State v. S. S. M.

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.
August 2, 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.
2022AP524 Cir. Ct. Nos. 2020TP170
2020TP171
2022AP525
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.M., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S. S. M.,
RESPONDENT-APPELLANT.
Nos. 2022AP524
2022AP525
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.M., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S. S. M.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.
¶1 WHITE, J.1 S.S.M. appeals from the orders terminating her
parental rights to John and James.2 S.S.M. argues that WIS. STAT. § 48.415 is
unconstitutional both facially and as-applied to her cases because the law violates
equal protection by requiring the State to provide greater services and safeguards
when terminating parental rights to children subject to the Indian Child Welfare
Act (ICWA). Further, she argues that the circuit court erred in its consideration of
the sixth factor in the best interests of the child considerations for a termination of
parental rights (TPR) under WIS. STAT. § 48.426. Upon review, we reject
S.S.M.’s arguments and affirm the orders of termination.
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
We adopt pseudonyms for the children both for their privacy and because they share
the same initials. See WIS. STAT. § 809.19(1)(g).
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BACKGROUND
¶2 S.S.M. is the mother of seven children, Alice, born in October 2010,
Diana, born in October 2013, Don, born in November 2015, and twins John and
James, born in December 2017, Yvonne, born in November 2018, and Angela,
born in January 2021.3 When the twins were six weeks old, Department of
Milwaukee Child Protective Services (DMCPS) became involved when John
suffered bilateral skull fractures and torn upper labial frenulum. A protective plan
was put in place to ensure the children’s safety, and from February through June
2018, the children were placed with a maternal aunt under an order for temporary
physical custody. Don and Diana were placed in a different foster resource than
John and James, but all of the children were moved into non-family care in June
2018.
¶3 In August 2020, the State petitioned to terminate S.S.M.’s parental
rights to John, James, Don, and Diana on the grounds of continuing CHIPS,4 under
WIS. STAT. § 48.415(2), and failure to assume parental responsibility, under WIS.
STAT. § 48.415(6). In December 2020, S.S.M. filed a request to change the
children’s placement to her mother, F.M. DMCPS concurrently requested a
change of placement of Don and Diana to another foster placement. The change
of placement hearing was conducted over multiple days in February, March, May,
3
As asserted above, the children are all referred to by pseudonyms in accordance with
WIS. STAT. § 809.19(1)(g). Although Alice, Yvonne, and Angela are mentioned within the
record, none of them were subject to the TPR proceedings for John, James, Don, and Diana.
Hereinafter, “the children” refers to the four children named in the initial petitions.
4
“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).
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June, and August 2021, which coincided with the ultimate disposition of these
case on August 18, 2021.
¶4 In May 2021, S.S.M. filed a motion to dismiss on the basis of
constitutional equal protection violation arising out of the TPR grounds statute,
WIS. STAT. § 48.415. S.S.M. argued that she was denied equal protection under
the law because of the disparate impact the child welfare system has on African-
American families, which includes S.S.M., her mother, and her children. Relevant
here, she asserted that the court should apply the “active efforts” standard to her
case to guarantee the same level of services to her family as required under ICWA,
under WIS. STAT. § 48.028(4)(g). The court concluded that it did not have the
power to cure her alleged defect in the law upon which S.S.M.’s motion to dismiss
was based. It denied the motion to dismiss but stated that S.S.M. could make her
arguments after the jury trial on the grounds. A five-day jury trial on the petitions
for the four children was conducted before the circuit court in May 2021. The jury
returned verdicts findings grounds for the TPR for Diana, Don, John, and James
for both continuing CHIPS and failure to assume parental responsibility.
¶5 After the jury verdicts, the change of placement hearings resumed,
and the dispositional phase of the TPR proceedings occurred in May, June, and
August 2021. S.S.M. renewed her pretrial argument that her constitutional rights
of equal protection were violated; however, the court concluded that she failed to
prove a constitutional violation. During her case in chief, S.S.M. called an expert
witness who studied the historical trajectory of African-American families in
Milwaukee, including the impact of segregated residential patterns and
institutional challenges in public education, social welfare, and policing. He
testified about the social dynamics and “the importance of a healthy cultural
identity and its impact on young people.”
