Dane County DHS v. S. 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.
June 8, 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. 2023AP607 Cir. Ct. No. 2019TP66

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

DANE COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

S. M.,

RESPONDENT-APPELLANT.

APPEAL from order of the circuit court for Dane County:
NIA TRAMMELL, Judge. Affirmed.
No. 2023AP607

¶1 NASHOLD, J.1 S.M. appeals an order terminating her parental
rights to her son, W.R. III (“W.R.”). She argues that the circuit court erroneously
exercised its discretion in determining that termination is in W.R.’s best interests
because the court did not receive direct evidence from the proposed adoptive
parents. I reject this argument and affirm the circuit court order.

BACKGROUND

¶2 In 2016, when W.R. was approximately five years old, he was
adjudged to be in need of protection or services (“CHIPS”) and received
placement outside of his parental home. W.R. has remained in foster care since
that time, and at the time of the dispositional hearing in this matter, had resided
with the same foster parents for approximately six years.

¶3 In 2019, the Dane County Department of Human Services
(“Department”) petitioned for termination of both parents’ rights, alleging
“continuing need of protection or services” and “failure to assume parental
responsibility.” See WIS. STAT. § 48.415(2), (6). W.R.’s biological father
supported termination of his parental rights and adoption by W.R.’s foster parents.
Because this appeal involves only W.R.’s mother, I discuss W.R.’s biological
father only to the extent necessary to address the issues S.M. raises on appeal.

¶4 As to the grounds for terminating S.M.’s parental rights under WIS.
STAT. § 48.415(2), (6), the petition alleged, inter alia, that: W.R. has continued in
placement outside his parental home since 2016; the Department made reasonable

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2023AP607

efforts to provide services to S.M.; S.M. failed to meet the conditions for return of
W.R. to his parental home; S.M. did not have regular and successful interactions
with W.R. and police sometimes needed to be called during their visits; S.M. did
not cooperate with service providers; S.M. had been incarcerated multiple times
since W.R.’s placement outside the home, causing S.M. to miss in-person visits
with W.R.; S.M. only communicated with W.R.’s therapist once and did not reach
out to his school or medical providers; S.M. had only sporadic communication
with W.R. by phone or letter, due to her own refusal and because of threatening
behaviors over the phone toward W.R.’s foster parents.

¶5 During the grounds phase of the proceeding,2 the circuit court found
S.M. in default based upon her nonappearance at a scheduled hearing on
January 27, 2022. Accordingly, the court made a formal finding of unfitness at a
subsequent hearing. S.M. does not challenge either the default or unfitness
finding. Instead, this case concerns the dispositional phase of the proceeding.

¶6 S.M., pro se, initially appeared at the dispositional hearing but left
the courtroom prior to the evidentiary part of that hearing.3 The circuit court

2
There are two phases in a termination of parental rights proceeding: a “grounds” or
“unfitness” phase and a “dispositional” phase. Steven V. v. Kelley H., 2004 WI 47, ¶¶24-27, 271
Wis. 2d 1, 678 N.W.2d 856. At the grounds phase, the circuit court determines whether the
parent is unfit based on one of grounds listed in WIS. STAT. § 48.415. Steven V., 271 Wis. 2d 1,
¶¶24-25. If the parent is found unfit, the case proceeds to the dispositional phase, during which
the court determines if termination is in the best interests of the child. Id., ¶27.
3
Prior to leaving the courtroom, S.M. stated:

You know what, I got too much going on right now, too
much good. I’m getting ready to become a social worker in
Human Services. I’m almost done with school. I’m interning at
the Port St Vinny’s. I can’t go into my future like this. These
people got open cases on me. I’m not going back to jail for
nobody. You all can have [W.R.]. [W.R.] is 11 years old. He’ll
come back to me. I’m done. You all can have him. You all can
(continued)

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No. 2023AP607

proceeded with the hearing and took evidence, including testimony from the
Department social worker handling W.R.’s case. At the close of the evidence, and
after arguments from the Department and the guardian ad litem (“GAL”) in
support of termination, the court made findings with respect to W.R.’s best
interests, addressing the six factors in WIS. STAT. § 48.426(3). Based on the
evidence presented, the court terminated S.M.’s parental rights. S.M. appeals.

