State v. E. B.

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.
January 18, 2023
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. 2022AP1882 Cir. Ct. No. 2021TP27

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO E. B.-H., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

E. B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL and ELLEN R. BROSTROM, Judges. Affirmed.
No. 2022AP1882

¶1 DUGAN, J.1 Elizabeth appeals from an order of the circuit court
terminating her parental rights to her son, Everett.2 On appeal, she argues that the
circuit court erroneously exercised its discretion at the disposition hearing when it
weighed the factors found in WIS. STAT. § 48.426(3) and found that it was in
Everett’s best interest to terminate her parental rights. 3 For the reasons set forth
below, this court affirms.

BACKGROUND

¶2 Everett was born prematurely to Elizabeth on April 18, 2019. At the
time of his birth, Everett tested positive for THC, cocaine, and heroin. As a result,
Everett remained in the hospital for an extended period of time. The Division of
Milwaukee Child Protective Services (DMCPS) became involved with Everett the
day after his birth and placed Everett with a foster family upon his discharge from
the hospital. Everett has remained with the same foster family since his discharge
from the hospital.

¶3 The State filed a petition to terminate Elizabeth’s parental rights to
Everett on January 21, 2021, on the grounds that Elizabeth failed to assume
parental responsibility and that Everett was a child in need of protection or

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 and to maintain the confidentiality of these proceedings, this court
refers to the mother and son using pseudonyms.
3
The Honorable Ellen R. Brostrom presided over the proceedings to terminate
Elizabeth’s parental rights and entered the order doing so. The Honorable Joseph R. Wall was
assigned as the responsible court official following the order to terminate Elizabeth’s parental
rights.

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No. 2022AP1882

services.4 Elizabeth entered a plea of no contest to the ground of failure to assume
parental responsibility, and the case moved to the disposition phase of the
proceedings. The disposition hearing was held on June 6, 2022.

¶4 At the disposition hearing, the circuit court heard testimony from
several witnesses, including the case manager, the foster mother, Everett’s father,
and Elizabeth. The case manager testified that Everett was born prematurely and
addicted to several illegal substances, including THC, cocaine, and heroin. She
further testified that Elizabeth admitted to using drugs, including having used
cocaine the morning that Everett was born, and that Elizabeth’s drug use
continued to present a concern for the past three years since Everett’s birth.
Indeed, she described that Elizabeth would present as under the influence at visits
with Everett, and she stated that Elizabeth would have trouble staying awake, to
the point where she even dropped Everett because she fell asleep.

¶5 She further testified that Elizabeth had weekly visits scheduled with
Everett, but that the visits could not occur at Elizabeth’s home because of the state
of the home, which included the presence of cat urine and piled garbage
throughout the home. She also testified that Elizabeth was often late for the visits
and visits occurred jointly with Everett’s father. She testified, though, that she did
not believe that Everett had any substantial relationship with Elizabeth and that
Everett had instead found a home with his foster family. As she testified, she
believed that Everett viewed visits with Elizabeth more as “playtime” with a
“babysitter” because the “frequency and the quality of the visits have just not

4
The petition also sought to terminate the rights of Everett’s father, but the rights of
Everett’s father are not at issue in this appeal.

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No. 2022AP1882

provided a substantial bonding situation.” She further confirmed that Everett did
not have any biological siblings and had not met any of his extended family.

¶6 Everett’s foster mother testified that Everett was discharged from the
hospital to her care and that she and her husband have provided for Everett since
that time. She testified that Everett initially experienced several difficulties as a
result of the presence of illegal substances in his system; however, she also
described that Everett was now healthy and no longer experiencing any issues.
She described that Everett was a part of their family and they were willing to
adopt him; she also testified that she would be willing to maintain contact with
Everett’s mother and father, if it was considered safe for Everett to do so. In fact,
she described that she and her husband have adopted children in the past and had
maintained relationships with the biological parents of those children.

¶7 Everett’s father testified that he lived with Elizabeth and provided
for her. He further stated that he was present at Everett’s birth, but he was unable
to remain at the hospital as a result of his work schedule. He testified that he
wanted to keep his family together and he regularly attended visits with Everett.
He was not aware of the extent of Elizabeth’s drug use; however, he would be
willing to end his relationship with her if it meant that he would be able to
maintain his parental rights to his son.

