Juneau County DHS v. R. 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.
September 29, 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. 2022AP1260 Cir. Ct. No. 2021TP5

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

JUNEAU COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

R.M.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Juneau County:
DANIEL G. WOOD, Judge. Affirmed.
No. 2022AP1260

¶1 KLOPPENBURG, J.1 R.M. appeals the circuit court’s order
terminating her parental rights to her son M.M. The court first found that R.M. is
an unfit parent based on a jury’s findings that M.M. is a child in continuing need
of protection or services (CHIPS) and that R.M. failed to assume parental
responsibility. See WIS. STAT. § 48.415(2) and (6). The court then determined
that termination of R.M.’s parental rights would be in M.M.’s best interest. R.M.
argues that: (1) there is insufficient evidence to support the jury’s verdicts as to
the continuing CHIPS and failure to assume parental responsibility grounds on
which the court based its determination that R.M. is an unfit parent; and (2) the
court erroneously exercised its discretion in determining that termination of
R.M.’s parental rights was in M.M.’s best interest by improperly weighing the
statutory factors. For the reasons set forth below, I reject R.M.’s arguments and
affirm.

BACKGROUND

¶2 R.M. is the mother of M.M., who was born on November 25, 2014.

¶3 M.M. was removed from R.M.’s home and taken into custody on
January 2, 2019, after his sister was diagnosed as suffering from “definite physical
abuse.” On June 27, 2019, the circuit court found M.M. to be in need of
protection or services under WIS. STAT. §§ 48.13(3m) (risk of abuse) and
48.13(10) (neglect). On the same day, the circuit court entered a dispositional
order that formally placed M.M. outside of R.M.’s home and contained conditions

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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No. 2022AP1260

for R.M. to complete for M.M. to be returned. Termination of parental rights
warnings were given at that time.

¶4 M.M. was returned to R.M.’s home on July 7, 2020 and again
removed from R.M.’s home on November 30, 2020.

¶5 On May 27, 2021, Kassandra Murphy, the Juneau County case
worker assigned to M.M., filed a petition for termination of parental rights. The
petition alleged that grounds for the termination of R.M.’s parental rights existed
under WIS. STAT. § 48.415(2) (continuing CHIPS) and (6) (failure to assume
parental responsibility).

¶6 On January 27, 2022, a three-day jury trial commenced, at which the
following witnesses testified: Murphy (the case worker), a drug and alcohol
counselor who provided counseling to R.M., a psychotherapist who met with and
prepared an assessment of R.M., a psychologist who prepared evaluations of R.M.
and M.M., and another psychologist who prepared an independent evaluation of
R.M. A former Elroy police officer also testified about a search warrant executed
on R.M.’s Elroy residence in 2019.

¶7 At the conclusion of the testimony and closing arguments, the jury
returned verdicts finding grounds for termination based on continuing CHIPS and
failure to assume parental responsibility. The circuit court found that R.M. was an
unfit parent based on those verdicts.

¶8 At the conclusion of the dispositional hearing held on March 14,
2022, the circuit court determined that termination of R.M.’s parental rights was in
M.M.’s best interest. R.M. appeals.

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No. 2022AP1260

DISCUSSION

I. Applicable Legal Principles and Standard of Review.

¶9 “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. The first phase is the fact-finding hearing “to
determine whether grounds exist for the termination of parental rights.”
Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648
N.W.2d 402 (quoting WIS. STAT. § 48.424(1)). During this “grounds” phase, “the
petitioner must prove by clear and convincing evidence that one or more of the
statutorily enumerated grounds for termination of parental rights exist.” Steven
V., 271 Wis. 2d 1, ¶24. The relevant grounds in this case are WIS. STAT.
§ 48.415(2) (continuing CHIPS) and § 48.415(6) (failure to assume parental
responsibility).

¶10 At the conclusion of the fact-finding hearing, a jury or the circuit
court determines “whether any grounds for the termination of parental rights have
been proved.” WIS. STAT. § 48.424(3). “If grounds for the termination of parental
rights are found by the court or jury, the court shall find the parent unfit.” Sec.
48.424(4). “A jury’s verdict must be sustained if there is any credible evidence,
when viewed in a light most favorable to the verdict, to support it.” Sheboygan
Cnty. DHHS v. Tanya M.B., 2010 WI 55, ¶49, 325 Wis. 2d 524, 785 N.W.2d 369.

