State v. M.S.H.

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 No. 2022AP369 Cir. Ct. No. 2020TP95
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.M.H., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
M.S.H.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Reversed and cause remanded with directions.
No. 2022AP369
¶1 DONALD, P.J.1 M.S.H. appeals the order of the circuit court
terminating her parental rights to her daughter, A.M.H. M.S.H. contends that the
circuit court erroneously exercised its discretion at the dispositional hearing when
it found that it was in A.M.H.’s best interests to terminate M.S.H.’s parental rights.
As discussed below, we reverse and remand for a hearing regarding whether
M.S.H. was entitled to the disclosure of the prospective adoptive resource’s
identity.
BACKGROUND
¶2 On April 28, 2020, the State filed a petition to terminate M.S.H.’s
parental rights to A.M.H.2 The petition alleged that A.M.H. was a child in
continuing need of protection or services (continuing CHIPS) and that M.S.H. had
failed to assume parental responsibility.
¶3 Prior to trial, the State served interrogatories and requests for
admissions upon M.S.H. M.S.H. failed to answer the discovery requests. As a
result, the State filed a motion for admissions to be deemed admitted and a motion
for partial summary judgment with respect to the continuing CHIPS ground. The
circuit court granted the motions. Based on the summary judgment finding, the
circuit court made a finding of unfitness.
¶4 At the start of the dispositional hearing, the circuit court stated that
there was a sidebar where just the lawyers were present. The court indicated that
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.
2
A.M.H.’s biological father is unknown.
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No. 2022AP369
the State wanted to treat the prospective adoptive resource as undisclosed. The
State explained that the prior placement had been undisclosed and there had been
issues in the past regarding M.S.H. and the placements. According to the State,
M.S.H. had caused “disruptions” to prior placements. Over the objection of
M.S.H., the circuit court granted the State’s request.
¶5 The State then presented the testimony of M.S.H.’s case manager,
C.B. Relevant to this appeal, C.B. testified that A.M.H.’s current placement was
not an adoptive resource, but that there was an undisclosed prospective adoptive
resource. According to C.B., the undisclosed prospective adoptive resource had
expressed a desire to adopt A.M.H. and was licensed to adopt. C.B. further
testified that the resource was aware of A.M.H.’s needs and the services she
requires.3 C.B. also testified that if the resource was not able to adopt, A.M.H.
was otherwise an adoptable child. The State did not present any other witnesses.
¶6 After M.S.H. testified on her behalf, the circuit court found that it
was in A.M.H.’s best interests to terminate M.S.H.’s parental rights. This appeal
follows. Additional relevant facts will be referenced below.
DISCUSSION
¶7 On appeal, M.S.H. contends that the circuit court erroneously
exercised its discretion at the dispositional hearing when it found that it was in
A.M.H.’s best interests to terminate M.S.H.’s parental rights. In support, M.S.H.
argues that her rights should not have been terminated in the absence of any
3
A.M.H. has needs related to posttraumatic stress disorder and trauma history.
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No. 2022AP369
testimony from the prospective adoptive resource, and the lack of information
regarding the prospective adoptive resource.
¶8 A circuit court’s decision will be upheld if there is a proper exercise
of discretion. See State v. Margaret H., 2000 WI 42, ¶32, 234 Wis. 2d 606, 610
N.W.2d 475. “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.
¶9 We turn first to whether the identity of the prospective adoptive
resource should have been disclosed. M.S.H. and the State agree that the
disclosure of the identity of the prospective adoptive resource is governed by WIS.
STAT. § 48.355(2)(b)2. This statute provides:
If the child is placed outside the home, the name of the
place or facility, including transitional placements, where
the child will be cared for or treated, except that if the
placement is a foster home and if the name and address of
the foster parent is not available at the time of the order, the
name and address of the foster parent shall be furnished to
the court and the parent within 21 days after the order. If,
after a hearing on the issue with due notice to the parent or
guardian, the judge finds that disclosure of the identity of
the foster parent would result in imminent danger to the
child or the foster parent, the judge may order the name
and address of the prospective foster parents to be withheld
from the parent or guardian.
(Emphasis added.)
¶10 Here, in granting the State’s request to conceal the identity of the
prospective adoptive resource, the circuit court stated:
I am certainly aware of the history in this case of the
disruptive behavior with placements and the prior
placement or current placement I should say is undisclosed
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No. 2022AP369
and so I will grant the State’s request that that continue to
be the case.
¶11 As M.S.H. observes, the circuit court did not make any findings on
the record regarding whether disclosure “would result in imminent danger to the
child or the foster parent” as required by WIS. STAT. § 48.355(2)(b)2. Moreover,
we note that neither the State in its request nor the circuit court in its decision
indicated on the record what the “disruptive behavior” entailed.
¶12 Accordingly, we reverse and remand for a new hearing regarding
whether the identity of the prospective adoptive resource should be disclosed, and
based on the circuit court’s findings, whether M.S.H. is entitled to a new
dispositional hearing to question the resource or otherwise present evidence
relating to the resource.4
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
4
Because we are reversing and remanding for a hearing regarding whether the identity of
the prospective adoptive resource should be disclosed, we do not address M.S.H.’s other
arguments which include that the State’s request for nondisclosure of the prospective adoptive
resource at the start of the dispositional hearing did not constitute “due notice,” see WIS. STAT.
§ 48.355(2)(b)2., or whether the circuit court could properly consider the likelihood of adoption
or whether the child could enter into a more stable and permanent home, see WIS. STAT.
§ 48.426(3)(a), (f), in the absence of testimony from the prospective adoptive resource. See State
v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that appellate courts
should decide cases on the narrowest possible ground).
5