V.A. v. M.W.P.

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.
November 20, 2019
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. 2019AP1098 Cir. Ct. No. 2018TP26

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

V.A.,

PETITIONER-RESPONDENT,

V.

M.W.P.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
DAVID P. WILK, Judge. Affirmed.
No. 2019AP1098

¶1 GUNDRUM, J.1 M.W.P., E.W.P.’s biological father, appeals from
an order of the circuit court terminating his parental rights to E.W.P. For the
following reasons, we affirm.

Background

¶2 V.A., E.W.P.’s mother, filed a petition to terminate M.W.P.’s
parental rights to E.W.P. on the grounds of abandonment and failure to assume
parental responsibility. M.W.P. entered a no contest admission on the
abandonment ground, and the matter proceeded to the second phase of the
termination of parental rights (TPR) proceedings—the disposition phase—during
which the circuit court considered whether it was in the best interests of E.W.P. to
terminate M.W.P.’s parental rights. Following an evidentiary hearing, the court
determined that it was. M.W.P. appeals.

Discussion

¶3 M.W.P. raises two issues on appeal. He asserts the circuit court
erred in not dismissing V.A.’s petition to terminate his parental rights “after
V.A.’s husband [M.A.] confronted the guardian ad litem during disposition
[proceedings] and told him that he would have blood on his hands.” M.W.P. also
contends the court erred by giving insufficient weight “to [this] misconduct of
V.A.’s husband” and to the recommendation of the guardian ad litem (GAL) that
M.W.P.’s parental rights should not be terminated. He fails to persuade on either
issue.

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.

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No. 2019AP1098

¶4 In determining whether to terminate parental rights, a circuit court
must decide whether termination is in the child’s best interests. See WIS. STAT.
§ 48.427; Dane Cty. DHS v. Mable K., 2013 WI 28, ¶59, 346 Wis. 2d 396, 828
N.W.2d 198 (“[T]he best interests of the child” is the “domina[nt]” and
“paramount consideration” in the disposition phase of a termination proceeding.
(citation omitted)). To make this decision, the circuit court considers, but is not
limited to, the following 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). We will affirm the court’s decision to terminate parental
rights unless the court erroneously exercised its discretion. See State v.
Margaret H., 2000 WI 42, ¶27, 234 Wis. 2d 606, 610 N.W.2d 475.

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No. 2019AP1098

Decision to Terminate M.W.P.’s Parental Rights to E.W.P.

¶5 Here, the circuit court considered each of these factors, and after
weighing the evidence presented, determined that termination of M.W.P.’s
parental rights was in E.W.P.’s best interests. As the evidence supported the
court’s decision, the court did not erroneously exercise its discretion.

¶6 With regard to the likelihood of E.W.P.’s adoption after termination
of M.W.P.’s parental rights—the first statutory factor—evidence presented at the
disposition hearing indicates V.A. is married to M.A.; M.A. treats E.W.P. as if
E.W.P. is his son; M.A. is willing to adopt E.W.P. and E.W.P. wants M.A. to
adopt him; and E.W.P. considers his sister A.P., V.A., M.A., and M.A.’s two
children as his family. In consideration of this first statutory factor, the circuit
court found it was likely E.W.P. would be adopted if M.W.P.’s parental rights
were terminated. As shown, this finding is supported by evidence presented at the
hearing.

¶7 Regarding the age and health of the child, the circuit court found that
E.W.P. was eight, almost nine, years old at the time of the disposition hearing, and
his health did not present an impediment to adoption.

¶8 The circuit court also considered whether E.W.P. had a substantial
relationship with M.W.P. or M.W.P’s family members and whether it would be
harmful to E.W.P. to sever any such relationship. On this factor, the court found
that it was “undisputed that [E.W.P.] does not currently have substantial
relationships” with M.W.P. or M.W.P.’s family members. This finding is
supported by the evidence as M.W.P. admitted at the hearing that he did not have a
substantial relationship with E.W.P., and V.A. and M.W.P. both testified that it
had been several years since M.W.P.’s parents last saw E.W.P. Additionally, a

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No. 2019AP1098

social worker testified that she interviewed E.W.P., and E.W.P. did not say
anything about M.W.P.’s relatives and did not appear to have a substantial
relationship with M.W.P. or M.W.P.’s family members. At the time of the
disposition hearing, M.W.P. had been incarcerated for the prior four and one-half
years of E.W.P.’s life, was expected to remain incarcerated until March 2021, and
had not had any form of contact with E.W.P. since 2016.

¶9 As to the wishes of the child, the circuit court found that E.W.P.
“understands the distinction between his real siblings and siblings. He wants his
siblings, as he understands them, to be his real siblings. He wants the person who
he identifies as Dad to be his real dad. Those are actions evidencing his wishes.”
This finding is supported by the testimony at the disposition hearing as the social
worker and/or V.A. indicated that E.W.P. expressed he did not want to associate
with M.W.P. when M.W.P. gets released from prison, he considers M.A. as his
father, and he wants M.A. to adopt him.

¶10 With regard to the “duration of separation of the parent from the
child,” the circuit court found that M.W.P. had been separated from E.W.P. for
approximately three years, about one-third of E.W.P.’s life. The court further
found that M.W.P. had been largely removed from E.W.P.’s life since M.W.P.’s
incarceration. Evidence presented at the hearing supports these uncontested
findings.

