Adoptions of Wisconsin, Inc. v. N. R. 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 27, 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. 2019AP1726 Cir. Ct. No. 2018TP8

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

ADOPTIONS OF WISCONSIN, INC.,

PETITIONER-RESPONDENT-CROSS-APPELLANT,

V.

N. R. K.,

RESPONDENT-APPELLANT-CROSS-RESPONDENT.

APPEAL and CROSS-APPEAL from orders of the circuit court for
Outagamie County: JOHN A. DES JARDINS, Judge. Order affirmed;
cross-appeal dismissed.
No. 2019AP1726

¶1 SEIDL, J.1 Noah appeals a circuit court order terminating his
parental rights to his daughter, Natalie, based on the petition of an organization
called Adoptions of Wisconsin, Inc.2 Noah argues the court erred by determining
that grounds exist for the termination of his parental rights due to his failure to
assume parental responsibility under WIS. STAT. § 48.415(6). Adoptions of
Wisconsin cross-appeals, asserting: (1) the court erred in reopening the
termination of parental rights (TPR) case to allow Noah to contest the termination
of his parental rights; and (2) the court erred in determining that Adoptions of
Wisconsin failed to prove that grounds existed to terminate Noah’s parental rights
due to his abandonment of Natalie under § 48.415(1).

¶2 We agree with the circuit court’s determination that Noah failed to
assume parental responsibility for Natalie. Therefore, we affirm the order
terminating his parental rights to her. Because we affirm the TPR order on this
ground, we need not address the issues Adoptions of Wisconsin raises in its
cross-appeal. Accordingly, we dismiss the cross-appeal.

BACKGROUND

¶3 Noah and Kristin were unmarried but in a relationship when Noah
learned that Kristin was pregnant with their child in June 2017. Noah knew that
the child’s approximate due date was at the end of January 2018. Noah and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
For ease of reading, we use pseudonyms to refer to the parents and their child. See
WIS. STAT. RULE 809.19(1)(g).

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No. 2019AP1726

Kristin ended their relationship in October 2017, and they tried unsuccessfully to
reconcile in November 2017. After November 2017, Noah and Kristin had no
contact with each other.

¶4 Natalie was born on January 17, 2018. Shortly thereafter, Kristin
placed Natalie with an adoptive family. On January 30, 2018, Adoptions of
Wisconsin petitioned to terminate Kristin’s parental rights, to which she
consented.3 Adoptions of Wisconsin also petitioned to terminate the parental
rights of Natalie’s genetic father, whose exact identity was unknown to Adoptions
of Wisconsin at the time. The TPR petition listed neither Noah’s last name nor his
address because Kristin told Adoptions of Wisconsin that she did not know this
information. Consequently, the circuit court ordered that notice of the TPR
hearing be published in newspapers of cities where Noah may have resided.
Adoptions of Wisconsin would later discover, however, that Kristin had
purposefully withheld knowledge of Noah’s last name.

¶5 The initial TPR hearing was held on February 26, 2018. The circuit
court terminated Kristin’s parental rights and the parental rights of any unknown
birth fathers.

¶6 On April 16, 2018, Noah, pro se, initiated paternity proceedings in
Winnebago County and filed a declaration of his paternal interest in Natalie there.
At a subsequent hearing in Winnebago County on June 27, 2018, Noah learned
that his parental rights to Natalie had been terminated. He also learned that
Adoptions of Wisconsin had guardianship over Natalie pending her adoption.

3
The parental rights of Natalie’s mother, Kristin, are not at issue in this appeal.

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No. 2019AP1726

Because Noah had no parental rights to Natalie at the time of the hearing, the
Winnebago County circuit court dismissed Noah’s paternity case.

¶7 On July 5, 2018, Noah filed an affidavit and other supporting
documents in the Outagamie County circuit court requesting that a paternity test
be arranged and that Natalie’s adoption not be finalized before the paternity test
occurred. The court construed Noah’s filings as a motion to reopen the case, and
it held a hearing on the matter on July 18, 2018. The court granted Noah’s
requests and ordered the case “reopened” for the limited purpose of determining
whether Noah was Natalie’s genetic father. The court also ordered that Natalie’s
adoption be delayed pending the paternity test. A paternity test subsequently
proved that Noah was Natalie’s genetic father.