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¶6 On August 18, 2021, the circuit court decided both the disposition of
the four TPR petitions and the change of placement motions. The court granted
S.S.M.’s change of placement motion in part, ordering Don and Diana to be placed
with F.M. After making a record of its statutory considerations, the court ordered
the termination of S.S.M.’s parental rights to John and James.
¶7 S.S.M. appeals the termination of her parental rights to John and
James. The change of placement for Diana and Don is not appealed. Additional
facts are included within the discussion.
DISCUSSION
¶8 S.S.M. argues that the circuit court erred when it terminated her
parental rights to her twin sons for two reasons. First, she argues that the TPR
grounds statute, WIS. STAT. § 48.415, is unconstitutional because it violates equal
protection by providing a lower burden on the State to terminate her rights to her
children than it does to families subject to ICWA. Second, she argues that the
circuit court failed to consider the best interests of the children in the sixth
statutory factor by failing to explain how the TPR would allow them to enter into a
more stable and permanent family relationship.
I. Waiver of constitutional challenge
¶9 As a threshold matter, the State argues that S.S.M. failed to comply
with the timelines of WIS. STAT. § 48.297; therefore, her constitutional challenge
is waived. Section 48.297 provides that:
Defenses and objections based on defects in the institution
of proceedings, lack of probable cause on the face of the
petition, insufficiency of the petition or invalidity in whole
or in part of the statute on which the petition is founded
shall be raised not later than 10 days after the plea hearing
5
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or be deemed waived. Other motions capable of
determination without trial may be brought any time before
trial.
It is undisputed that S.S.M.’s constitutional challenge was made more than ten
days after the plea hearing. However, S.S.M. argues that the motion was not
challenging the statute “on which the petition [was] founded” because she did not
challenge the statutes that control the filing of a TPR petition, either WIS. STAT.
§§ 48.42 or 48.417. Further, she contends that this constitutional challenge is a
motion “capable of determination without trial” and it was properly raised prior to
trial. We agree with S.S.M.’s position and conclude that she has not waived this
argument.5
II. Constitutional challenge to WIS. STAT. § 48.415
¶10 We turn to S.S.M.’s constitutional challenge. S.S.M. asserts that her
rights to equal protection under the law were violated because in order to prove the
grounds for an involuntary TPR, the State has an additional burden for families
subject to ICWA that it did not need to meet for S.S.M.’s case or for any non-
Indian family. WISCONSIN STAT. § 48.415 sets forth multiple grounds as basis for
an involuntary TPR. It also provides in its introduction that:
If the child is an Indian child, the court or jury shall also
determine at the fact-finding hearing whether continued
custody of the Indian child by the Indian child’s parent or
Indian custodian is likely to result in serious emotional or
physical damage to the Indian child under
5
Although the State argues that S.S.M. has waived her constitutional challenge by not
filing it within the ten-day deadline, it does not refute her argument that challenging WIS. STAT.
§ 48.415 is not a statute on which the petition was founded, implicating WIS. STAT. § 48.297(2).
Therefore, we construe the State’s failure to refute this argument as a concession. See United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578(concluding that a lack of response by a party may be taken as a concession).
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s. 48.028 (4) (e) 1. and whether active efforts under
s. 48.028 (4) (e) 2. have been made to prevent the breakup
of the Indian child’s family and whether those efforts have
proved unsuccessful, unless partial summary judgment on
the grounds for termination of parental rights is granted, in
which case the court shall make those determinations at the
dispositional hearing.
S.S.M. was found unfit on two grounds: (2) continuing CHIPS;6 and (6) failure to
assume parental responsibility.7
¶11 The interpretation of WIS. STAT. § 48.415 and the application of that
statue to a given set of facts are questions of law that we review independently.
