State v. A. A.

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.
May 3, 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. 2022AP311 Cir. Ct. No. 2019TP98

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO T.W., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

A.A.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
No. 2022AP311

¶1 BRASH, C.J.1 A.A. appeals the order of the trial court terminating
her parental rights to T.W. A.A. argues that the court erroneously exercised its
discretion when it determined that it was in the best interests of T.W. to terminate
A.A.’s parental rights. Upon review, we affirm.

BACKGROUND

¶2 A.A. is the biological mother of T.W., born in October 2016. 2 T.W.
was born at twenty-four weeks gestation and had “exceptional medical needs” at
birth. His diagnoses included bronchopulmonary dysplasia, anemia, a congenital
deformity of his left foot, feeding problems, and hypertension. He spent a
significant amount of time in the neonatal intensive care unit and required several
surgeries.

¶3 T.W. was not discharged from the hospital until May 2017. Due to
his medical needs, T.W. required twenty-four hour care, which entailed certain
tasks his parents had to learn prior to taking him home relating to his oxygen use,
tube feedings, and medications. However, his parents were “kicked out” of the
hospital several times due to their “inappropriate behavior.” For example, there
was an incident where A.A. punched T.W.’s father in the face several times while
at the hospital and was cited by the sheriff’s department. Additionally, T.W.’s
father “was observed exhibiting intimidating behaviors in the hospital such as

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
The parental rights of T.W.’s father were also terminated as a result of these
proceedings; however, he is not a part of this appeal.

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No. 2022AP311

hiding, following nursing staff, and blocking staff members in corners.” He was
ultimately banned from the hospital as a result of this conduct.

¶4 T.W. was detained by the Division of Milwaukee Child Protective
Services (DMCPS) in August 2017, approximately three months after he was
discharged from the hospital. The grounds included concerns about domestic
violence as well as medical neglect, such as T.W. “being without his oxygen for
an unknown period of time, not having his boot on his foot following surgery, and
not receiving his medication.”

¶5 As a result, T.W. was found to be a child in need of protection or
services (CHIPS). A CHIPS dispositional order was entered in September 2018
which listed a number of conditions that had to be met before T.W. could be
returned to his parents’ care. Those conditions included demonstrating the ability
to meet all of T.W.’s medical needs and an understanding of his other special
needs; not allowing domestic violence in their home; and controlling their mental
health needs. Regular visitation with T.W. was also required.

¶6 A.A. failed to meet these conditions. She did not attend any of
T.W.’s numerous medical appointments and thus could not demonstrate that she
understood his special needs and would be able to care for him. DMCPS offered
parenting classes as well as a specialized parenting aide to assist A.A. with this,
but she only partially utilized these services and did not “appear to be able to
understand her child’s needs.” A.A. also refused to participate in domestic
violence counseling, and she failed to regularly attend therapy for her mental
health issues although she had been diagnosed with bipolar disorder and
depression. Additionally, A.A. was inconsistent in her visitation with T.W., which
was impacted by A.A.’s moving to Indiana.

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No. 2022AP311

¶7 Therefore, a petition for the Termination of Parental Rights (TPR)
with regard to T.W. was filed in June 2019. In the petition, the State’s alleged
grounds for termination included the continuing need of protection or services for
T.W., pursuant to WIS. STAT. § 48.415(2), and A.A.’s failure to assume parental
responsibility, pursuant to § 48.415(6).

¶8 A.A. entered a no-contest plea to the continuing CHIPS ground of
the petition in October 2019, and the matter proceeded to a dispositional hearing in
August 2021. A.A. did not appear until the hearing was well under way, claiming
that the hearing had been rescheduled without her knowledge, and that she had just
received a notice in the mail with the correct hearing date, even though she was
present in court when the hearing date had been set. The trial court, which had
found A.A. to be in default, “lifted” that default ruling only for purposes of
allowing A.A. to testify.

¶9 A.A. testified that she had moved to Indiana after the CHIPS order
was entered to be closer to her family and because there were “better
opportunit[ies]” there for her and T.W. She stated that she had a therapist in
Indiana, and that she had participated in domestic violence and anger management
counseling there as well. She also said that she was attending college and was
about to launch her own business.

¶10 She further testified that she had maintained consistent visits with
T.W. through video calls during the pandemic, and that she had one physical visit
with him in March 2021 but had missed a subsequent visit in May due to her
college internship. She also noted that she was “looking at an autistic class” for
T.W.

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No. 2022AP311

¶11 A.A.’s case manager also testified at the hearing. The case manager
stated that A.A. had not been in contact with her since May 2021. She said that
A.A. also had never contacted any of T.W.’s doctors, so her knowledge of his
needs and the level of care he requires is “pretty minimal.” The case manager
further stated that prior to the March 2021 visit, it had been “years” since A.A. had
last visited T.W., even though DMCPS had offered to provide A.A. with bus
tickets for transportation from Indiana.

