s] arm and ripping a braid out of her hair.” A.G.R.
and J.G.R. have asked the family case manager if visits can be discontinued. She
also stated that similar to R.J.R., while the girls had a bond with S.R., it was not
substantial and they would not be harmed if the relationships were severed.
During cross-examination, the family case manager testified that the foster parents
were “willing and open to maintaining contact” if the girls desired to do so.
¶13 S.R. testified on her own behalf during the disposition phase.5 She
testified that the children were all very happy to see her during visits. She
5
S.R. attempted to argue that it was in the best interests of the children to remain with
her for immersion in their Hispanic heritage and culture. The circuit court concluded that without
expert testimony or evidence that the stability, community, safety, and schools would be better
for the children, the argument was irrelevant to the statutory factors the court considers in TPR
actions. The court stated that it did not believe the legislature wanted the court to consider where
the child lives or to limit where a child can live based on “race, creed, or religion.”
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explained that due to the Covid-19 pandemic, her visits with the children have
been virtual lately. S.R. stated that she tried to fix A.G.R.’s hair during their last
visit, but A.G.R. did not want her to do so and A.G.R. “expressed herself by
yelling and she was afraid”; S.R. stated she was not trying to be aggressive. She
stated that the three children were very close to each other and they are also very
attached to her youngest infant child.
¶14 The court then reviewed the situation and the required statutory
factors on the record.6 The court stated that “these children have been in out of
home care for a significant amount of time of their lives[.]” The court concluded
that the case was “floundering.” It questioned how S.R. could help A.G.R. and
6
In determining the best interests of the children in a TPR action, the circuit court must
consider at least the statutorily prescribed factors, although the court is not limited to only the
following:
(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.
WIS. STAT. § 48.426(3).
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J.G.R. through future trauma when she pushed away R.J.R., who was currently
struggling.
¶15 The court addressed the application of the six factors in WIS. STAT.
§ 48.426(3) for each child. A.G.R. had a “strong likelihood of adoption” if S.R.’s
rights were terminated. There was no barrier in her age or health. She was
removed from S.R.’s care at age two in 2017 and had spent the last two years with
her foster parents, who were an adoptive resource. While A.G.R. knew S.R., she
looked at her foster parents as “her parents.” The court concluded that while she
had a substantial relationship with J.G.R. and R.J.R., A.G.R. did not have a
substantial relationship otherwise with S.R. or with her extended maternal or
paternal family and severing the legal relationship with S.R. would not harm
A.G.R. As for wishes, the court noted that A.G.R. is a little young, but
recognizing where the child was cognitively, developmentally, and emotionally,
A.G.R. expressed never wanting to leave her foster parents and wanting to stay
with them at their home. The court noted that the duration of separation was four
years. The court concluded that A.G.R. would be more likely to be able to enter
into a more stable and permanent family relationship as result of the TPR.
¶16 For J.G.R., the court stated that the “likelihood of adoption if the
TPR is granted is very high[.]” There were no barriers to adoption from J.G.R.’s
age or health. She was removed from S.R.’s care at age four and she is now eight
years old. She has been with these foster parents for the past two years. The court
concluded there was “no bond and no evidence of a substantial parental
relationship with S.R.” Similar to its considerations about A.G.R., the court
concluded there was a relationship with R.J.R. and A.G.R., but severing the
relationship with S.R. would not harm J.G.R. As for the wishes of the children,
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J.G.R. expressed that she never wants to leave these foster parents. She has spent
a significant period of time out of S.R.’s care. The court concluded that J.G.R.
would be able to enter into a more stable and permanent family relationship as a
result of the TPR.
¶17 Discussing R.J.R., the court stated that the likelihood of adoption
was less clear with R.J.R’s current foster placement. However, the court stated he
is still an “adoptable child” and his foster parent was willing to be either an
adoptive resource or as a placement until he can be adopted. The court stated that
having R.J.R. be safe and being helped with appropriate services by the State
“may be a better thing [than] being taken care of by a parent who is not able to do
so in a safe way.” The court stated that he had some behavior issues that may be a
barrier to adoption, but he was getting help and getting healthier. The court stated
he has been out of S.R.’s care for four years and he was eight years old at removal.
For the same reasons that the court addressed for A.G.R. and J.G.R., it concluded
that R.J.R. did not have a substantial relationship with S.R. and it would not be
harmful to sever the legal relationship. The court stated that R.J.R. needed “time
away to heal himself with the help of others” and to “focus on himself.” As for
R.J.R.’s wishes, he expressed that he wanted to stay with his foster placement if
that is an option. He has been out of S.R.’s care for four years, which is “enough.”
The court concluded that he would be more able to enter into a more stable and
permanent family relationship as a result of the TPR. The circuit court concluded
that reunification with S.R. was not likely for any of the children, and that even if
R.J.R. remained a ward of the State, he was “safer and may be better.”
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¶18 The court stated it was satisfied by clear and convincing evidence
that the State has proven it would be in each child’s best interests to terminate
S.R.’s parental rights. The court signed the TPR orders for each child.
¶19 These consolidated appeals follow.
DISCUSSION
¶20 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). 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. This court “will
search the record for reasons to sustain the [circuit] court’s exercise of discretion.”
Lofthus v. Lofthus, 2004 WI App 65, ¶21, 270 Wis. 2d 515, 678 N.W.2d 393.
¶21 S.R. concedes that the circuit court considered the six required
statutory factors under WIS. STAT. § 48.426(3). “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.” State v
Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475. Here, the
record supports that the circuit court adequately considered each factor for each
child.