6
Continuing CHIPS can be established by proving that “the child has been adjudged to
be a child … in need of protection or services and placed, or continued in a placement, outside his
or her home pursuant” to a relevant court orders. WIS. STAT. § 48.415(2)(a)1. Further, “the
agency responsible for the care of the child and the family … has made a reasonable effort to
provide the services ordered by the court.” § 48.415(2)(a)2.b. Reasonable effort is defined as “an
earnest and conscientious effort to take good faith steps to provide the services ordered by the
court which takes into consideration the characteristics of the parent or child … the level of
cooperation of the parent … and other relevant circumstances of the case.” § 48.415(2)(a)2.a.
Additionally, the child was “placed outside the home for a cumulative total period of [six] months
or longer pursuant to [a statutory order;] 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 [fifteen] of the most recent [twenty-two] 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 [fifteen] of the most recent [twenty-two] months…”
§ 48.415(2)(a)3.
Alternately, the continuing CHIPS ground may be proven if on three or more occasions a
CHIPS action has been adjudicated for the child, that the child was placed in out-of-home care
pursuant to a court order for those adjudications with proper statutory notice, and that the parent
caused the condition that led to the child being placed in out-of-home care. WIS. STAT.
§ 48.415(2)(am).
7
Failure to assume parental responsibility is “established by proving that the parent …
have not had a substantial parental relationship with the child.” WIS. STAT. § 48.415(6)(a). A
“‘substantial parental relationship’ means the acceptance and exercise of significant responsibility
for the daily supervision, education, protection and care of the child.” § 48.415(6)(b). In
evaluating this ground, the court may consider factors including “whether the person has
expressed concern for or interest in the support, care or well-being of the child, [or] whether the
person has neglected or refused to provide care or support for the child[.]” Id.
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Tammy W.-G. v. Jacob T., 2011 WI 30, ¶16, 333 Wis. 2d 273, 797 N.W.2d 854.
“Whether a statute and the application of a statute are constitutional are also
questions of law that we review independently.” Id. When we review a statute,
we presume it is constitutional. Winnebago Cnty. v. Christopher S., 2016 WI 1,
¶33, 366 Wis. 2d 1, 878 N.W.2d 109. To overcome that presumption, a party
challenging the constitutionality of a statute must “prove that the statute is
unconstitutional beyond a reasonable doubt.” State v. Cole, 2003 WI 112, ¶11,
264 Wis. 2d 520, 665 N.W.2d 328.
¶12 A party may challenge a statute as “unconstitutional on its face” or
as-applied to the specific facts of the case. State v. Wood, 2010 WI 17, ¶13, 323
Wis. 2d 321, 780 N.W.2d 63. To succeed on a facial challenge, a party must show
that the law cannot be enforced under any circumstances. Christopher S., 366
Wis. 2d 1, ¶34. “If a statute is unconstitutional on its face, any action premised
upon that statute fails to present any civil or criminal matter in the first instance.”
State v Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699 N.W.2d 80, holding
modified by City of Eau Claire v. Booth, 2016 WI 65, ¶17, 370 Wis. 2d 595, 882
N.W.2d 738. “In contrast, in an as-applied challenge, we assess the merits of the
challenge by considering the facts of the particular case in front of us[.]” Wood,
323 Wis. 2d 321, ¶13.
¶13 S.S.M. makes both a facial and as-applied constitutional challenge to
WIS. STAT. § 48.415. She argues that WIS. STAT. § 48.415 provides Indian parents
with greater protection from having their parental rights involuntarily terminated
than it does non-Indian parents. We conclude that S.S.M.’s argument fails
because she cannot show that she or other non-Indian parents are similarly situated
to a parent whose child is subject to ICWA. Therefore, her right to equal
protection under this law has not been violated.
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A. Facial constitutional challenge
¶14 The Fourteenth Amendment guarantees individuals equal protection
under the law. U.S. CONST. amend. XIV, § 1. The same protection is provided in
the Wisconsin Constitution and we generally interpret these rights in the same way
in the state and federal constitution. WIS. CONST. art. 1, § 1; Milwaukee Cnty v.
Mary F.-R., 2013 WI 92, ¶10, 351 Wis. 2d 273, 839 N.W.2d 581. To prove that a
statute violates constitutional rights to equal protection, the challenger must show
that “the [S]tate unconstitutionally treats members of similarly situated classes
differently.” State v West, 2011 WI 83, ¶90, 336 Wis. 2d 578, 800 N.W.2d 929(citation omitted). Although identical treatment is not required, the State’s
discretion to create classifications must have a reasonable and practical basis.