DISCUSSION

¶7 As stated, S.M. challenges only the dispositional phase of this
proceeding. During the dispositional phase of a termination proceeding, the
prevailing factor to be considered by the circuit court is the best interests of the
child. See Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶22, 255 Wis. 2d
170, 648 N.W.2d 402; WIS. STAT. § 48.424(3) (“The court shall decide what
disposition is in the best interest of the child.”). “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.” Davis S. v. Laura S., 179 Wis. 2d
114, 150, 507 N.W.2d 94 (1993). “A circuit court’s determination will not be
upset unless the decision represents an erroneous exercise of discretion.” Id.
“The [circuit] court’s findings of fact will not be set aside unless clearly

have him.… [Y]ou all want me to sign something before I leave?
I can sign something. I’m done. I’m done.

S.M. was pro se at the dispositional hearing because her counsel had withdrawn from
representing her. During the course of the termination proceedings, four successive attorneys
were appointed to represent S.M. but each withdrew. S.M. is again represented by counsel on
appeal.

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No. 2023AP607

erroneous.” Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d 855 (Ct.
App. 1996); see also WIS. STAT. § 805.17(2).

¶8 In considering the child’s best interests, the circuit court must
consider (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). Here, S.M. concedes that the court considered these
factors. That concession is appropriate, given the court’s extensive examination of
these factors, which I now discuss.

¶9 As to the first factor, the likelihood of W.R.’s adoption after
termination, the circuit court found that there were “no barriers to adoption” and
that the “likelihood of [W.R.] being adopted is very high through his current foster
placement.” The court noted the social worker’s testimony that the foster parents
“are willing to adopt the child and that it has been vetted and supported by the
State.”

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No. 2023AP607

¶10 Regarding the second factor, W.R.’s age and health at the time of
disposition and at the time he was removed from the home, the circuit court found
that W.R. “has been progressing normally with regard to his development and that
he is in good health at the time of the disposition.” Although the court did not
specifically mention W.R.’s age, the evidence showed that W.R. was five years
old when he was removed from S.M., was eleven years old at the time of the
dispositional hearing, and had been residing with the same foster family for six
years.

¶11 With respect to the third factor, whether W.R. has substantial
relationships with his parents or other family members and whether it would be
harmful to him to sever those relationships, the circuit court found the following.
Although W.R. has a relationship with both mother and father, “it is not a
substantial relationship.” W.R. “has a better relationship with his father” and
enjoys visits with his father, which the foster parents have helped facilitate.
Nevertheless, the father “indicated that he is supportive of [W.R.] being adopted,
and has vocalized that.” As to S.M., however, the court found that “there is a
tense relationship” between S.M. and W.R. that sometimes results in “a very
stressful environment” for W.R.; that W.R. “has indicated that things are less
stressful when he does not see his mother”; that not seeing S.M. has a positive
effect at his foster placement and at school; and that the reverse is true when he
engages with S.M. The court found that it would “not be harmful” to W.R. to
sever the relationships between him and S.M. and “it would likely be more
harmful for [W.R.] to have a relationship with [S.M.], based on the interactions
that they’ve had.” With regard to other family members, W.R. has had phone calls
with extended family, but “there is no indication that there is a substantial
relationship at all with any of his extended family.”

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No. 2023AP607

¶12 Regarding the fourth factor, W.R.’s wishes, the circuit court found
that approximately two and one-half to three years ago, W.R. “indicated through a
therapist that he wished to be adopted by his current foster parents” and that this
“has continued and remains his position, and that he wants to remain in the home
of the foster parents.”

¶13 As to the fifth factor, the duration of W.R.’s separation from the
parent, the circuit court found that it “has been six consecutive years since the
child has been living outside of the home,” which is “substantial.”

¶14 The circuit court also examined the sixth and final factor, whether
W.R. would be able to enter into a more stable and permanent family relationship
as a result of the termination, taking into account the conditions of his current
placement, the likelihood of future placements, and the results of prior placements.
As to the past and future placements, the court found that there were two prior
placements under the current CHIPS case4 before his current placement, and that
W.R. is an unlikely candidate for future placements.

¶15 As to his current placement, the circuit court again noted that there
are foster parents “who do want to adopt” W.R.; that the foster parents have two
other boys residing in their household with whom W.R. has “a natural and positive
relationship”; that W.R. was being raised in a farm environment and is “excited
about raising chickens on the farm”; and that W.R. is engaged in extracurricular
activities. The court further found that W.R. has his own room and “has
conversations with the foster parents about progressing and getting older and

4
As S.M. acknowledges, W.R. had a prior CHIPS case when he was four years old,
during which he was in placement for approximately four months.

