State v. M. K.

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.
December 3, 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. 2019AP1564 Cir. Ct. No. 2018TP55

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

M. K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
GWENDOLYN G. CONNOLLY, Judge. Affirmed.
No. 2019AP1564

¶1 BRASH, P.J.1 M.K. appeals an order of the trial court terminating
his parental rights of M.K., Jr. M.K. asserts that the court erroneously exercised
its discretion in terminating his parental rights because its factual findings are not
supported by the record. We affirm.

BACKGROUND

¶2 M.K. is the adjudicated father of M.K., Jr., who was born January
18, 2013. M.K., Jr. has significant physical health issues—cardiomyopathy and
reactive airway disease—for which he takes four different medications, two times
each day, and has a prescribed inhaler. He has medical appointments at various
clinics every six months due to his condition, and also receives an echocardiogram
every six months. M.K., Jr. also has mental health issues: he has been diagnosed
with an anxiety disorder, and has behavioral issues for which he receives weekly
therapy.

¶3 M.K., Jr. was removed from the home of his mother, C.M.,2 in
October 2016, when he was approximately three-and-a-half years old. At that
time, M.K. was incarcerated at the Milwaukee Secure Detention Facility for a
misdemeanor conviction for child neglect stemming from an incident in July 2016,
when he left M.K., Jr. home alone for several hours. M.K. and C.M. were also
involved in a domestic violence incident in September 2015, which resulted in a
no contact order with C.M. Consequently, all of M.K.’s contact with M.K., Jr.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statues are to the 2017-18 version unless otherwise noted.
2
C.M. was named in this action as well, and her parental rights were also terminated as a
result of these proceedings. She filed a separate appeal, 2019AP1483, in which we upheld the
order terminating her parental rights.

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No. 2019AP1564

required a chaperone. Additionally, M.K. has a felony burglary conviction from
September 2014.

¶4 M.K., Jr. was removed from C.M.’s care due to continuing concerns
regarding his medical care. In October 2015, the Division of Milwaukee Child
Protective Services (DMCPS) had received a referral about M.K., Jr. missing
appointments at Children’s Hospital. Additionally, it was also observed by health
care providers that M.K., Jr. was regularly missing medication doses. The family
was provided with intensive in-home services to assist with taking M.K., Jr. to
appointments, giving him his medications in a timely manner, and getting those
prescriptions refilled regularly. However, it was found that M.K., Jr. was still
missing appointments and not consistently getting his medications.

¶5 The in-home services program was for a limited term. Extensions
were granted due to continuing concerns about the consistency of M.K., Jr.’s care
by C.M. The health care workers involved in M.K., Jr.’s case stressed to C.M.
how important it was for M.K., Jr. to receive his medications regularly and attend
all of his appointments as scheduled—he may eventually need a heart transplant,
and inconsistent care could negatively impact his ability to receive one. Even
when Children’s Hospital arranged for transportation for M.K., Jr.’s appointments,
there were multiple occasions where M.K., Jr. was not at home when the driver
arrived.

¶6 As a result, M.K., Jr. was removed from the home and put into foster
care. A petition for a Child in Need of Protection and Services (CHIPS) was filed
in October 2016, with a dispositional order issued in February 2017. The order
required that M.K. manage his mental health issues; that he not commit any
further crimes, and follow through with any pending criminal charges; that he not

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No. 2019AP1564

allow or commit any violent acts in front of M.K., Jr.; and that he and C.M. were
to meet all of M.K., Jr.’s special needs—including all of his medical needs—on a
daily basis. To meet these requirements, DMCPS was to provide services such as
a psychological evaluation, individual therapy, domestic violence programming,
and parental programming. M.K. was also required to have regular visitation with
M.K., Jr.

¶7 M.K. failed to meet these requirements. He did not attend an
appointment to start therapy, stating that he “[did] not want to bring up the past.”
He participated in domestic violence counseling and a fatherhood program, but the
providers noted that he was not fully engaged and instead seemed to be attending
simply to “check a box[.]” He failed to attend all of M.K., Jr.’s medical and
therapy appointments. He also did not visit M.K., Jr. regularly, sometimes
confirming a visit and then failing to show up, which greatly upset M.K., Jr.