State v. Smith, 2010 WI 16, ¶15, 323 Wis. 2d 377, 780 N.W.2d 90.
¶15 We begin with the law at issue. The Indian Child Welfare Act
(ICWA) of 1978 is a federal law designed to:
[P]rotect the best interests of Indian children and to
promote the stability and security of Indian tribes and
families by the establishment of minimum Federal
standards for the removal of Indian children from their
families and the placement of such children in foster or
adoptive homes which will reflect the unique values of
Indian culture, and by providing for assistance to Indian
tribes in the operation of child and family service programs.
ICWA, 25 U.S.C. § 1902 (2018). Wisconsin codified the requirements for Indian
child welfare at WIS. STAT. § 48.028. That statute provides detailed procedure
governing Indian children in custody proceedings as well as providing that the
federal ICWA supersedes the Wisconsin children’s code, ch. 48, “in any Indian
child custody proceeding governed by that act[.]” § 48.028(10). However,
“ICWA requires the use of state law whenever that state law provides a higher
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standard of protection than is mandated by the ICWA[.]” I.P. v State, 166 Wis. 2d
464, 473, 480 N.W.2d 234 (1992).
¶16 Relevant to this analysis, “active efforts” are set forth in Wisconsin’s
ICWA as “an ongoing, vigorous, and concerted level of case work” taking into
account nine activities, most of which connect the Indian child with tribal
resources. WIS. STAT. § 48.028(4)(g)1.
The active efforts were made in a manner that takes into
account the prevailing social and cultural values,
conditions, and way of life of the Indian child’s tribe and
that utilizes the available resources of the Indian child’s
tribe, tribal and other Indian child welfare agencies,
extended family members of the Indian child, other
individual Indian caregivers, and other culturally
appropriate service providers.
Id. In an involuntary TPR subject to ICWA, the State must prove active efforts
were made regardless of the ground under WIS. STAT. § 48.415.
¶17 ICWA’s application is dependent on the status of the child and not
the parent. An Indian child is “any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe[.]” ICWA,
25 U.S.C. § 1903(4).
¶18 S.S.M. argues that she meets the basic threshold for an equal
protection claim because she contends that all parents in a TPR proceeding are
similarly situated because they are parents and they face the involuntary
termination of their parental rights. We disagree that the two classes of parents are
similarly situated. As the State points out, ICWA arises out of the child’s status
under the law. Children not subject to ICWA do not have a connection to a tribe.
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Therefore, there is a distinct difference between parents in TPR proceedings for an
Indian child or a non-Indian child.
¶19 Embedded in the “active efforts” requirements in WIS. STAT.
§ 48.028(4)(g) is access to tribal resources and services, for which there is no
equivalent for non-Indian children. Reviewing the active effort activities proves
this point.8 A representative from a child’s tribe evaluates the Indian child’s
family circumstances in light of “prevailing social and cultural standards and
child-rearing practice within the tribal community” and assists in “developing a
case plan that uses the resources of the tribe and of the Indian community,
including traditional and customary support, actions, and services, to address those
circumstances.” WIS. STAT. § 48.028(4)(g)1.a. Representatives from the child’s
tribe must be invited to participate in all aspects of the custody proceeding and
their advice actively solicited. § 48.028(4)(g)1.b. Extended family members of
the Indian child must be notified and consulted to support the family and “to
assure cultural connections.” § 48.028(4)(g)1.c. Culturally appropriate family
preservation strategies must be offered. § 48.028(4)(g)1.e. For a non-Indian
family, there is no similar structure for the State to coordinate with for non-Indian
children “to assure cultural connections” because for an Indian child subject to
ICWA, the culture connection is tied to tribal membership or affiliation.
¶20 The United States Supreme Court has set forth repeatedly and
clearly that legislation related to “Indians as such, is not based upon impermissible
8
We recognize that some active efforts activities might not depend on tribal
involvement—such as a comprehensive assessment, visitation with transportation, community
resources and services, and monitoring of the parent’s progress. See WIS. STAT.