¶11 To determine if parental rights should be terminated, the proceeding
moves to the second “dispositional” phase, a dispositional hearing to determine the
best interest of the child. Julie A.B., 255 Wis. 2d 170, ¶28. A circuit court
exercising its discretion in determining the appropriate disposition “shall consider
the standard and factors enumerated in” WIS. STAT. § 48.426(2) and (3)

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No. 2022AP1260

respectively. See § 48.426(1). “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). After the dispositional hearing, the court may
enter an order terminating the parental rights of the parent, or it may dismiss the
petition if it finds that the evidence does not warrant termination. Julie A.B., 255
Wis. 2d 170, ¶28.

¶12 In making its determination regarding disposition, the circuit court
must consider the following statutory factors, as well as any other factors the
circuit court determines are applicable:

(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).

¶13 “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.” Darryl T.-H. v. Margaret H., 2000
WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475. This court will not overturn a

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No. 2022AP1260

circuit court's decision on disposition in a termination of parental rights
proceeding unless the circuit court erroneously exercised its discretion. David S.
v. Laura S., 179 Wis. 2d 114, 150, 507 N.W.2d 94 (1993).

II. Analysis

¶14 R.M. challenges the jury’s verdicts at the grounds phase and the
circuit’s court weighing of the statutory factors at the dispositional phase. I
address each challenge in turn.

A. Grounds for Termination of Parental Rights

¶15 As stated, the jury found both the continuing CHIPS and failure to
assume parental responsibility grounds for terminating R.M.’s parental rights to
M.M. Under the statute, only one of the statutory grounds need be found to
support a circuit court’s finding that a parent is unfit. WIS. STAT. § 48.415
(“Grounds for termination of parental rights shall be one of the following:”); WIS.
STAT. § 48.424 (“If grounds for the termination of parental rights are found by the
court or jury, the court shall find the parent unfit.”); Steven V., 271 Wis. 2d 1, ¶24.
Because I conclude that credible evidence supports the jury’s verdict as to the
continuing CHIPS ground, I need not, and do not, address R.M.’s challenge to the
failure to assume parental responsibility ground.

¶16 Under WIS. STAT. § 48.415(2), continuing CHIPS can be established
by proving any of the following:

(a)(1) That the child has been adjudged to be a
child or an unborn child in need of protection or services
and placed, or continued in a placement, outside his or her
home pursuant to one or more court orders….

….

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No. 2022AP1260

(2)b. That the agency responsible for the care of the
child and the family or of the unborn child and expectant
mother has made a reasonable effort to provide the services
ordered by the court.

(3) That the child has been placed outside the home
for a cumulative total period of 6 months or longer pursuant
to an order … [and] 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 15 of the most recent 22 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 15 of the most recent 22
months, not including any period during which the child
was a runaway from the out-of-home placement or was
residing in a trial reunification home.

¶17 R.M. argues that the County failed to prove the elements of the
continuing CHIPS ground, focusing on the element “that the parent has failed to
meet the conditions established for the safe return of the child to the home.” WIS.
STAT. § 48.415(2)(a)3. R.M. supports her argument by pointing to evidence that
she provided safe housing for M.M., maintained a bond with M.M., attempted to
get M.M. into therapy, and maintained a good relationship with M.M.’s foster
parents. R.M. also points to evidence that she completed Alcohol and Other Drug
Abuse (AODA) treatment, a psychological examination, and anger management,
and that she underwent consistent drug testing through the filing of the TPR
petition and drugs have not been found in her home since 2019.

¶18 However, R.M. disregards the evidence that supports the jury’s
specific finding that she failed to meet the conditions established for the safe
return of M.M. to her home. As to providing safe suitable housing (condition
3.b.), there is credible evidence showing that the housing R.M. provided for M.M.
was not always safe and was frequently impermanent. Specifically, between
January 2019 and February 2020, R.M. lived in at least four different places.

