State v. L. I.

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.
August 3, 2021
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 Nos.
2021AP816 Cir. Ct. Nos. 2019TP47
2019TP48
2021AP817
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

APPEAL NO. 2021AP816

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

L.I.,

RESPONDENT-APPELLANT.
Nos. 2021AP816
2021AP817

APPEAL NO. 2021AP817

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

L. I.,

RESPONDENT-APPELLANT.

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

¶1 WHITE, J.1 L.I. appeals the circuit court orders terminating her
parental rights to her children, F.G. and R.G. L.I. argues that the court
erroneously weighed the children’s harm from severing the relationship with their
respective foster parents against the harm from severing the relationship with their
mother. We disagree that the court’s consideration of additional factors
constitutes an erroneous exercise of discretion, and accordingly, we affirm.

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-
20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
These cases were consolidated in May 2021.

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BACKGROUND

¶2 The State petitioned to terminate L.I.’s parental rights in March 2019
on the grounds of continuing CHIPS2 and failure to assume parental
responsibilities. F.G. was approximately twenty-six months old at the time of the
petition; she had been removed from L.I.’s care in September 2017 at seven
months old after she was taken to the hospital with bruises all over her body,
bleeding in the brain and in the eyes, and a lacerated liver. F.G. had been in the
physical care of her father, C.G., who was convicted of felony child neglect
because of F.G.’s injuries and who was incarcerated for approximately one year as
a result.3 R.G. was approximately one year old at the time of the petition; she had
been removed from L.I.’s care within days of her birth, before L.I. was discharged
from the hospital. Both children remained outside of the home after their removal.

¶3 After a trial in January 2021, the circuit court found that the State
proved by clear and convincing evidence that the grounds existed—namely
continuing CHIPS and failure to assume parental responsibility—to terminate
L.I.’s parental rights to F.G. and R.G. The court found that due to her intellectual
challenges, L.I. had the desire but not the ability to safely care for “the children’s
supervision, education, protection and care.” The court found L.I. unfit and
proceeded to the dispositional phase of the proceedings, which focuses on the best
interests of the child.

2
“CHIPS is the commonly used acronym to denote the phrase ‘child in need of
protection or services’ as used in the Wisconsin Children’s Code, chapter 48, Stats.” Marinette
Cnty. v. Tammy C., 219 Wis. 2d 206, 209 n.1, 579 N.W.2d 635 (1998).
3
C.G. is the father of both F.G. and R.G. His parental rights were also terminated in
these proceedings, his rights are not on appeal in this action, and we do not address C.G. any
further.

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¶4 In the dispositional phase, the State called K.K., the former case
manager assigned to the children, who managed the case from F.G.’s injuries in
September 2017 until September 2020. K.K. testified that L.I. had cognitive
disabilities. L.I. had difficulty attending scheduled appointments and was
discharged from several parenting education social service providers and visitation
supervisors for lack of attendance. K.K. testified that despite some difficulties
setting up visits, L.I. was consistent with visitation with F.G. until R.G. was born;
however, she had a difficult time with parenting during visitation, such as making
bottles or diapering F.G. K.K. testified that L.I. had supervised visitation with
F.G. and R.G. until her third child, C.G., Jr.,4 was born in November 2019, when
she again had a gap in visitation until about May 2020. L.I. continued to have
difficulties managing more than one child at a time during her visitation.

¶5 The State also called L.F., the current case manager assigned to the
children, who began managing the case in September 2020. L.F. testified that she
had not observed L.I. interact with the children because no supervised visitation
had occurred since she took over the case. Additionally, the State called one of
F.G.’s foster parents and one of R.G.’s foster parents

¶6 The court reviewed whether termination of parental rights was in the
best interests of F.G. and R.G. under the statutory factors in WIS. STAT. § 48.426.5

4
C.G., Jr. and a fourth child, L.I., Jr., born in October 2020, are not subject to this
action.
5
In considering the best interests of the child in the disposition of a termination of
parental rights petition, “the court shall consider but not be limited to the following” factors:

(a) The likelihood of the child’s adoption after termination.

(b) The age and health of the child….

(continued)

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The court considered the first factor on likelihood of adoption, concluding that the
adoptive resources for F.G and R.G. were “great.” The court stated that the foster
parents were “ready and willing to adopt.” The court considered the second
factor, the children’s age and health, and concluded that those were not barriers to
adoption or adoptability.

¶7 The court thoroughly discussed the third factor, whether the children
had a substantial relationship to L.I. and whether it would be harmful to sever the
legal relationship. On the issue of the substantial relationship between the
biological parent and child, the court stated that a substantial relationship is “more
than love.”

The relationship that the children have with each other,
siblings, and the children that live in the homes with, they
consider to be their siblings. The [c]ourt must consider
those relationships as well trying to find a balancing act
saying which one carries more weight, which one can have
the greatest impact or may have the greatest impact on the
child?

(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.

Sec. 48.426(3).

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The court acknowledged that there was testimony about the foster parents
willingness to maintain contact with the parents and extended family; however, the
court noted that under Wisconsin law, the circuit court “may consider the adoptive
parent’s promise … unenforceable[.]”

¶8 The circuit court found that the children did not have a substantial
relationship with L.I. Further, the court found there was not substantial ongoing
contact with the children’s extended family. Concurrently, the court considered
the relationship with the biological family and the relationship with the foster
parents, pondering the impact of denying the termination of parental rights “on the
relationship that the child has to the family that they have known for two or three
years.”