§ 48.028(4)(g)1.am., d., f., g. That does not negate that the recurring tribal involvement is
embedded in the active efforts standard.
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racial classifications. Quite the contrary, classifications expressly singling out
Indian tribes as subjects of legislation are expressly provided for in the
Constitution and supported by the ensuing history of the Federal Government’s
relations with Indians.” United States v. Antelope, 430 U.S. 641, 645 (1977)
(footnote omitted).9 ICWA provides heightened safeguards for Indian children in
recognition of the special relationship between the United States and American
Indian nations. ICWA sets forth its rationale as follows:
(1) … Congress has plenary power over Indian affairs;
(2) that Congress … has assumed the responsibility for the
protection and preservation of Indian tribes and their
resources;
(3) that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as
trustee, in protecting Indian children who are members of
or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families
are broken up by the removal, often unwarranted, of their
children from them by nontribal public and private agencies
and that an alarmingly high percentage of such children are
placed in non-Indian foster and adoptive homes and
institutions; and
9
The United States Supreme Court explained:
Literally every piece of legislation dealing with Indian tribes and
reservations … single out for special treatment a constituency of
tribal Indians living on or near reservations. If these laws,
derived from historical relationships and explicitly designed to
help only Indians, were deemed invidious racial discrimination,
an entire Title of the United States Code (25 U.S.C.) would be
effectively erased and the solemn commitment of the
Government toward the Indians would be jeopardized.
Morton v. Mancari, 417 U.S. 535, 552 (1974).
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(5) that the States, exercising their recognized jurisdiction
over Indian child custody proceedings through
administrative and judicial bodies, have often failed to
recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian
communities and families.
ICWA, 25 U.S.C. § 1901 (footnotes omitted).
¶21 The class of parents in a TPR proceeding with a child subject to
ICWA and the class of parents in a TPR proceeding with a child not subject to
ICWA are fundamentally different. The Indian child’s status is derived from its
connection to tribal membership, which is considered a political relationship.
Accordingly, the two classes of parents are not similarly situated for purposes of
equal protection and S.S.M. has failed to rebut the constitutionality of WIS. STAT.
§ 48.415 on its face.10
¶22 Additionally, S.S.M. asserts there is no basis for not requiring
“active efforts” for all TPR cases. She contends that the State would still fulfill its
compelling interest in protecting children from unfit parents if it used the active
efforts standard for all families. S.S.M. asserts that the more rigorous standard for
10
To the extent that S.S.M. argues that ICWA’s heightened safeguards for Indian
children violate equal protection, we note that this argument has been rejected in multiple
jurisdictions across the country. See e.g. In re A.A., 38 Kan. App. 2d 1100, 1104, 176 P.3d 237(Kan. Ct. App. 2008); State of Nebraska v. Sonya L., 270 Neb. 870, 884, 708 N.W.2d 786(2006), disapproved of on other grounds in State of Nebraska v. Wendy A., 274 Neb. 713, 742
N.W.2d 758 (2007); Ruby A. v. State of Alaska, Dept. of Health & Soc. Servs., No. S-10921,
2003 WL 23018276, unpublished slip op. (Alaska Dec. 29, 2003); Knight v State of Oklahoma,
1998 OK CIV APP 118, 964 P.2d 241; Angus v. Joseph, 60 Or. Ct. App. 546, 655 P.2d 208(1982). Our examination did not show any state that reached a contrary outcome. The Fifth
Circuit recently concluded that ICWA did not violate equal protection guarantees in a fractured
decision. See Brackeen v. Haaland, 994 F.3d 249, 334, 345 (5th Cir. 2021), cert. granted sub
nom. Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and
cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205, (2022), and cert. granted 142 S. Ct.
1205 (2022).
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“active efforts” will make the State more involved in the parent’s life and provide
a better position to monitor a child’s safety from an unfit parent. S.S.M. ignores
the role that tribal representatives play in the “active efforts” activities set forth in
WIS. STAT. § 48.028(4)(g). S.S.M. fails to provide legal authority or reasoning for
a basis to expand active efforts to children without a tribal affiliation. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline
to review issues inadequately briefed.”).
