State v. R. T.

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 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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 Nos.
2023AP1095 Cir. Ct. Nos. 2021TP126
2021TP127
2023AP1096
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

R. T.,

RESPONDENT-APPELLANT.
Nos. 2023AP1095
2023AP1096

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

R. T.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.

¶1 WHITE, J.1 Richard appeals the orders terminating his parental
rights to his son, Adam, and his daughter, Annie.2 Richard argues that the circuit
court erroneously exercised its discretion when it concluded that terminating his
parental rights was in the best interests of the children because he asserts there was
not support in the record for the court’s conclusions. Upon review, we affirm.

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.
2
For ease of reading and to maintain confidentiality, we employ pseudonyms for the
children and parents in this case. See WIS. STAT. RULE 809.86(1). Additionally, although there
is an appeal and order for each child, we refer to the case in the singular for ease of reading.

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BACKGROUND

¶2 In May 2020, the Division of Milwaukee Child Protective Services
(DMCPS) detained Adam, born in May 2013, and Annie, born in April 2014, then
ages seven and six, when they were found in a non-moving car with their parents
passed out. Richard and Joanna had ongoing drug problems and repeated
interactions with DMCPS and the police. In May 2021, the State filed the petition
to terminate Richard and Joanna’s parental rights.3 The petition for the
termination of parental rights (TPR) alleged two grounds: continuing child in
need of protection of services (CHIPS), and failure to assume parental
responsibility.

¶3 On July 1, 2022, Richard entered a no contest plea to the ground of
continuing CHIPS. The State relied upon the case manager’s testimony to prove
the ground of the petition; accordingly, the court found Richard unfit.

¶4 In November 2022, the court held the dispositional phase of the case
over two days. The State called the children’s foster mother and the case manager
to testify. The case manager testified that the children had gone on several visits
with Richard’s mother; but each child expressed that they did not want to be
placed to live with their grandmother. The case manager testified that the children
had not been in contact with Richard since June 2021, but that he had written them
a letter. She testified that the paternal grandmother was deemed safe for visits in
her home, she was interested in placement with the children, and she was willing
to move to a larger residence if the children were placed with her. Richard and

3
The State also petitioned to terminate the parental rights of the children’s mother,
Joanna. Her case is not on appeal before this court.

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Joanna each testified on their own behalf.4 Richard’s counsel called his mother
and his sister to testify.

¶5 At the final hearing date in February 2022, the court addressed the
statutory considerations of WIS. STAT. § 48.426(3)5 related to the termination of
parental rights. For the first two factors, the court found that the children were
“likely to be adopted” if the TPR were granted and there did “not appear to be any
age or physical or psychological barriers” to either child being adopted by the
foster parents.

4
In January 2022, Richard participated in three supervised visits with the children.
Richard had been released from incarceration, where he had been held since shortly after the
petition was filed. However, Richard relapsed, stole his sister’s car, and was returned to jail,
where he participated in the final day of the dispositional phase in February 2022.
5
In determining the disposition of a TPR petition, 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).

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¶6 Next, the court addressed how long the children had been removed
from their parents’ care, under WIS. STAT. § 48.426(3)(e). The court found that
the children had been removed from their parents’ care in May 2020, when the
children were ages seven and six, and remained in out-of-home care since then.
The court considered the removals from the parents to have been “a significant
amount of time” because even a year or two was significant at their young ages.
The court also noted that the children had previously been removed in 2014 due to
their parent’s drug addictions and reunified in 2015. The court found that the
parents had lost two older children to termination.

¶7 The court noted that after an eviction in October 2019, the family
moved in with Richard’s mother, who appeared not to recognize the parents’ drug
problems. The court observed that while Richard said his mother said to let her
keep the children when they moved out, she did not testify to that fact nor did a
letter she wrote to the court concerning the case state that request. The court
expressed concern that Richard’s mother knew that her son and the children had
no place to live other than a car, but she did not seek help from CPS. The court
observed that Richard’s mother “should have known” about the drug issues and
the risks.

¶8 Next, the court found that pursuant to the considerations of WIS.
STAT. § 48.426(3)(c), the children did not have a significant relationship with their
parents “because of drugs and other things got in the way to have a significant or
substantial relationship[.]” The court noted that Richard “got himself incarcerated
and that [took] him away from his children” and that “[n]either parent made
themselves available for services and visitation for a significant amount of time.”
The court expressed that it was good Richard had recently had a visits with the
children, but he is struggling with addiction “and he needs help but while he needs

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help, his children need stability.” The court found that “the relationship [the
children] have with each other is the most significant relationship” and they are
together at the foster placement. They know their parents and their paternal
grandmother, and it hoped that the foster parents can maintain relationships for the
children with their biological family members. The court found that because
neither child had a significant relationship with either parent, severing the legal
relationship would not harm the children.

¶9 Next, the court addressed the wishes of the children, pursuant to
WIS. STAT. § 48.426(3)(d). Adam, now aged nine, and Annie, aged eight,
expressed to the case manager that they wished to stay with the foster parents and
not live with their grandmother. Adam and Annie had “a significant bond with the
caregivers and it appears [they have] adjusted well in their home. I want to say to
[Adam and Annie] that the Court hears [them] and has heard what [they] had to
say.

