State v. J.M.W.

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 22, 2020
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. 2020AP1057 Cir. Ct. No. 2018TP181

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

J.M.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARK. A. SANDERS, Judge. Affirmed.
No. 2020AP1057

¶1 WHITE, J.1 J.M.W. appeals the circuit court’s order terminating her
parental rights to her child, N.M., on the petition of the Milwaukee County
Department of Human Services. She asks this court to reverse the termination order
and remand to the circuit court for a new dispositional hearing. She argues that the
circuit court erroneously exercised its discretion because it misapplied the “harm to
the child” factor when finding that termination of J.M.W.’s rights was in the best
interests of the child. For the reasons stated below, we conclude that termination
was not an erroneous exercise of discretion, and accordingly, we affirm.2

BACKGROUND

¶2 J.M.W. is the biological mother of N.M. In August 2017, the Division
of Milwaukee Child Protective Services took N.M. into temporary physical custody
because J.M.W. exposed N.M. to domestic violence and J.M.W.’s conduct was
negatively impacted by alcohol use. On August 2, 2018, the State filed a petition to
terminate J.M.W.’s parental rights to N.M. because N.M. remained in continuing
need for protection or services (continuing CHIPS).

¶3 J.M.W. pleaded no contest on the issue of whether grounds existed for
the termination of her parental rights. The trial court conducted a thorough colloquy
with J.M.W. on the decision to plead no contest. To prove the grounds, the State
called Zach Holler, the family case manager for N.M.’s case at SaintA (the Agency).
Holler testified that when the petition was filed in August 2017, J.M.W. admitted
she drank on a daily basis, although now she reported only three to four times per

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
N.M. filed a separate appeal challenging the termination of her mother’s parental rights.
That appeal in case number 2020AP964 is also assigned to this court and will be addressed in a
separate decision.

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week. J.M.W. smelled of alcohol and had slurred speech in Holler’s interactions
with her; additionally, she had not successfully completed AODA counseling.
Holler testified that he did not believe J.M.W. could meet the conditions of return
in the next nine months. The trial court made a finding of J.M.W.’s parental
unfitness after the State established the elements of the CHIPS claim.3

¶4 At the dispositional hearing on January 24, 2020, the circuit court
reviewed the six statutory factors of WIS. STAT. § 48.426(3), which the court must
consider in determining N.M.’s best interests with regards to terminating J.M.W.’s
parental rights.4

3
This case transferred from the Honorable Christopher R. Foley to the Honorable Mark
A. Sanders during a judicial rotation in August 2019. For ease of reading, Judge Foley will be
referred to as the trial court and Judge Sanders as the circuit court.
4
When the court considers the best interests of the child in the disposition of a TPR action,
it considers, but is not limited to, the following six factors:

(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).

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¶5 For the first factor, the likelihood of adoption, the circuit court
considered it highly likely that the current foster parents would adopt N.M. if she
were available to adopt. In the general sense of adoptability, N.M. was only less
adoptable because of her age. The circuit court considered this factor to support
termination.

¶6 The second factor is the age and health of the child at the time of this
disposition; the circuit court indicated that N.M. is eleven years old and healthy.
The circuit court considered this factor to be neutral on the issue of termination.

¶7 The circuit court stated that for the third factor, N.M. had a substantial
relationship with her mother, which stemmed from N.M.’s over eight years in
J.M.W.’s care, J.M.W.’s seventy-eight percent visit attendance rate, and the efforts
of the foster family to maintain the mother-child relationship. The relationship
between N.M. and J.M.W. was evolving because J.M.W.’s visits and phone calls to
N.M. have decreased over time. It was obvious to everyone in the courtroom that it
would be harmful to N.M. to sever the legal relationship with J.M.W., but some of
the harm could be mitigated by ongoing contact after the TPR. Some of the harm
that N.M. would experience existed because she believed that she would be able to
return to her mother as soon as J.M.W. got stable housing. N.M. is in this position
because J.M.W. has made promises to N.M. about coming home. N.M. does not
have an accurate picture of the impact of J.M.W.’s alcohol use on the State’s safety
concerns regarding her return to J.M.W. and that the issue is not only housing
instability. The circuit court considered this factor to weigh against termination,
concluding it was clear that N.M. has a substantial relationship with J.M.W. and
there would be harm to N.M. from severing the legal relationship, some which could
be mitigated but some which would remain.

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¶8 The fourth factor is N.M.’s wishes. The circuit court stated that it is
clear that N.M. wants to be with J.M.W. The weight of this factor increases with
age. It is valuable for N.M. to feel that her wishes have been understood, but no
factor is absolute. The circuit court considered this factor to weigh against
termination.