B. As-applied constitutional challenge to WIS. STAT. § 48.415
¶23 We next turn to S.S.M.’s argument that WIS. STAT. § 48.415 was
unconstitutional on equal protection grounds as-applied to her. “[I]n as-applied
challenges, ‘[w]hile we presume a statute is constitutional, we do not presume that
the State applies statutes in a constitutional manner.’” Tammy W.-G., 333 Wis. 2d
273, ¶48 (citation omitted).
¶24 S.S.M. argues that because she and her family are African-American
and not Indian, the State was not required to meet the heightened safeguards for
families subject to ICWA. Therefore, the State only had to prove the grounds
under WIS. STAT. § 48.415(2) and (6) and the jury did not have to decide whether
the State made “active efforts” to provide services to S.S.M. and her children.
S.S.M. raises serious concerns about inequities for African-American children and
families within the child welfare system and whether more families would succeed
at reunification with active efforts being provided to them. However, to the extent
that S.S.M. argues that parents facing TPR actions are treated differently because
of their race, the classification of Indian children is not race-based and does not
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violate equal protection.11 See Morton v. Mancari, 417 U.S. 535, 553 (1974).
“As long as the special treatment can be tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians, such legislative judgments will
not be disturbed.” Id. at 555. The heightened safeguards for children subject to
ICWA is rationally tied to the federal policy preserving Indian families. We
conclude that WIS. STAT. § 48.415 is not unconstitutional because families become
subject to ICWA “not as a discrete racial group, but, rather, as members of quasi-
sovereign tribal entities.” Id. at 554.
¶25 S.S.M.’s arguments simply go beyond a constitutional challenge.
The failures that S.S.M. identifies in the social welfare system with regard to
African-American families require legislative and not judicial action. S.S.M. also
fails to explain who or what would fulfill the intrinsic and necessary role of the
tribe within ICWA for non-Indian children. As discussed above, active efforts
rely heavily on tribal involvement. S.S.M.’s children’s lack of connection to a
tribal authority is a fundamental difference between her cases and those involving
a child subject to ICWA. S.S.M. was not similarly situated to a parent of a child
subject to ICWA facing TPR proceedings; accordingly, she fails to show an equal
protection violation in her as-applied challenge.12 We conclude that WIS. STAT.
§ 48.415 was constitutional as applied to S.S.M.
11
We note that S.S.M. did not make a racial classification argument in her facial
constitutional challenge, instead analyzing it within her as-applied challenge.
12
Further, SSM argues that she has a fundamental liberty interest in parenting her
children. “[A] liberty interest protected by the Due Process Clause arises only when biological
parents have taken sufficient steps to establish and protect those rights.” Tammy W.-G. v.
Jacob T., 2011 WI 30, ¶60, 333 Wis. 2d 273, 797 N.W.2d 854. S.S.M. fails to develop an
argument about how she protected those rights or how her rights were infringed upon by Wis.
Stat. § 48.415. We decline to address undeveloped arguments. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992).
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III. Best interest of the child factors in a TPR disposition.
¶26 Finally, we turn to S.S.M.’s argument that the circuit court
erroneously exercised its discretion when it terminated her parental rights to John
and James. 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.
¶27 We return to the facts. On August 18, 2021, the circuit court
decided both the disposition of the four TPR petitions and the change of placement
motions. The court began noting that “the role of [F.M.] in this case has not really
been accurately evaluated” and that misconceptions about F.M.’s protective
capacity were embedded in the case. The court stated that Diana and Don’s
current foster placement was not an adoptive resource, and that while DMCPS had
identified a new placement that was an adoptive resource, “the kids … are
certainly no more bonded with [the proposed foster placement] than they are with
[F.M.] They’ve known [F.M.] their whole lives.” The court granted S.S.M.’s
change of placement motion in part, ordering Don and Diana to be placed with
F.M.