¶22 However, S.R. argues that the court’s conclusion that termination
was in the children’s best interests was unreasonable because there was no
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evidence introduced by and through a proposed adoptive resource for each child.
She contends that for the court to properly consider the “likelihood of adoption” it
would need to receive additional testimony from the foster parents themselves and
that the testimony of the family case manager was insufficient. Second, she
argues that the decision was unreasonable because there was no evidence to
support that the children would actually enter into a more stable family
relationship if the terminations were granted. Third, she argues that there was no
expert testimony presented to corroborate the family case manager’s testimony
that the children would be able to enter into a more stable and permanent family
relationship as a result of termination. She points out that there was no bonding
assessment or family study presented to the court. Finally, she asserts that her
ability to parent her youngest child without continued state intervention was proof
that she could provide familial stability and care to the other three children.
¶23 We reject S.R.’s arguments that ask us to conclude that the circuit
court’s considerations of the factors were inadequate or ill-founded. The State
responds that S.R. asks this court to elevate the consideration of statutory factors
one and six. We agree that it is not this court’s role to assign the weight of the
factors. See Margaret H., 234 Wis. 2d 606, ¶35. Instead, this court searches the
record to “sustain the [circuit] court’s exercise of discretion.” Lofthus, 270 Wis.
2d 515, ¶21. The record reflects dramatically different accounts of S.R.’s actions
and beliefs during the past four years. The court’s conclusions were drawn from
its factual findings. The court’s acknowledgment that R.J.R.’s situation had on-
going struggles did not diminish the adequacy of its findings. There is ample
evidence to support the court’s ultimate conclusion that the TPR was in the best
interests of the children.
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¶24 As for S.R.’s arguments based on the court needing to consider
additional evidence in the form of testimony by the foster parents or an expert
witness, we reject that such testimony is required under Wisconsin law.7 A foster
parent has a “right to be heard at a dispositional hearing” on a TPR action. WIS.
STAT. § 48.427(1m). “Any party may present evidence relevant to the issue of
disposition, including expert testimony, and may make alternative dispositional
recommendations to the court.” Sec. 48.427(1). Nevertheless, such testimony is
not required for the circuit court to reach a reasonable conclusion. S.R. fails to
develop these arguments with citation to relevant legal authorities. We decline to
review issues inadequately briefed. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).
7
S.R. concedes that it is not a categorical rule that the circuit court must hear from the
adoptive resource; however, she asserts that in this case the circuit court was unable to properly
exercise its discretion without such information. We disagree. Although the record is not
developed on this point, we note that during rebuttal in the closing argument for the dispositional
hearing, the State commented:
There is a discussion about the foster parent’s testimony, I would
hope that the [c]ourt will understand that I’m very cognizant of
the time we have and using or being efficient and I think that
[the family case manager] was able to provide the [c]ourt with an
idea about the commitment of the foster parents.… I would also
note that although it is related to the grounds phase paragraph 7
of [S.R.’s counsel’s] motion in limine asks to prohibit any foster
parent testimony in the grounds phase saying any relevant and
probative testimony that the foster parents may offer in this
matter could be provided through a stipulation between the
parties or another witness, which is exactly what we have done.
Although a motion in limine in the grounds phase would not bar testimony in the dispositional
phase, this comment provided context to the record. Recognizing that S.R.’s trial counsel may
have employed this motion in limine strategically, we will not conclude that the State’s failure to
present any foster parent testimony in this case was dispositive.
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¶25 As for SR’s argument that because R.J.R.’s adoptive resource was
uncertain at the time of disposition, the circuit court could not reasonably conclude
that R.J.R. would be more able to enter into a more stable and permanent family
relationship if the TPR were granted, the sixth statutory factor. “The decision
whether to terminate a parent’s rights to a child can be one of the most wrenching
and agonizing in the law.” Sheboygan Cnty. DHS v. Julie A.B., 2002 WI 95, ¶29,
255 Wis. 2d 170, 648 N.W.2d 402. Here, the record reflects that the circuit court
analyzed R.J.R.’s situation in sober reality. It analyzed that a child “being helped
and safe” and getting his needs met by the State would be in a better position than
a child “being taken care of by a parent who is not able to do so in a safe way.”
The court heard evidence that S.R. had not satisfied the conditions of return to be
reunited with R.J.R. and was unlikely to do so. Further, the court heard evidence
that after RJR’s concerning text message was discovered, S.R. did not want to see
R.J.R. and he “would never be allowed into her house.” The record reflects that
circuit court considered R.J.R.’s best interests, acknowledging that he may not be
adopted immediately but that his needs would not be met by continuing to
preserve SR’s parental rights. We discern no error in the court’s consideration of
the sixth factor of WIS. STAT. § 48.426(3) as it related to R.J.R.
¶26 Here, the circuit court found S.R. unfit after the jury found that
grounds existed for the TPR action. The court then conducted a dispositional
hearing to determine whether TPR is in the best interests of the child. “The court
should explain the basis for its disposition, on the record, by alluding specifically
to the factors in WIS. STAT. § 48.426(3) and any other factors that it relies upon in
reaching its decision. Julie A.B., 255 Wis. 2d 170, ¶30. The circuit court fulfilled
this requirement. It examined the relevant facts under the proper standards of law.
It explained its reasoning on the record and reached a decision a reasonable court
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could reach. Therefore, we conclude that the court’s decision was not an
erroneous exercise of discretion.
CONCLUSION
¶27 For the reasons stated above, we affirm the circuit court’s order
terminating S.R.’s parental rights to R.J.R., J.G.R., and A.G.R.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(b)4.
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