¶9 The fifth factor is the duration of separation between N.M. and
J.M.W., which is two years, four months, and twenty-five days, which amounts to
twenty-one percent of her life. The circuit court considered this factor to be
generally neutral, although decreasing contact in the last year supported termination.

¶10 The sixth factor is whether N.M. would be able to enter into a more
stable and permanent family relationship through termination. Because of the
current foster mother’s education in social work and personal experience working
with kids after foster care, the circuit court thought there was a very good likelihood
of success. The circuit court concluded there was a low likelihood that N.M. could
be returned to J.M.W.’s care in the future based on her alcohol issues and housing
instability.

¶11 The circuit court stated that the ultimate question it had to answer was
whether granting the TPR allowed N.M. to enter into a more stable and permanent
family relationship compared to the alternatives. First, the court did not think a
return to J.M.W. was possible at that time. Second, a guardianship was proposed,
which had the advantage of continuing a legal relationship between N.M. and
J.M.W., but also had the disadvantage of less stability and permanence. The third
option was TPR, with probable adoption by the current foster family. The
advantages were stability, an ability to make decisions for N.M., and control over

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visitation if J.M.W.’s alcohol use became a problem. The disadvantages were that
N.M. did not want it and N.M. would not feel that her voice was heard.

¶12 The circuit court acknowledged the tension between the factors, but
decided that the “likelihood of adoption, the stability and duration of separation tend
to weigh in favor of termination, and the harm that [N.M.] will suffer is balanced
and her wishes are balanced against that.” Although the balance was close, the
greater degree of stability offered by the foster parents and probable adoption
weighed in favor of termination sufficiently that the circuit court found that
termination of J.M.W.’s parental rights was in the best interest of N.M. J.M.W.
appeals.

DISCUSSION

¶13 J.M.W. argues that the circuit court erroneously exercised its
discretion in concluding that termination was in N.M.’s best interests. J.M.W.
contends that the circuit court applied an incorrect legal standard to factor three of
WIS. STAT. § 48.426(3). J.M.W. argues that the circuit court did not consider only
the best interests of the child in its analysis of factor three, but the court erroneously
minimized the harm N.M. would suffer by attributing parts of the harm to J.M.W.
She argues that the statutes require the court to determine whether the child would
suffer harm from legally severing the relationship between parent and child, not to
weigh the harm the child would suffer against the conduct of the parent. “The best
interests of the child shall be the prevailing factor considered by the court in
determining the disposition” of a petition for termination of parental rights. WIS.
STAT. § 48.426(2). The best interests of the child standard is defined in relationship

to the child, not in terms of a parent’s compliance with conditions in the
dispositional order. Sheboygan Cty DHS v. Julie A.B., 2002 WI 95, ¶38, 255

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Wis. 2d 170, 648 N.W.2d 402; Sallie T. v. Milwaukee Cty DHHS, 219 Wis. 2d
296, 311, 581 N.W.2d 182 (1998), abrogated on other grounds by Village of
Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190.

¶14 Whether the termination of parental rights is in the best interests of
the child is a discretionary decision by the circuit court. Gerald O. v. Cindy R., 203
Wis. 2d 148, 152, 551 N.W.2d 855 (Ct. App. 1996). We will not overturn a circuit
court’s discretionary decision unless the court erroneously exercised its discretion.
WIS. STAT. § 805.17(2). “A circuit court's erroneous view of the facts or the law
constitutes an erroneous exercise of discretion.” State v. Delgado, 223 Wis. 2d 270,
280, 588 N.W.2d 1 (1999). 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 Cty DHS v. Mabel K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d
198.

¶15 The record shows that all parties—including the circuit court—
acknowledged that N.M. would be harmed by severing the legal relationship
between N.M. and J.M.W. N.M.’s foster mother and case manager each testified to
N.M.’s attachment to her mother and her unwavering desire to return to her mother.
The circuit court found there was a substantial relationship between N.M. and
J.M.W., but that relationship was evolving by decreased contact between N.M. and
J.M.W. in the last year. J.M.W. identifies two issues that she argues were erroneous
for the circuit court to consider in its analysis of factor three: (1) that J.M.W. made
promises to N.M. that she could return when J.M.W. had stable housing; and (2)
that N.M. does not have an accurate understanding of her mother’s alcohol abuse
and its impact on her inability to be returned to J.M.W.