¶9 For the fourth factor, the court addressed that it was difficult to
discern the wishes of children as young as F.G. and R.G. However, it noted that
the children’s guardian ad litem believed that it was in their best interests to
terminate parental rights. The court concluded that the fifth factor on time of
separation, there was ample testimony to support that the children had been
removed from L.I.’s care at seven months for F.G. and days after birth for R.G.
The children had been in out of home care for a “significant amount of time.” The
time of separation was three years for F.G. and two years for R.G. The court
commented that “[t]ime is different for a child than it is for an adult.”

¶10 Finally, the court considered the sixth factor, and concluded that the
children “would be better able to enter into a more stable and permanent family
relationship as a result of the termination of parental rights.” Taking into account
the current conditions of each child’s placement, the court noted that each child
has been in the same, stable foster placement since her removal—F.G. and R.G.

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were placed in different foster homes, but there was contact between the foster
placements.

¶11 The court “conclude[d] that as a matter of law that termination of
parental rights has been proven by clear, convincing and satisfactory evidence[.]”
The court ordered the termination of L.I.’s parental rights. L.I. appeals.
Additional relevant facts are included below.

DISCUSSION

¶12 L.I. argues that the circuit court erroneously exercised its discretion
when it ordered the termination of her parental rights to F.G. and R.G. The
determination of whether termination of parental rights is in the best interests of
the child is governed by the statutory process in WIS. STAT. ch. 48 and the factors
under § 48.426(3). The decision to terminate parental rights is within the
discretion of the circuit court after the grounds for termination have been proven.
See Gerald O. v. Susan R., 203 Wis. 2d 148, 152, 551 N.W.2d 855 (Ct. App.
1996). We will not overturn 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 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.6 Dane Cnty. DHS v. Mabel K.,
2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.

6
In her reply brief, L.I. takes issue with the standard of review articulated by the State,
which L.I. interprets to mean she would need to show that the circuit court erred when it
considered the facts and the standard of law and in its demonstrated rational decision-making.
We agree it is not L.I.’s burden to show error in all three steps. However, if our review shows
that the circuit court’s considerations in all three steps were without error, then its decision is not
an erroneous exercise of discretion.

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¶13 L.I. argues that the circuit court misapplied the third statutory factor,
the harm to the child from severing the legal relationship. L.I. contends that the
circuit court improperly concluded that the children’s relationship with L.I. was
not substantial because it was not as close as the children’s relationship to their
respective foster parents. L.I. points to the circuit court’s oral findings at the
dispositional hearing:

As to [L.I], I am sympathetic to the fact she has made her
best efforts with her cognitive challenges but her
relationship with [F.G.] and [R.G.] is minimal compared to
the relationship that [they] have with their caregivers so I
would not call it substantial.

L.I. argues that the relative strengths of the children’s relationships was not the
legal question before the court. L.I. contends that the statute does not create a
balancing test to determine this factor.

¶14 The State argues that the circuit court is allowed to consider any
additional factors that relate to the best interest of the child, with the statutory
language setting forth that the court shall “not be limited” to the list of factors in
the statute. See WIS. STAT. § 48.426(3). The record reflects that the circuit court
expressly acknowledged it was “not bound by just the six factors listed in the
statute. There are other things [it] can consider in making [its] decision and in [its]
discretion as to what should happen.” The State argues that the circuit court was
not misapplying § 48.426(3)(c), the “harm to the child” factor, or the proper
standard of law. We agree, it is clear that the circuit court was considering the
foster parent relationships in addition to the six statutory factors.

¶15 Our supreme court has interpreted WIS. STAT. § 48.426(3)(c) and the
considerations required of the circuit court to “evaluate the effect of a legal
severance on the broader relationships existing between a child and the child’s

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birth family.” State v. Margaret H, 2000 WI 42, ¶21, 234 Wis. 2d 606, 610
N.W.2d 475. It explained that “[t]hese relationships encompass emotional and
psychological bonds fostered between the child and the family.” Id. Here, we
conclude that the circuit court considered the third factor in accordance with the
law. It acknowledged that L.I. loved her children and that her children knew her
and loved her, but it concluded that “[t]he desire to be a parent is important but
unless you’re doing the work, [love is] not enough, not for the children[.]” The
court noted L.I.’s lack of follow through and her cognitive disabilities. We
conclude it is not clearly erroneous that that circuit court found the relationship
between L.I. and her children minimal.

¶16 The circuit court also considered the children’s potential future with
their respective foster parents. We conclude there was no error under the law to
do so. In its oral ruling, the court expressly noted that under Margaret H., the
circuit court should consider unenforceable an adoptive resource’s promise to
maintain a relationship with the biological parents after a termination. The record
reflects that the court thoroughly considered the best interests of F.G. and R.G.
when it made this decision: it reviewed on the record its consideration of all of the
statutory factors and then it engaged in an analysis of the children’s lives with
their foster parents and their possible future.

¶17 The circuit court’s analysis was centered on the third factor;
however, it was not improperly focused there. “Although an evaluation of
substantial relationships and the harm of a legal severance is indeed critical to the
court’s determination, exclusive focus on any one factor is inconsistent with the
plain language of WIS. STAT. § 48.426(3).” Id., ¶35. We defer to the circuit court
as to the weight of each factor when the court properly examined each factor on
the record. Id., ¶29. Here, the circuit court examined each factor on the record. It

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considered the relevant facts under the correct standard of law and it reached a
decision a reasonable circuit court could rationally make. See Mabel K., 346
Wis. 2d 396, ¶39. We conclude that the circuit court did not erroneously exercise
its discretion.

CONCLUSION

¶18 For the reasons stated above, we conclude that circuit court’s orders
terminating L.I.’s parental rights was made in the best interests of F.G. and R.G. in
compliance with the statutory mandate in WIS. STAT. § 48.426. Therefore, we
affirm the circuit court’s orders terminating L.I.’s parental rights.

By the Court.—Orders affirmed.

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

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