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¶28 In contrast, the court concluded it would grant the TPR for John and
James and made an oral and written ruling discussing the required statutory
considerations.13 The court considered that the twins would likely be adopted by
their foster mother and that their three-year-old age and good physical health were
not barriers to adoption. The court stated it was hard to judge the substantial
relationship of the twins with S.S.M. or her family, but that severing the bonds
would not harm the twins. The court acknowledged that the foster mother’s
willingness to maintain family relationships could mitigate harm. The court stated
that at three-years-old, the twins were too young to understand adoption and
express their wishes, but the bonding the twins showed with their foster mother
supported that they would want to stay in the only home they have known. The
court noted that the duration of separation has been nearly their entire lives
13
WISCONSIN STAT. § 48.426 sets forth the court’s considerations when deciding a
disposition of a TPR petition. “The best interests of the child shall be the prevailing factor
considered by the court in determining the disposition of all proceedings…” Sec. 48.426(2).
“In considering the best interests of the child under this section the court shall consider
but not be limited to 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.
Sec. 48.426(3).
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because they have been in out-of-home care since they were each six-weeks-old.
Finally, the court concluded that the children would be able to enter into more
stable and permanent family arrangements as a result of the termination.
¶29 S.S.M. argues that the circuit court’s error in discretion arose in its
consideration of the sixth factor, which requires the circuit court to consider
“[w]hether the child will be able to enter into a more stable and permanent family
relationship as a result of the termination…” WIS. STAT. § 48.426(3)(f).14 She
argues that the court did not explain why terminating her rights to John and James
would allow them to enter into a more stable living situation when the court
concurrently concluded that termination was not in Diana and Don’s best interests.
She contends that placing John and James with F.M. could provide similar
stability and that the circuit court failed to explain why it would not. “Adequate
findings must be made in order to protect the rights of litigants and to facilitate
review of the record by an appellate court.” Minguey v. Brookens, 100 Wis. 2d
681, 687, 303 N.W.2d 581 (1981).
¶30 We conclude that the court’s findings were adequate to support its
decision to terminate S.S.M.’s parental rights to John and James, even in light of
the court not terminating her rights to Diana and Don. The record reflects the
importance the court placed on the continued stability for John and James if the
TPR were granted. The twins had been in the same foster placement for the vast
majority of their lives and their foster mother wanted to adopt them. The court
14
We do not interpret S.S.M. to dispute the circuit court’s considerations of the first
through fifth factors. “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. Our
review of the record supports that the circuit court addressed all six factors, on the record.
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expressed hope that “more stable and permanent family relationship,” would help
with some behaviors the twins had exhibited. The court’s concern for “stability
and permanence” also came through when it concluded that the need for stability
outweighed any harm from severing S.S.M.’s parental rights.
¶31 “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. Although it may
frustrate S.S.M. that Diana and Don’s dispositional findings were different than
John and James’s dispositional findings, the record reflects the circuit court
considered the best interests of each child. Its reasoning for Diana and Don
differed than its reasoning for John and James due to their individual histories in
out-of-home care. The circuit court highlighted the bond that existed between the
twins and their foster mother, which included that the twins could not remember
any other home than their foster mother’s, and they called her “mama.” In
contrast, Diana and Don had known F.M. their entire lives and were not bonded
with the proposed foster placement. The court stated that it thought Don and
Diana would wish to “remain in this extended family” with F.M., but that might
have been “different if they were like the twins who are bonded to their [foster
mother.]”
¶32 We conclude that the circuit court considered the relevant facts of
each child’s history and circumstances, applied the proper standard of law, and
demonstrated a rational decision-making process to reach a conclusion that a
reasonable court could reach. See Mable K., 346 Wis. 2d 396, ¶39. Therefore, the
circuit court did not erroneously exercise its discretion when it terminated
S.S.M.’s parental rights to John and James.
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CONCLUSION
¶33 For the reasons stated above, we conclude that S.S.M. has failed to
show that WIS. STAT. § 48.415 is unconstitutional either facially and as-applied.
Further, the circuit court’s exercise of discretion was not erroneous when it found
termination of S.S.M.’s parental rights was in the best interests of John and James.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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