¶12 Additionally, the case manager described T.W.’s many “medical and
developmental” issues, including being nonverbal, autistic, and diagnosed with
ADHD. She said that T.W. had several previous placements in other foster
homes, but those had “fallen through,” likely due to T.W.’s numerous health
issues and the “long-term unknown” relating to those issues. However, the case
manager declared that T.W.’s current foster parent was “fantastic with him,”
understood all of his needs, and was committed to adopting him.

¶13 Furthermore, the case manager stated that if the TPR petition was
not granted, T.W. would likely stay in foster care because his parents had not
made any “substantial behavior change” in order to meet the conditions for return
as set forth in the CHIPS order. Moreover, they did not have a “significant
relationship” with T.W., and they had not “shown an interest in really wanting him
home.”

¶14 T.W.’s foster parent also testified. She confirmed that she is an
adoptive resource for T.W. and that she feels like he is already part of her family.
She further stated that she had no concerns regarding caring for T.W. with all of
his health concerns; in fact, she noted that her brother has some of the same issues
and she had helped with his care.

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No. 2022AP311

¶15 The trial court then reviewed the statutory factors for determining
what was in the best interest of T.W. The court noted the length of time that T.W.
had spent in foster care, which was four years at that point. Thus, the court
determined that there was not a substantial relationship between T.W. and his
parents, stating, “It’s not a relationship when you visit when it’s okay for you to
visit. It’s not a relationship while someone else steps in as the primary caretaker
when you don’t have the time.”

¶16 The trial court also observed the foster parent’s willingness to adopt
T.W., that she was well aware of his health problems, and that she had experience
dealing with her brother’s similar problems. The court found that this would
likely be a more stable and permanent family relationship for T.W. The court also
stated that, with regard to the factor relating to the child’s wishes, although T.W.
was “too young to state his preference,” he “gravitates towards” his current foster
parent. Therefore, the court determined that it was in the best interest of T.W. that
the parental rights of A.A., and his father, be terminated. This appeal follows.

DISCUSSION

¶17 On appeal, A.A. asserts that the trial court erroneously exercised its
discretion in determining that the termination of her parental rights was in the best
interest of T.W. “The ultimate determination of whether to terminate parental
rights is discretionary with the [trial] court.” State v. Margaret H., 2000 WI 42,
¶27, 234 Wis. 2d 606, 610 N.W.2d 475. We will uphold this decision if the trial
court applied the correct standard of law to the facts of the case. See id., ¶32.

¶18 In making the determination to terminate parental rights, “the best
interests of the child is the paramount consideration” for the trial court. Id., ¶33.
The trial court’s decision should reference the factors set forth in WIS. STAT.

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No. 2022AP311

§ 48.426(3), and any other factors it relied upon, in explaining on the record the
basis for the disposition. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶30,
255 Wis. 2d 170, 648 N.W.2d 402.

¶19 The statutory factors that the trial court is required to consider 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.

(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).

¶20 The record indicates that the trial court referenced all of these factors
in its decision, as discussed above, and found that the evidence relating to each
factor weighed in favor of the termination of parental rights. Indeed, A.A.’s
argument is not that the court did not consider the proper factors, but rather that it
should have weighed the evidence more favorably toward her.

¶21 For example, the trial court stated that it “g[a]ve a lot of weight” to
the fact that T.W. had been in foster care for four years—most of his life. A.A.
testified that during that time, she had attended college and started her own

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No. 2022AP311

business, which she believes should have been afforded great weight by the trial
court. However, the court pointed out that while A.A. had “improved herself
according to her,” in the meantime, others had to care for T.W. In other words,
A.A. had put her own needs ahead of T.W.’s needs.

¶22 The trial court further stated that T.W.’s current foster parent had the
“desire to meet” all of T.W.’s special needs, which had been an issue with his
previous placements, and that the likelihood of a permanent home with her would
mean that he would not “languish” in foster care while continuing to wait for A.A.
to involve herself in T.W.’s life and demonstrate she could care for him. This
clearly indicates that the court believed T.W.’s probable adoption by his foster
parent was in his best interest, the “paramount consideration” in a TPR case. See
Margaret H., 234 Wis. 2d 606, ¶33.

¶23 In short, the trial court’s findings are supported by the record, and its
discussion of the requisite statutory factors was thorough and complete.
Therefore, by applying the correct standard of law to the facts of the case to
determine the best interests of T.W., the court did not erroneously exercise its
discretion in terminating the parental rights of A.A. See id., ¶32. Accordingly, we
affirm.

By the Court.—Order affirmed.

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

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