¶8 The circuit court held a review hearing on August 29, 2018. Noah
appeared pro se, and both Natalie’s guardian ad litem and Adoptions of Wisconsin
argued against reopening the case. In a written decision and order, the court
vacated the February 26, 2018 TPR orders and reopened the case. The court
concluded that Kristin “unnecessarily complicated this case” when she failed “to
provide more information about [Noah] than his first name and physical
description” to Adoptions of Wisconsin when it initially petitioned for TPR in
January 2018.

¶9 On October 5, 2018, Adoptions of Wisconsin filed amended TPR
petitions alleging that grounds existed to terminate Noah’s parental rights under
WIS. STAT. § 48.415(1), abandonment, and § 48.415(6), failure to assume parental
responsibility. Noah contested the termination of his parental rights. Kristin again
consented to the termination of her parental rights. Noah then retained counsel,

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No. 2019AP1726

and on November 16, 2018, he moved for a formal adjudication of paternity,
which the circuit court later granted.

¶10 On December 10, 2018, Adoptions of Wisconsin moved for partial
summary judgment on both of the petitioned grounds. The circuit court denied
Adoptions of Wisconsin’s motion, and on January 16, 2019, the court held a
fact-finding hearing on the grounds phase of the TPR proceedings.

¶11 Thereafter, the circuit court issued a written decision and order
concluding that Noah had failed to assume parental responsibility of Natalie and
that grounds existed to terminate his parental rights under WIS. STAT. § 48.415(6).
The court found that even though the prior February 2018 TPR order terminated
Noah’s parental rights, it “did not prevent him from continuing to seek a
relationship with [Natalie]. This is especially so in this case when [Noah] was not
aware that his rights had been terminated until his paternity action in Winnebago
County was dismissed in June 2018.” The court further found that

[e]ven if the Court does only consider [Noah]’s actions
after [this case was reopened on] September 21, 2018,
[Noah] has failed to show that he has assumed parental
responsibility over [Natalie]. While [Noah] has asserted
his rights to [Natalie,] he has made no effort to
communicate with her or her caregivers. He has not
inquired about her daily care or possible needs. He has
provided no support since he broke up with [Kristin]. As
the GAL stated in his recommendations, [Noah]’s efforts
have been “limited at best.”

¶12 The circuit court acknowledged that Noah took some steps to
prepare for Natalie’s birth and for reunification if his rights were not terminated.
Nonetheless, it found that

[a]ll of [Noah]’s activities have been along the lines of
waiting for [Natalie] to be given to him. He has not
actively sought his daughter out to pursue a parental

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No. 2019AP1726

relationship with her. Because of [Noah]’s inaction, the
Court cannot find that he accepted and exercised
“significant responsibility for the daily supervision,
education, protection and care” of [Natalie].

The court, however, found that Adoptions of Wisconsin had failed to prove that
Noah abandoned Natalie as defined by statute.

¶13 A dispositional hearing was held on March 29, 2019. The circuit
court determined that terminating Noah’s parental rights to Natalie was in her best
interest. Accordingly, the court entered an order terminating Noah’s parental
rights, which he now appeals. Adoptions of Wisconsin cross-appeals, alleging that
the court erred in reopening the TPR case and in finding that Noah had not
abandoned Natalie. Additional facts are provided below.

DISCUSSION

¶14 The sole argument Noah raises on appeal is that the circuit court
erred at the grounds phase by concluding that he failed to assume parental
responsibility of Natalie under WIS. STAT. § 48.415(6). The interpretation of
§ 48.415(6) and the application of that statute to a given set of facts are questions
of law that we review independently. Tammy W-G. v. Jacob T., 2011 WI 30, ¶16,
333 Wis. 2d 273, 797 N.W.2d 854. However, we will not set aside a circuit
court’s factual finding unless it is clearly erroneous, and we defer to the court on
its credibility determinations. State v. Raymond C., 187 Wis. 2d 10, 14, 522
N.W.2d 243 (Ct. App. 1994). The circuit court, not the appellate court, resolves
conflicts in the testimony, and we review the evidence in the light most favorable
to the findings made by the circuit court. Tang v. C.A.R.S. Prot. Plus, Inc., 2007
WI App 134, ¶19, 301 Wis. 2d 752, 734 N.W.2d 169.