¶10 For the final factor under WIS. STAT. § 48.426(3)(f), the court found
that the children would be “able to enter into a stable and permanent family
relationship” if the TPR were granted because without that, the children “would
languish in foster care” because neither Richard nor Joanna were “close to meeting
their conditions for safe return of the children to their home[.]” The court
considered that the parents are still dealing with drug issues. Further, the court
concluded that because the parents had gone through a previous TPR case, they
were aware of the stakes of these proceedings.

¶11 The court concluded that it was in the best interests of the children
that the parental rights of both Richard and Joanna be terminated. This appeal
follows.

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DISCUSSION

¶12 Richard argues that there was no support in the record for the court’s
finding that it was in the children’s best interests that his parental rights be
terminated. He contends that the court did not sufficiently account for the fact that
he continues to express love and a desire to have his children returned to this care
when he is released from incarceration or to have the children move to his family’s
care. He argues that the court did not give sufficient weight to the efforts he
previously made to improve his circumstances and his efforts to continue as a
significant factor in his children’s lives.

¶13 Termination of parental rights is governed by the Wisconsin
Children’s Code. The first step is a fact-finding hearing to determine whether the
grounds exist to terminate parental rights exist. See WIS. STAT. §§ 48.415, 48.424.
Here, Richard pled no contest that the State could prove the continuing CHIPS
ground. The second step is the dispositional phase, in which the circuit court
decides whether the evidence warrants the termination of parental rights and if the
termination is in the best interests of the child. Evelyn C.R. v. Tykila S., 2001 WI
110, ¶23, 246 Wis. 2d 1, 629 N.W.2d 768. “During this step, the best interests of
the child are paramount.” Id. The circuit court is required to consider at least the
six factors for consideration in WIS. STAT. § 48.426(3). “[T]he record should
reflect adequate consideration of and weight to each factor.” State v Margaret H.,
2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475.

¶14 “The ultimate determination of whether to terminate parental rights
is discretionary with the circuit court.” Id, ¶27. We will sustain a circuit court’s
discretionary decision unless the court erroneously exercised its discretion. WIS.
STAT. § 805.17(2). “A circuit court properly exercises its discretion when it

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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 County DHS v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828
N.W.2d 198.

¶15 Richard’s first argument is that the record does not support the
court’s findings. We disagree. The circuit court carefully reviewed and
considered on the record the six statutory factors and the overarching question of
the best interests of the children. The court considered that the children were
adoptable and that the foster parents were ready to adopt them. The court
considered that Richard’s drug addiction and resulting incarceration meant that the
children had been separated from him for several years. The court considered that
the children expressed a desire to be adopted by their current foster parents and not
be placed with their paternal grandmother. The court stated in the record directly
to the children “that the [c]ourt hears [them] and has heard what [they] had to say”
about their placement. The court considered that the children would most likely
languish in foster care if the TPR were not granted. We concluded there was
ample support in the record for the court’s decision.

¶16 Richard next argues that the court did not sufficiently account for his
love for his children and his desire for their return when he was out of jail. A
parent’s love is not the defining question when the court contemplates terminating
parental rights. Although “parent’s rights are paramount,” in the grounds phase,
Evelyn C.R., 246 Wis. 2d 1, ¶22, Richard does not argue that the grounds phase
for the TPR was not satisfied. The court was not being asked to determine
Richard’s love and desire to be with his children, but instead, “one of the most
wrenching and agonizing [decisions] in the law”—whether termination is in the
children’s best interests. Sheboygan Cnty. v. Julie A.B., 2002 WI 95, ¶¶23, 29,

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255 Wis. 2d 170, 648 N.W.2d 402. Richard’s argument fails because it subverts
the question asked of the court.

¶17 Further, Richard argues that the court did not give weight to his
desire to have his mother or sister gain custody or placement of the children. Our
examination of the record shows that the circuit court had concerns about when
Richard’s mother’s awareness of the parents’ drug addition prior to the detainment
of the children in May 2020, her willingness to take care of the children when
there was DMCPS contact in March 2020, and his mother’s failed guardianship of
Richard’s older child in about 2009-2010. The record reflects that the court
expressed hope that the foster/adoptive parents would continue to maintain a
relationship with the children’s extended family. We conclude that the circuit
court’s considerations were based in the children’s best interests and that
Richard’s desires have no legal basis to overcome the court’s considerations.

¶18 Finally, Richard argues that the court did not give sufficient weight
to the efforts he previously made to improve his circumstances and his efforts to
continue as a significant factor in his children’s lives. Again, we conclude that
Richard asks the court to center his interests, not his children’s. Wisconsin law
does not “mandate the relative weight” to be on any particular factor. Margaret
H., 234 Wis. 2d 606, ¶29. The reviewing court’s function is to ensure each factor
was considered, not to weigh the factors in our own substituted judgment. Here,
the circuit court acknowledged Richard’s struggles with drug addiction, an illness
that has taken him from his children. However, the court also found the children’s
need for stability and the children’s wishes to weigh heavily in favor of
termination being in the children’s best interests. We discern no reason in the
record or the law to disturb the court’s findings.

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CONCLUSION

¶19 For the reasons stated above, we conclude that the circuit court’s
order terminating Richard’s parental rights was not an erroneous exercise of
discretion and we affirm. We conclude that the record demonstrates that the court
considered the relevant facts raised in testimony and evidence, it applied the
proper standard of law, and it reached a reasonable decision showing rational
decision-making. See Mable K., 346 Wis. 2d 396, ¶39.

By the Court.—Orders affirmed.

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

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