¶8 As a result, a petition for the Termination of Parental Rights (TPR)
of M.K. with regard to M.K., Jr. was filed on March 29, 2018. In the petition, the
State alleged two grounds for termination: (1) M.K., Jr.’s continuing need of
protection or services, pursuant to WIS. STAT. § 48.415(2); and (2) M.K.’s failure
to assume parental responsibility, pursuant to § 48.415(6).

¶9 The matter was scheduled for a jury trial on November 5, 2018;
however, on that day M.K. decided that he wanted to enter a no contest plea to the
ground of failure to assume parental responsibility. The court accepted his plea
and the matter was set on for a contested dispositional hearing.

¶10 That hearing was held on March 28, 2019, and continued on May 17,
2019. The trial court found that M.K. had not “followed through” on numerous
issues set forth in the petition: he did not attend all of M.K., Jr.’s medical

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No. 2019AP1564

appointments; he did not consistently attend his scheduled visits with M.K., Jr.;
and he failed to complete the services provided by DMCPS as required. The court
further noted that M.K. did not attend any school visits for M.K., Jr. and
“essentially has not been involved in any other aspects of [M.K., Jr.]’s life.”

¶11 Additionally, the trial court observed that M.K., Jr.’s current
placement was an adoptive resource with whom he had a “significant
relationship[.]” The court further noted that if the parental rights of M.K., Jr.’s
parents were not terminated, it is likely that he would “continue[] to be placed
outside the parental home in light of the fact that his parents heretofore have not
been able to demonstrate really the degree of consistency and substantial
relationship of parenting him.” Thus, termination would allow M.K., Jr. “to enter
into a more stable and permanent relationship.” For those reasons, the court held
that it was in the best interests of M.K., Jr. to terminate the parental rights of M.K.
as well as C.M. This appeal follows.

DISCUSSION

¶12 On appeal, M.K. argues that the trial court erroneously exercised its
discretion in terminating his parental rights because the record does not support
the court’s factual findings. “The ultimate determination of whether to terminate
parental rights is discretionary with the [trial] court.” State v. Margaret H., 2000
WI 42, ¶27, 234 Wis. 2d 606, 610 N.W.2d 475. We will uphold the trial court’s
decision to terminate parental rights “if there is a proper exercise of discretion.”
See id., ¶32. This requires that the trial court apply the correct standard of law to
the facts of the case. Id.

¶13 In making its determination, “the best interests of the child is the
paramount consideration” for the trial court. Id., ¶33. To establish this, the trial

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No. 2019AP1564

court should reference the factors set forth in WIS. STAT. § 48.426(3), and any
other factors it relied upon, in explaining on the record the basis for the
disposition. Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d
170, 648 N.W.2d 402.

¶14 Here, M.K. is not arguing that the trial court failed to properly
consider the statutory factors; instead, he argues that the court’s factual findings
are not supported by the record. First, M.K. asserts that the court mistakenly
stated that M.K., Jr. had been taken into custody by DMCPS because M.K. had
left him alone—the incident that led to M.K.’s child neglect conviction. The court
noted this incident in the context of its consideration of the second statutory factor:
the age and health of the child at the time he was removed from the home and at
the time of disposition. See WIS. STAT. § 48.426(3)(b).

¶15 In its discussion, the trial court seemed to suggest that the conviction
was the impetus for M.K., Jr.’s detention, which is not accurate; as explained
above, M.K., Jr. was removed from the home due to ongoing concerns regarding
his medical care. Nevertheless, at the time M.K., Jr. was taken into custody, M.K.
was in fact incarcerated for the child neglect conviction relating to M.K., Jr. That
incident had occurred approximately three months prior to M.K., Jr.’s detainment,
when M.K., Jr. was three years old. Therefore, we conclude that M.K.’s
conviction was a relevant consideration with regard to the factor regarding the age
and health of M.K., Jr. Thus, even though the court’s finding was not completely
factually accurate, it was not an erroneous exercise of discretion for the court to
consider M.K.’s conviction in determining the best interests of M.K., Jr.

¶16 Another factual error alleged by M.K. was the trial court’s finding
that M.K. had “not attended any school visits[.]” On the contrary, M.K. testified

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No. 2019AP1564

that he had gone to M.K., Jr.’s school and spoken with his teachers, which was
corroborated by the case manager, who confirmed that M.K. had visited
M.K., Jr.’s school.