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No. 2019AP1726

¶15 Failure to assume parental responsibility is “established by proving
that the parent or the person or persons who may be the parent of the child have
not had a substantial parental relationship with the child.” WIS. STAT.
§ 48.415(6)(a). Paragraph (b) defines a “substantial parental relationship” as:

[T]he acceptance and exercise of significant responsibility
for the daily supervision, education, protection and care of
the child. In evaluating whether the person has had a
substantial parental relationship with the child, the court
may consider such factors, including, but not limited to,
whether the person has expressed concern for or interest in
the support, care or well-being of the child, whether the
person has neglected or refused to provide care or support
for the child and whether, with respect to a person who is
or may be the father of the child, the person has expressed
concern for or interest in the support, care or well-being of
the mother during her pregnancy.

Sec. 48.415(6)(b). Adoptions of Wisconsin, as the TPR petitioner, has the burden
of proving Noah’s failure to assume parental responsibility by clear and
convincing evidence. See WIS. STAT. § 48.31(1).

¶16 In Tammy W-G., our supreme court explained that “a fact-finder
must look to the totality-of-the-circumstances to determine if a parent has assumed
parental responsibility.” Tammy W-G., 333 Wis. 2d 273, ¶22. Specifically, the
fact-finder should consider a parent’s actions throughout the entirety of the child’s
life, which includes the time when the child was in utero. Id. & n.7. The
fact-finder should also consider the “reasons why a parent has not supported or
cared for” the child. Id., ¶32.

¶17 The circuit court’s findings of fact are not clearly erroneous. It
found that Noah demonstrated some willingness to assume parental responsibility
prior to Natalie’s birth, such as by accompanying Kristin to doctor’s visits and
preparing his home for Natalie’s arrival. See id., ¶22 & n.7. The court also

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No. 2019AP1726

acknowledged that Kristin created some barriers for Noah to be involved in
Natalie’s life. See id., ¶32. Kristin consistently failed to respond to Noah’s
communications to her, and her untruthfulness about knowing Noah’s last name
when the original TPR petitions were filed in January 2018 hindered his ability to
contest the original TPR petition.

¶18 Nonetheless, the circuit court found that Noah had only “asserted his
rights to” Natalie instead of making an effort to communicate with Natalie or her
caregivers after Natalie’s birth. Noah’s actions were “along the lines of waiting
for [Natalie] to be given to him. He has not actively sought his daughter out to
pursue a parental relationship with her.” Further, the court found that Noah’s
efforts have been “limited at best”—he did not inquire about Natalie’s daily care
or possible needs, and he had not supported Kristin after October 2017 while she
was pregnant with Natalie. The record supports the court’s findings of fact, and
we therefore conclude that the court’s findings of fact are not clearly erroneous.

¶19 Noah argues that “it was clearly erroneous [for the circuit court] to
conclude that [Adoptions of Wisconsin] established by clear and convincing
evidence that [Noah] had failed to assume parental responsibility.” For support,
he cites to favorable facts in the record or from his testimony in an attempt to
argue that he acted “with reasonable diligence” in locating Natalie after her birth
so that he could become involved in her life. Noah’s argument, however, is
flawed because he relies primarily upon facts not found by the court. This is
problematic because he makes no discernible argument that the court’s factual
findings were clearly erroneous. Instead, Noah argues that the court’s conclusion
of law is clearly erroneous, but that is the incorrect standard of review. We review
independent of the circuit court whether a TPR petitioner established by clear and
convincing evidence the ground it petitioned for, Tammy W-G., 333 Wis. 2d 273,

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No. 2019AP1726

¶16, while relying upon the circuit court’s findings of historical fact, Raymond C.,
187 Wis. 2d at 14. For these reasons, Noah’s argument lacks merit.

¶20 Upon our independent review of the facts as found by the circuit
court, we conclude the court properly determined that Noah failed to assume
parental responsibility of Natalie because he lacked an “acceptance and exercise of
significant responsibility for the daily supervision, education, protection and care”
of her. See WIS. STAT. § 48.415(6)(b) (emphasis added); see also Tammy W-G.,
333 Wis. 2d 273, ¶25. Accordingly, we affirm the TPR order terminating his
rights to her. We dismiss Adoptions of Wisconsin’s cross-appeal because we
affirm the court’s decision to terminate Noah’s parental rights. See Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (observing that an
appellate court needs only to resolve dispositive issues).

By the Court.—Order affirmed; cross-appeal dismissed.

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

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