State v. S.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.
April 19, 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. 2022AP160 Cir. Ct. No. 2019TP205

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF D.O., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.J.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.
No. 2022AP160

¶1 DUGAN, J.1 Sharon appeals from an order of the circuit court
terminating her parental rights to her daughter, Danielle.2 On appeal, Sharon
argues that the circuit court failed to “sufficiently consider” whether the
relationship she had with her daughter would cause her daughter harm once
Sharon’s parental rights were terminated and the relationship severed. This court
concludes that the circuit court properly exercised its discretion and appropriately
considered the relationship between Sharon and her daughter and any
consequences of severing that relationship. Accordingly, for the reasons set forth
below, this court affirms.

BACKGROUND

¶2 The State filed a petition to terminate Sharon’s parental rights to her
daughter on October 17, 2019.3 The petition alleged that Sharon failed to assume
parental responsibility and that Danielle was a child in continuing need of
protection or services. The petition described that Sharon had a history of
“impulsive” and “out of control” behavior that led to multiple criminal charges
and left Danielle with relatives for long periods of time without basic necessities
or clean clothes. The petition also described that Sharon had a history of being
homeless and unemployed.

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
For ease of reference, we use pseudonyms to refer to the individuals involved in these
confidential proceedings.
3
The State also petitioned to terminate the rights of Danielle’s father. The father’s rights
are not at issue in this appeal.

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No. 2022AP160

¶3 Sharon entered a plea of no contest and was consequently found to
be an unfit parent. The circuit court continued to the dispositional hearing and
took testimony from Danielle’s paternal aunt, Danielle’s case supervisor, and
Sharon.

¶4 Danielle’s aunt and the case supervisor testified that Danielle had
been living outside of the parental home since 2017 when Danielle was
approximately four years old and that Danielle had been living with her aunt since
2019. Both Danielle’s aunt and the case supervisor testified that Danielle’s health
and well being had improved since she was removed from Sharon’s care and, in
particular, when Danielle began living with her aunt. Danielle’s aunt testified that
Danielle has a bond with her, called her “TT,”4 and knows her as her aunt. She
further testified that Danielle knew Sharon was her mother, and the case
supervisor also testified that Danielle, who was now eight years old, was aware of
who her parents were. Danielle’s aunt and the case supervisor further described
that Danielle continued to have phone contact with Sharon, but described that
Danielle was emotional after contact with her mother. Both also testified that
Danielle looked to her aunt, not Sharon, for daily care and security, and testified
that Danielle had grown to feel that her placement with her aunt was her home.

¶5 When Sharon testified, she described that she kept in contact with
Danielle and that they had a relationship with one another. Sharon testified to
drawings and other items that she had exchanged with Danielle since her
incarceration and explained that they have a good relationship.

4
Danielle’s aunt testified that “TT” refers to aunty.

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No. 2022AP160

¶6 At the end of the hearing, the circuit court recognized that this was
“a really hard case” and weighed the factors found in WIS. STAT. § 48.426(3).
Ultimately, the circuit court found that it was in Danielle’s best interests to
terminate Sharon’s parental rights. Sharon now appeals.

DISCUSSION

¶7 “Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271
Wis. 2d 1, 678 N.W.2d 856. In the first phase, called the “grounds” phase, “the
petitioner must prove by clear and convincing evidence” that at least one of the
twelve grounds enumerated in WIS. STAT. § 48.415 exists. Steven V., 271
Wis. 2d 1, ¶¶24-25; see also WIS. STAT. § 48.31(1). In the second phase, often
referred to as the “dispositional phase,” the court must decide if it is in the child’s
best interest that “the parent’s rights be permanently extinguished.” Steven V.,
271 Wis. 2d 1, ¶¶26-27; see also WIS. STAT. § 48.426(2). Sharon’s appeal
requires this court to review the second phase of the proceedings.

¶8 “At the dispositional hearing, the court must consider any agency
report submitted and the six factors enumerated in [WIS. STAT.] § 48.426(3) in
determining the best interests of the child.” Sheboygan Cnty. DHHS v. Julie
A.B., 2002 WI 95, ¶4, 255 Wis. 2d 170, 648 N.W.2d 402. “The court may also
consider other factors, including factors favorable to the parent; but all factors
relied upon must be calibrated to the prevailing standard: the best interests of the
child.” Id. The factors listed under § 48.426(3) are:

(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.

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No. 2022AP160

(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.

¶9 This court will uphold the circuit court’s decision to terminate
parental rights “if there is a proper exercise of discretion.” State v. Margaret H.,
2000 WI 42, ¶32, 234 Wis. 2d 606, 610 N.W.2d 475. “A proper exercise of
discretion requires the circuit court to apply the correct standard of law to the facts
at hand.” Id. As noted, in making its determination, “the best interests of the
child is the paramount consideration” for the circuit court. Id., ¶33.

¶10 Sharon concedes that the circuit court properly considered all the
factors of WIS. STAT. § 48.426(3) with the exception of the third factor, namely
whether Danielle had a substantial relationship with Sharon and whether it would
be harmful to Danielle to sever that relationship. This court concludes that the
circuit court appropriately exercised its discretion in finding that it was in
Danielle’s best interests to terminate Sharon’s parental rights.