¶11 On the question of whether E.W.P. would “be able to enter into a
more stable and permanent family relationship as a result of the termination,” the
circuit court found that if M.W.P.’s relationship with E.W.P. was “sever[ed],”
M.A. could adopt E.W.P. and “the benefits of an adoption and the stability that
would come from that outweigh any harm that would befall the child from

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No. 2019AP1098

severing of [the] insubstantial relationships” E.W.P. had with M.W.P. and his
family members. The totality of the evidence presented, some of which is detailed
above, supports the court’s determination in this regard.

¶12 All this said, in the end, M.W.P. does not argue on appeal that any of
these findings by the court are unsupported by the evidence. Instead, he argues as
follows.

Failure to Dismiss Petition Due to Conduct of V.A.’s Husband

¶13 On the second day of the dispositional hearing, the GAL informed
the circuit court that after the first day of the hearing the GAL was walking past
V.A. and M.A. in the courthouse when M.A. approached the GAL and told the
GAL he had “blood on [his] hands.”2 M.A. then “continued telling [the GAL]
more verbal stuff.” The GAL “practically ignored” M.A. and informed counsel
for both parties about this incident. The court asked the GAL on the second day if
he could continue in his role as GAL, to which the GAL indicated he could.
Counsel for M.W.P. asked the court to dismiss the petition to terminate M.W.P.’s
parental rights because of this incident. The court denied the motion to dismiss.

¶14 M.W.P. contends on appeal that the circuit court erroneously
exercised its discretion by not dismissing V.A.’s petition to terminate the parental
rights of M.W.P. because M.A. effectively intimidated the GAL with M.A.’s
statement to the GAL that the GAL would have “blood on [his] hands.” M.W.P. is
correct that we review for an erroneous exercise of discretion the court’s decision

2
At the hearing, counsel for M.W.P. told the court that the GAL “has let it be known
that he is predisposed to denying the request for termination in this case, and that was well
known” to V.A. and M.A.

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No. 2019AP1098

to grant or deny a motion to dismiss as a sanction, see Schultz v. Sykes, 2001 WI
App 255, ¶8, 248 Wis. 2d 746, 638 N.W.2d 604 (“[I]t is well settled that we
review a circuit court’s decision to impose sanctions, as well as the particular
sanction it chooses, for an erroneous exercise of discretion.”), but his argument
goes nowhere.

¶15 For legal support, M.W.P. relies solely upon Schultz, in which we
approved of the circuit court’s dismissal of Schultz’s lawsuit based upon Schultz’s
attempt to suborn perjury. Id., ¶14. In that case, we recognized that our supreme
court has identified dismissal as “a harsh sanction” and that the court “has held
that dismissal is proper only when the plaintiff has acted in bad faith or has
engaged in egregious misconduct.” Id., ¶9 (emphasis added).

¶16 The conduct of which M.W.P. complains was conduct by M.A., not
V.A. V.A., not M.A., is the petitioner and thus the party/“plaintiff” in this case.
M.W.P. has identified no case in which our courts have approved of the “harsh
sanction” of dismissal where the alleged wrongdoing was committed by a
nonparty just because the nonparty may desire the same outcome as the
plaintiff/petitioner. Furthermore, M.W.P. has not directed us to any evidence in
the record, and we have not been able to find any, indicating V.A. engaged in any
bad faith or egregious misconduct whatsoever, or that she even encouraged or in
any way supported M.A.’s conduct of which M.W.P. complains. Thus, M.W.P.
has provided us with no basis upon which to conclude the circuit court erred in
declining to dismiss V.A.’s petition because of M.A.’s conduct.

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No. 2019AP1098

Failure to Give Sufficient Weight to M.A.’s Misconduct and the GAL’s
Recommendation

¶17 M.W.P. also asserts the circuit court erred by giving insufficient
weight to the “misconduct” of M.A. and to the recommendation of the GAL with
regard to terminating M.W.P.’s parental rights. The court did not err.

¶18 On this point, M.W.P. merely invites us to reweigh the evidence
presented to the circuit court. He cites heavily to the recommendation of the GAL
because the GAL indicated it is in the best interests of E.W.P. to not terminate
M.W.P.’s parental rights. M.W.P. conclusorily asserts the court should have given
more weight to the GAL’s recommendation and “the uncertainties about M.A. as
an adoptive parent as exhibited by his litigation behavior.” However, the weight
given to presented evidence is left largely to the fact finder, here the circuit court.
See Jacobson v. American Tool Cos., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct.
App. 1998) (court of appeals “will accept the circuit court’s determination as to
weight and credibility” of the evidence). The court considered the appropriate
statutory factors, as well as the GAL’s recommendation and M.A.’s “misconduct,”
and thereafter made a rational decision. To prevail on appeal, M.W.P. must
demonstrate how the circuit court erroneously exercised its discretion, not just that
M.W.P. prefers a different result and views the evidence differently than the
court.3 See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899
N.W.2d 381 (It is an appellant’s burden to demonstrate that the circuit court

3
M.W.P. appears to make several “mini-arguments” throughout his appellate briefing.
To the extent he makes such arguments, we are unpersuaded and do not address them as they are
insufficiently developed and M.W.P. does not support them with legal authority. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (holding that “[w]e may
decline to review issues inadequately briefed” and “[a]rguments unsupported by references to
legal authority will not be considered”).

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No. 2019AP1098

erred.). M.W.P. fails to demonstrate that the court erroneously exercised its
discretion.

By the Court.—Order affirmed.

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

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