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No. 2022AP1260

Beginning in February 2020, R.M. had a residence for several months, but she told
Murphy that there were unsafe people coming to the residence and that the
landlord’s boyfriend exposed himself to one of R.M.’s teenage daughters there.
R.M. left her next residence after a few months when the building was boarded up
with sheet metal to prevent her reentry. The landlord at that residence also
provided M.M. alcohol when M.M. was allowed to go downstairs to a bar with the
landlord.

¶19 As to the strength of R.M’s bond with M.M. and maintaining visits
with him (condition 3.c.), there is credible evidence showing that R.M.’s actions
were detrimental to maintaining a bond with M.M. and that she missed many
visits. Specifically, R.M. missed almost half of her visits with M.M. from
November 2020 to May 2021, and there were issues when visits did occur. These
include R.M. ignoring M.M., saying “inappropriate things” to him, and allowing
other children to make fun of M.M. for wetting the bed, and M.M. choosing to use
his tablet or a phone instead of interacting with R.M. R.M. missed enough visits
that it was requested she confirm each visit beforehand so that M.M. would not be
transported to the visit and R.M. would not be there, which was not “a good
environment for him.”

¶20 As to R.M.’s relationship with M.M.’s foster parents, there is no
record evidence of that relationship. Moreover, regardless of the nature of that
relationship, the court-ordered conditions required that R.M. maintain monthly
contact with all of M.M.’s providers (condition 3.d.), and there is credible
evidence that R.M. did not maintain contact with other providers including M.M.’s
primary doctor, dentist, physical therapist, mental health therapist, and school
teachers. Specifically, R.M. did not know M.M.’s primary doctor’s name and did
not attend the appointment or follow up with his doctor, did not know the name of

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No. 2022AP1260

or contact M.M.’s therapist, and attended only one of six physical therapy
appointments and one of five dentist appointments for M.M. without making any
further contact with either provider. R.M. also had no contact with M.M.’s school
teachers.

¶21 As to R.M.’s own AODA treatment and drug testing (conditions 3.e.
and 3.f.), credible evidence shows that R.M. did not follow recommendations to
continue with further AODA counseling and, since the petition for termination of
parental rights was filed, she refused tests or did them improperly.

¶22 As to other court-ordered conditions, there is uncontroverted
testimony that R.M. did not stay in touch and cooperate with the county social
worker and did not inform the Juneau County Department of Health Services of
address changes (condition 3.a.), and that she refused to participate in mental
health therapy (conditions 3.g., 3.i., 3.j.).

¶23 In sum, credible evidence supports the jury’s verdict as to the
continuing CHIPS ground.

B. Best interest of the child

¶24 R.M. challenges the circuit court’s dispositional phase determination
that termination of her parental rights is in the best interest of the child, based on
the court’s asserted improper weighing of the statutory factors. Specifically, R.M.
argues that the court emphasized the facts surrounding M.M.’s removal and
insufficiently weighed the recent efforts R.M. has made or her continuing
expression of her love for M.M. and her desire to have him returned to her home.

¶25 The record shows that the circuit court properly applied the correct
standard of law and considered each of the statutorily required factors. The court

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No. 2022AP1260

explicitly mentioned each factor and point-by-point explained its conclusion on
each one. The court also addressed R.M.’s love for M.M. but noted that “[M.M.]
does not -- or did not reciprocate [R.M.’s] overtures including hugs and …
expressions of love after the last visit that was held.” The court also addressed the
past trauma that R.M. experienced in her own life as it related to her drug use and
residential instability, and acknowledged her recent efforts to improve her life.
However, the court ultimately weighed all of these facts along with the statutory
factors and determined that termination of R.M.’s parental rights was in M.M.’s
best interest. R.M. essentially asks that this court reweigh the factors in her favor.
However, it is not the role of an appellate court to exercise the circuit court’s
discretion. Krier v. EOG Env’t, Inc., 2005 WI App. 256, ¶24, 288 Wis. 2d 623,
707 N.W.2d. 915. Rather, the appellate court’s role is only to review whether the
circuit court “examined the relevant facts, applied a proper standard of law, and,
using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.” Loy v. Bunderson, 107 Wis. 2d 400, 415, 320 N.W.2d 175
(1982). Because the circuit court did so here, R.M. has failed to show that the
court erroneously exercised its discretion.

CONCLUSION

¶26 For the reasons discussed above, the circuit court’s order is affirmed.

By the Court.—Order affirmed.

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

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