¶11 After taking testimony at the hearing, the circuit court summarized
the testimony stating that Danielle’s aunt had put Danielle’s needs first when her
own mother had not. The circuit court continued summarizing the testimony
finding that

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No. 2022AP160

what it tells me is that these parents do not put [Danielle’s]
interests first, but the people in the room who put her
interests first are the two women sitting in the jury box.

And I get it …. You know that you want to fight
for your daughter, but, you know, to have phone calls with
her at this late juncture saying I’m taking you back, it just
doesn’t show any sensitivity to what you guys have put this
little girl through.

….

But [Sharon’s] life was super chaotic. In and out of
custody. Leaving [Danielle] with various relatives.
Leaving her in a condition where she’s obviously not being
cared for well.

….

If she’s [the aunt’s] daughter, the aunt is going to be
sure she goes to college. She’s going to be a role model for
her and a support her.

What does she have, you know, with the parents? I
mean, I’m not trying to be cruel, but really like your lives
are chaotic. You don’t offer her that. You don’t offer her a
vision of who she can really be.

¶12 As a complete review of the record demonstrates, the circuit court
thoroughly and extensively considered the testimony as it related to each of the
factors and found that it was in Danielle’s best interests to terminate Sharon’s
parental rights. See David S. v. Laura S., 179 Wis. 2d 114, 149, 507 N.W.2d 94
(1993) (“[T]he best interests of the child is the polestar of all determinations under
ch. 48.”). As the circuit court stated, terminating Sharon’s rights would “empower
[Danielle] to have the most stability and security she can have.”

¶13 Specifically as to the relationship between Sharon and Danielle, the
circuit court stated that it could not gauge whether there was a substantial
relationship between them but it could see that Sharon’s role in Danielle’s life was
of an “in and out nature.” Indeed, Danielle had been separated from her mother

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No. 2022AP160

“for a full half of her life,” and “[t]here was a fair amount of separation prior to
that with incarceration and not properly caring for her before that.”

¶14 However, the circuit court also found that “not a whole lot [was]
going to change in this family constellation” and “[Sharon] is still going to [be]
her mom, and [Danielle’s aunt] will legally become her mom, but she’s still really
her TT.” In other words, termination of Sharon’s parental rights would make
Danielle’s aunt legally responsible for Danielle and make Danielle’s aunt the daily
caretaker and provider, but Danielle would continue to know Sharon as her mother
and continue to have some form of contact with her biological parents. The circuit
court also recognized that Danielle has “strongly expressed” her desire to remain
with her aunt.

¶15 Consequently, the circuit court found that Danielle overall had a
healthy and stable relationship with her aunt, with whom Danielle had lived since
2019, and it was in Danielle’s best interests to allow her aunt to adopt Danielle in
order to preserve what Danielle had with her aunt and remove the chaos and
instability Danielle experienced with Sharon. As the circuit court stated,
“[Danielle] doesn’t need to shoulder this mess. … She can continue to see her
family as she sees and knows her family.” However, by terminating Sharon’s
rights, “[Danielle] will know she is never leaving [her aunt’s] home. She will
always be a member of her family, and no one gets to play tug of war with her,
and no one gets to emotionally manipulate her[.]”

¶16 In short, the record when viewed as a whole, demonstrates that the
circuit court properly exercised its discretion, appropriately considered the
relationship between Sharon and Danielle, and weighed that relationship with the
other factors to determine what was in Danielle’s best interests—the polestar of

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No. 2022AP160

the proceedings. Before explicitly discussing the factors, the circuit court
provided a summary of the testimony in which it recognized that Danielle had
found stability and security with her aunt, and it was in Danielle’s best interests to
terminate Sharon’s parental rights in order that Danielle may be able to continue
that stability and security. The circuit court stated, “[W]hen you look at the
balance of the factors in total and in particular when you look at the fact that this
family constellation really isn’t going to be changed on a functional level I think
that overall they mitigate in favor of termination.” Thus, this court concludes that
the circuit court properly exercised its discretion.

¶17 Indeed, Sharon conceded that the circuit court appropriately
considered all but one of the factors of WIS. STAT. § 48.426(3), and in making this
argument, Sharon isolates one factor from the rest in arguing that the circuit court
erroneously exercised its discretion. This court declines to isolate one factor when
it is the evaluation of all the factors together that are to be used in determining the
best interests of the child at this phase of the proceedings. See Margaret H., 234
Wis. 2d 606, ¶36. Moreover, it is for the circuit court to determine the relative
weight to be assigned to each factor and “exclusive focus on any one factor is
inconsistent with the plain language of WIS. STAT. § 48.426(3).” See id., ¶¶29, 35
(“[W]e cannot mandate the relative weight to be placed on this factor.”). Because
the circuit court thoroughly considered all the factors together, this court affirms
the circuit court’s order to terminate Sharon’s parental rights.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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