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No. 2023AP607

being able to develop a level of independence.” The court found that the current
placement seems to be a “good fit” where W.R. “tends to thrive” and that “the
foster parents have been able to work with [W.R.] and counsel him through the
stresses of being in foster care and the tension that he has with his mother.” The
court found that there is “tension with the mother and when he is interacting with
the mother it has a tendency to d[y]sregulate him, as testified [to] by the social
worker,” and that it is “in the best interest of [W.R.] to sever that relationship.”

¶16 As stated, S.M. concedes that in determining W.R.’s best interests,
the circuit court considered the required factors in WIS. STAT. § 48.426(3). S.M.’s
sole argument on appeal is that the court erroneously exercised its discretion in
concluding that termination is in W.R.’s best interests because “there was no
evidence received from the proposed adoptive resources for W.R.,” namely,
W.R.’s foster parents. S.M. acknowledges that testimony was received through
the social worker regarding the foster parents’ desire and ability to adopt W.R., but
argues that this evidence is insufficient to support the court’s discretionary finding
as to W.R.’s best interests.

¶17 Significantly, S.M. cites no authority to support the argument that a
circuit court may not terminate parental rights in the absence of direct testimony or
other evidence from the prospective adoptive parents. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by
references to legal authority will not be considered.”). In fact, S.M.’s assertion is
negated by WIS. STAT. § 48.426(3), which not only does not require such
evidence, but sets forth six factors that a court must consider in determining the
child’s best interests, none of which must be accorded more weight than another,
and only two of which are relevant to the likelihood of adoption: para. (a), “[t]he
likelihood of the child’s adoption,” and para. (f), “[w]hether the child will be able

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No. 2023AP607

to enter into a more stable and permanent family relationship as a result of the
termination.” See § 48.426(3)(a), (f).

¶18 S.M. argues that the circuit court cannot “meaningfully” consider the
factors in WIS. STAT. § 48.426(3)(a) and (f) without testimony or other evidence
directly from the proposed adoptive parents. S.M. fails to offer any developed
argument as to why the social worker’s testimony cannot serve to support the
court’s findings with respect to these factors. As to para. (a), the social worker
testified, and the court found, that the likelihood of W.R.’s adoption was “very
high” and that W.R.’s foster parents had been approved to adopt. Regarding
para. (f), the social worker testified that, as a result of termination, W.R. would be
able to enter into a more permanent and stable family relationship; would have
legal permanence; would no longer have the “d[y]sregulating” interactions with
S.M. or have to deal with social workers and social service specialists; and would
instead “just have normalcy and calm in his life.” Thus, the court had ample
evidence to support its findings regarding these two factors.

¶19 In addition, during the GAL’s oral recommendation in favor of
termination, the GAL noted that W.R.’s foster parents are “committed to” W.R.,
“ready, willing, and able,” and “approved for the adoption.” The GAL further
stated, “I don’t think that there is any question that he will be adopted.” S.M. has
not established that the circuit court erroneously exercised its discretion in making
its findings on these factors without testimony or other evidence directly from the
prospective adoptive parents.

¶20 S.M. further asserts that, without testimony or other evidence
directly from the prospective adoptive parents themselves, the circuit court did not
have information regarding what S.M.’s “daily life would look like in terms of

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No. 2023AP607

housing, education, medical care, nutrition, transportation and financial support,”
nor did it have information regarding the prospective adoptive parents’ ages,
health, or source of income. Again, S.M. offers no authority even suggesting that
such information is required in a termination proceeding, likely because no such
authority exists.5

¶21 In sum, I conclude that S.M.’s sole challenge to the circuit court’s
termination order is without merit. I therefore affirm the court’s order.

By the Court.—Order affirmed.

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

5
In her reply brief, S.M. raises several new arguments challenging the social worker’s
testimony related to the foster parents adopting W.R.—namely, assertions based on hearsay, the
right to confront witnesses, and due process. I do not consider these arguments because they
were not raised in S.M.’s brief-in-chief and, given S.M.’s decision to leave the hearing, were
likewise not raised in the circuit court. See State v. Reese, 2014 WI App 27, ¶14 n.2, 353 Wis. 2d
266, 844 N.W.2d 396 (“This court need not address arguments that are raised for the first time on
appeal, or … raised for the first time in the reply brief.”). These arguments may also be rejected
on the basis that they are undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App 1992) (this court need not address undeveloped arguments).

10