¶17 The trial court made this remark in the context of considering
whether M.K., Jr. had a substantial relationship with M.K., the third statutory
factor. See WIS. STAT. § 48.426(3)(c). In making its findings, the court noted
several other things that M.K. had “not followed through on,” such as participating
in all of the services provided by DMCPS and attending all of M.K., Jr.’s medical
appointments. Moreover, the court stated that there were inconsistencies in his
visits with M.K., Jr., which the court noted was due in part to his incarceration.

¶18 M.K. points out that the case manager testified that he had
completed all of the required services with the exception of individual therapy, of
which he attended a total of four sessions. However, it was noted in the TPR
petition that the providers leading these programs felt that M.K. was not fully
engaged and instead had participated in the programs simply to “check a box[.]”

¶19 With regard to M.K., Jr.’s medical appointments, both M.K. and the
case manager testified that M.K. had attended the latest set of appointments that
had occurred in October 2018. Indeed, the trial court noted that M.K. “does
attend, although not all” of M.K., Jr.’s medical appointments, likely referencing
previous appointments.

¶20 The trial court also commented on M.K.’s visiting schedule with
M.K., Jr. The case manager stated that M.K. had attended eighty percent of his
scheduled visits over the life of the case, stating that “[t]here have been times
when he’s been very consistent and times when he’s been not so consistent.” The
case manager further observed that inconsistent parental visits cause great anxiety

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No. 2019AP1564

in M.K., Jr., to the extent that he becomes physically aggressive; for example,
after M.K. missed a visit just prior to the disposition hearing, M.K., Jr. was
suspended from school for behavioral issues.

¶21 In fact, the trial court noted that a “key” consideration for the
substantial relationship analysis was visitation. The court observed that despite
M.K., Jr. having been placed out of the home since October 2016—almost three
years from the time of the dispositional hearings—both M.K. and C.M. were still
required to have supervised visits with M.K., Jr., as opposed to progressing to
unsupervised or partially unsupervised visits, due to continued safety concerns
relating to tending to M.K. Jr.’s medical needs.

¶22 We therefore conclude that the trial court’s application of the
substantial relationship standard to these facts was a proper exercise of its
discretion. See Margaret H., 234 Wis. 2d 606, ¶32.

¶23 Furthermore, the trial court discussed other significant facts in this
case in applying the remaining best interest factors. With regard to the first
factor—the likelihood of adoption after termination—the court noted that M.K., Jr.
was currently placed with an adoptive resource with whom he had developed a
“significant relationship[.]” See WIS. STAT. § 48.426(3)(a). The court observed
that the wishes of M.K., Jr.—the fourth factor—are difficult to ascertain from a
six-year-old, but noted that he had indicated that he wanted “to stop moving;” he
had been in six different placements since being removed from his parents’ care in
October 2016. See Sec. 48.426(3)(d). The court also remarked that with regard to
the fifth factor—the duration of the separation of the child from the parent—
M.K., Jr. had not returned to the care of his parents since being detained by

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No. 2019AP1564

DMCPS, although he had seen them during visits, albeit inconsistently. See Sec.
48.426(3)(e).

¶24 With regard to the sixth factor, the likelihood of future placements,
the trial court noted that M.K., Jr. would likely remain in foster care if the TPR
petition was denied. His case manager had testified that this was accurate, due to
continuing concerns relating to the parents’ abilities to tend to M.K., Jr.’s medical
needs. Furthermore, the record indicates that at the time of the dispositional
hearing, M.K. had an open case for possession of methamphetamines from an
incident that occurred on November 7, 2018. He had also recently tested positive
for THC as part of his pretrial monitoring. Moreover, he is a registered sex
offender stemming from a juvenile adjudication, which had previously been a
barrier to his finding stable housing. These are all relevant facts relating to the
likelihood that M.K., Jr. would require continued placement in foster care.

¶25 In sum, despite some factual inaccuracies in the trial court’s
findings, the record overwhelmingly supports the court’s finding that it was in the
best interests of M.K., Jr. to terminate the parental rights of M.K. Therefore the
court properly exercised its discretion in doing so. See Margaret H., 234 Wis. 2d
606, ¶32. Accordingly, we affirm.

By the Court.—Order affirmed.

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

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