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¶16 The State argues that the court’s harm analysis properly considered
all relevant evidence. During the dispositional hearing, the trial court should
consider all relevant evidence “including ‘any factors favorable to the parent,’” and
must consider at minimum the six statutory factors. Steven V. v. Kelley H., 2004
WI 47, ¶27, 271 Wis. 2d 1, 678 N.W.2d 856 (citation omitted). The State argues it
was not improper for the court to take into consideration the fact that N.M.’s
relationship with her mother and her desire to be returned to her care was heavily
influenced by the information shared with her. The State asks us to recognize that
the adults caring for N.M. shielded her from the severity of her mother’s alcohol
abuse issues and sought to preserve the relationship between mother and daughter;
therefore, it was not an error for the circuit court to take those actions into account.

¶17 J.M.W. does not challenge the circuit court’s conclusions for factor
three, but she argues that the process was wrong because the court considered this
additional evidence. She asserts that the circuit court deviated from applicable legal
standards by finding that N.M.’s harm was minimized by J.M.W.’s promises and
N.M.’s false impressions. She argues that this negates the court’s rational process
to consider the facts and law; however, we disagree. Here, all evidence relevant to
the proceedings included that there was a changing relationship between N.M. and
J.M.W., that J.M.W.’s untreated alcohol problems prevented N.M. from safely
returning home, that N.M. was not aware of the extent of J.M.W.’s alcohol issues
or the State’s safety concerns, and that N.M.’s understanding of the situation was
shaped by adult caretakers. Therefore, we conclude that the circuit court employed
a rational process to consider the facts under the law.

¶18 The circuit court is not limited to the six statutory factors when it
considers whether termination of parental rights was in the best interests of the child.
See WIS. STAT. § 48.426(3). Our supreme court held that the harm analysis

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“requires courts to assess the harmful effect of this legal severance on the emotional
and psychological attachments the child has formed with his or her birth family.”
State v. Margaret H, 2000 WI 42, ¶26, 234 Wis. 2d 606, 610 N.W.2d 475. The
emotional and psychological bonds are influenced by the parent’s actions that make
them stronger or weaker. The circuit court considered factor three thoroughly. We
disagree with J.M.W.’s characterization of the circuit court’s process as a
subtractive analysis of harm. The circuit court stated that ongoing contact with
J.M.W. after an adoption might mitigate some of N.M.’s harm, but it still concluded
there would be harm to N.M.

¶19 J.M.W. argues that the circuit court considered information it should
not have, but we are unpersuaded that the standard she proposes exists under
Wisconsin law. The circuit court is required to consider the statutory factors, but
here, the circuit court did a thorough job explaining its reasoning to terminate
J.M.W.’s parental rights. The circuit court found that factor three weighed against
termination. It acknowledged that N.M. would suffer harm. It also found that factor
six and the opportunity for N.M. to enter stable relationships through adoption
weighed in favor of termination and in the balance of factors and evidence,
terminating J.M.W.’s parental rights was the appropriate course of action. We defer
to the circuit court’s determination of the proper weight of each factor when the
court properly examined each factor on the record. Id., ¶35; Julie A.B., 255 Wis. 2d
170, ¶30. Here, the circuit court properly considered the J.M.W.’s conduct and
actions when it reviewed all evidence relevant to factor three.

¶20 J.M.W.’s argument that the circuit court might have considered
alternates like guardianship if it had not minimized N.M.’s harm is entirely
speculative. Although J.M.W. asserts that the statutory factors do not permit the
court to determine the harm the child would suffer by subtracting the harm the court

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attributes to a parent’s conduct or characteristics, she does not provide a legal basis
for this assertion. The circuit court is required to give adequate consideration of and
weight to each factor, but no one factor dictates the disposition of the proceedings.
See Margaret H., 234 Wis. 2d 606, ¶35. Here, the circuit court properly considered
the substantial relationship between mother and daughter and whether it would be
harmful to N.M. to sever that legal relationship. It specifically considered the
emotional and psychological bonds between N.M. and J.M.W. The record shows
the tension in the factors that the circuit court acknowledged, but it is our task to
search for evidence to support the circuit court findings, “not for evidence to support
findings the trial court could have reached but did not.” Noble v. Noble, 2005 WI
App 227, ¶15, 287 Wis. 2d 699, 706 N.W.2d 166. Here, the record shows that the
circuit court examined each factor and considered the best interests of N.M. when
it terminated J.M.W.’s parental rights.

¶21 The circuit court was fully within its discretion to decide that
termination was in N.M.’s best interests because it examined the relevant facts,
applied the proper standard of law, and demonstrated a rational process. The circuit
court reached a conclusion a reasonable court could have made. Accordingly, we
conclude that the circuit court did not erroneously exercise its discretion and we
affirm.

¶22 For the foregoing reasons, we affirm the circuit court.

By the Court.—Order affirmed.

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

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