¶8 Elizabeth testified that she has struggled with drug addiction and
admitted to using cocaine and heroin during her pregnancy. She further testified
that she has been attending methadone clinics, and she has made progress in

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No. 2022AP1882

controlling her addiction.5 In particular, she indicated that it had been over a year
since she did any marijuana, it had been about five months since she last did
heroin, and it had been about two months since she last had any cocaine. She
further testified that she understood that her drug addiction would be a lifelong
struggle for her. She also testified that she was terrified of the proceedings to
terminate her parental rights, and she did not want to lose her son.

¶9 Ultimately, the circuit court found that it was in Everett’s best
interest to terminate Elizabeth’s rights. The circuit court acknowledged
Elizabeth’s efforts to control her drug addiction, but the circuit court found that
overall Everett needed permanency and stability at this point in his life. The
circuit court further found that terminating Elizabeth’s parental rights and allowing
Everett to continue his life with his foster family provided the permanency and
stability that Everett needed, and that Everett was likely to be adopted by his
current foster family. The circuit court further noted that Everett had no siblings,
had never met any members of his extended family, and did not have a substantial
bond with Elizabeth. The circuit court observed that Everett has never known any
home other than the home of his foster family, and that Everett was thriving in his
current environment. The circuit court further stated that Everett could not
communicate his wishes due to his young age, but if he could, the circuit court
imagined Everett would want to stay with his foster family.

¶10 Elizabeth now appeals.

5
By contrast, the case manager testified that she was unable to confirm Elizabeth’s
attendance at any of the methadone clinics that Elizabeth reported to attend.

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No. 2022AP1882

DISCUSSION

¶11 “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. On appeal, Elizabeth argues that the circuit court
erroneously exercised its discretion during the second part of the proceedings—the
disposition hearing—when it found that it was in Everett’s best interest to
terminate her parental rights. Specifically, Elizabeth argues that the circuit court
erroneously weighed the factors found in WIS. STAT. § 48.426(3). She highlights
her own testimony in which she stated that she is attending methadone clinics, is
working to control her addictions, does not want to lose her son, and believes she
has a substantial relationship with him. She also argues that the circuit court
erroneously placed emphasis on the testimony from Everett’s foster mother that
she would be willing to maintain contact with Elizabeth because this stated intent
“has no legal authority or enforceability.”

¶12 The best interest of the child is the prevailing standard at the
disposition phase of termination of parental rights proceedings, and in determining
the best interest of the child, the circuit court must consider the six factors
enumerated in WIS. STAT. § 48.426(3). State v. Julie A.B., 2002 WI 95, ¶4, 255
Wis. 2d 170, 648 N.W.2d 402. These factors include:

(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.

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No. 2022AP1882

(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).

¶13 “The ultimate determination of whether to terminate parental rights
is discretionary with the circuit court.” State v. Margaret H., 2000 WI 42, ¶27,
234 Wis. 2d 606, 610 N.W.2d 475. Consequently, the weighing of the factors at
the disposition hearing is within the trial court’s discretion, and this court “will
sustain the circuit court’s ultimate determination in a proceeding to terminate
parental rights if there is a proper exercise of discretion.” Id., ¶32. “A proper
exercise of discretion requires the circuit court to apply the correct standard of law
to the facts at hand.” Id. In this case, a review of the record of the disposition
hearing, demonstrates that the circuit court applied the correct standard of law to
the facts of this case. Accordingly, this court concludes that there the circuit court
did not erroneously exercise its discretion.

¶14 As noted, the circuit court heard testimony from several witnesses
connected to Everett’s case at the disposition hearing, including Elizabeth, the
father, the case manager, and the foster mother. At the conclusion of that
testimony, and as conceded by Elizabeth, the circuit court discussed each of the
factors found in WIS. STAT. § 48.426(3) on the record and the testimony related to
each factor. See Margaret H., 234 Wis. 2d 606, ¶35 (“[T]he record should reflect
adequate consideration of and weight to each factor.”). Rather, Elizabeth argues
that the circuit court did not give Elizabeth’s own testimony adequate weight and

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No. 2022AP1882

gave too much weight to the foster mother’s stated intent to maintain contact with
Elizabeth.

¶15 While Elizabeth is correct that Elizabeth’s testimony and the foster
mother’s stated intent to maintain contact with Elizabeth are appropriate factors
for the circuit court to consider, the circuit court nevertheless retains discretion
regarding the weight assigned to each factor and the credibility assigned to each
witness’s testimony. See David S. v. Laura S., 179 Wis. 2d 114, 150, 507 N.W.2d
94 (1993) (“A determination of the best interests of the child in a termination
proceeding depends on first-hand observation and experience with the persons
involved and therefore is committed to the sound discretion of the circuit court.”).

¶16 Here, the record reflects that the circuit court recognized the steps
that Elizabeth had recently taken to control her addiction and her efforts to
maintain a relationship with Everett; however, the circuit court ultimately found
that it was in Everett’s best interest to terminate Elizabeth’s parental rights in
order to best serve Everett’s best interest and provide stability and permanency.
See WIS. STAT. § 48.426(3)(f). As the circuit court stated, “from [Everett]’s
perspective [his foster family is] his family. He has been with them since he was
released from the hospital. He has gone through some really hard times that they
were there to help him navigate.” Moreover, “during those first six months, in
particular, it sounds like there wasn’t a whole lot of engagement from the parents,”
and while the parents “have done a lot of visits[,] … it’s a very small percentage
of [Everett]’s life[.]” The circuit court also stated that Elizabeth was “still in the
throes of getting it [her drug addiction] under control.” Thus, balancing the
relationship Everett had with his foster family, the relationship that Everett had
with his parents, Elizabeth’s progress with her drug addiction, and the remaining
factors, the circuit court found that terminating Elizabeth’s parental rights was

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No. 2022AP1882

overall in Everett’s best interest because it provided him with the stability and
permanency he needed in light of the strong relationship he had with his foster
family that wished to adopt him, his lack of relationship with his biological
parents, and the fact that Elizabeth still needed more time in her attempts to
control her addiction.

¶17 Thus, this court concludes that the circuit court did not erroneously
exercise its discretion in regards to its consideration of Elizabeth’s testimony. The
record reflects that the circuit court considered Elizabeth’s testimony in the
context of the other testimony given at the disposition hearing and as relevant to
the factors found in WIS. STAT. § 48.426(3). See Margaret H., 234 Wis. 2d 606,
¶32. While Elizabeth testified to making progress with her addiction, not wanting
to lose her son, and having a substantial relationship with him, the case manager
and foster mother testified that Elizabeth played a small role in Everett’s life,
Everett fit well within his foster family, and there were ongoing concerns with
Elizabeth’s drug addiction. The circuit court’s decision adequately reflects
consideration of all the testimony given, and therefore, the circuit court did not
erroneously exercise its discretion with the weight it gave to Elizabeth’s testimony
when evaluating the factors found in § 48.426(3).

¶18 Similarly, this court concludes that the circuit court did not
erroneously exercise its discretion in regards to the foster mother’s stated intent to
maintain contact with Elizabeth. “In its discretion, the court may afford due
weight to an adoptive parent’s stated intent to continue visitation with family
members[.]” Margaret H., 234 Wis. 2d 606, ¶29.

¶19 Furthermore, the circuit court’s consideration of the foster mother’s
intent here is bound up with a credibility finding. This court will not upset a

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No. 2022AP1882

credibility determination unless it is clearly erroneous, see WIS. STAT. § 805.17(2),
and this court concludes that the circuit court’s credibility determination here is
well supported by the record. As the foster mother testified, she and her husband
have adopted children in the past and have maintained relationships with the
biological parents of those children. Further, the circuit court stated, “I believe the
[foster mother] that they’re going to mitigate any harm severing those
relationships will cause because they’ve already demonstrated that they’re
prepared to do that with other adopted children.” The history of the foster mother
and her husband maintaining relationships with the biological parents of their
other adopted children supports the circuit court’s finding of credibility. Thus, this
court will not upset the circuit court’s credibility determination as to the foster
mother’s stated intent here.

¶20 Accordingly, this court concludes that the circuit court appropriately
exercised its discretion in finding it was in Everett’s best interest to terminate
Elizabeth’s parental rights, and 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.

10