Wood County DHS v. P. M. P.

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.
February 23, 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. 2022AP1815 Cir. Ct. No. 2021TP20

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

WOOD COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

P. M. P.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Wood County:
NICHOLAS J. BRAZEAU, JR., Judge. Affirmed.
No. 2022AP1815

¶1 GRAHAM, J.1 P.M.P. appeals an order terminating her parental
rights to her daughter. P.M.P. argues that the circuit court erroneously exercised its
discretion at the dispositional phase because it did not adequately consider each of
the factors set forth in WIS. STAT. § 48.426(3)(a)-(f). I disagree and affirm the
circuit court’s order.

BACKGROUND

¶2 The Wood County Department of Human Services filed a petition to
terminate P.M.P.’s parental rights to her daughter, T.A.P.2 At the time the petition
was filed, T.A.P. was four years old, and she had been placed outside of P.M.P.’s
home since she was approximately 20 months old. The County alleged continuing
need of protection or services and failure to assume parental responsibility as
grounds for termination. See WIS. STAT. § 48.415(2); (6).

¶3 P.M.P. denied the allegations in the petition and requested a jury trial.
The jury returned verdicts in favor of the County on both grounds and the case
proceeded to disposition.

¶4 At the dispositional hearing, the court heard testimony from T.A.P.’s
foster mother, as well as from the social worker who worked for the County and had
been responsible for the child in need of protection or services case involving T.A.P.
P.M.P. did not testify at the dispositional hearing.

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.
2
The County also sought to terminate T.A.P.’s father’s parental rights. T.A.P.’s father did
not appeal the circuit court order terminating his parental rights, and I discuss his case no further.

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No. 2022AP1815

¶5 T.A.P.’s foster mother testified about the state of T.A.P.’s health at
the time T.A.P. was placed in her care. The foster mother indicated that T.A.P. was
small and anemic, that her “hair was falling out,” and that she would eat things “that
weren’t food.” When asked whether P.M.P. ever contacted her with any concerns
about T.A.P.’s health, the foster mother indicated that T.A.P. had a high fever and
had to see a doctor a couple weeks before the trial. The foster mother emailed
P.M.P. about the appointment, but P.M.P. “didn’t reply to the email” and “didn’t
ask how [T.A.P.] was” or “how the appointment went.” When asked about T.A.P.’s
level of interest in online visits with P.M.P., the foster mother testified that T.A.P.
“was pretty inattentive, frequently leaving the table or leaving the iPad or just not
really engaged,” and that T.A.P. had expressed that “she did not want to do the
visits” with P.M.P.

¶6 The social worker testified that P.M.P. had had consistent weekly
visits with T.A.P. However, in the County’s opinion, P.M.P. and T.A.P. did not
have a substantial relationship, and it would not be harmful to sever their
relationship. When asked whether any of P.M.P.’s extended family ever tried to
establish a relationship with T.A.P., the social worker testified that “there has not
been any extended familial relationships” with T.A.P. other than her grandmother’s
participation in several of P.M.P’s supervised visits with T.A.P. When asked
whether T.A.P. had expressed any interest in continuing the relationship, the social
worker testified that “those conversations ha[d] been limited” due to T.A.P.’s “age
and developmental level,” but that T.A.P. “ha[d] expressed that she does not want
to go to visitation with [P.M.P.]” The social worker testified that, if P.M.P.’s
parental rights were terminated, adoption would be likely, and that termination
would “allow for a more stable and permanent living arrangement” for T.A.P.

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No. 2022AP1815

¶7 WISCONSIN STAT. § 48.426(2) provides that, when determining the
disposition of termination of parental rights proceedings, the “best interests of the
child shall be the prevailing factor considered by the [circuit] court.” In determining
what is in the best interests of the child, § 48.426(3) directs the court to “consider
but not be limited to the following:”

(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.

¶8 In this case, the court issued an oral ruling finding that it was in the
best interests of the child to terminate P.M.P.’s parental rights. The court then went
through the six factors identified in WIS. STAT. § 48.426(3)(a)-(f) and made the
following findings, expressly referencing each of the factors.

¶9 Specifically, the circuit court found that “the likelihood of adoption
after termination is very high.” See WIS. STAT. § 48.426(3)(a).

¶10 Regarding T.A.P.’s health, the circuit court found that “her health is
good now, but there were a number of problems in that home … that could at least
cause a person great difficulty.” See WIS. STAT. § 48.426(3)(b).

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No. 2022AP1815

¶11 As for whether it would be harmful to sever the parental and familial
relationships, the circuit court found that “[t]here has been no evidence of that at
all.” It further stated that, although P.M.P. had visited with T.A.P. 100 times over
the course of three years and that is “a lot of visits,” “[a] substantial relationship
goes beyond that.” The court stated that “one of the things that … indicates [a]
substantial relationship is the child’s reaching out, … the child’s comfort level, …
who does the child go to when they’re not feeling well, when they’re in trouble[.]”
Given the evidence about T.A.P.’s comfort level, the court found that “100 visits in
and of themselves don’t make the kind of substantial relationship that this Court
worries about … severing.” See WIS. STAT. § 48.426(3)(c).

¶12 As for T.A.P.’s wishes, the circuit court indicated that “[t]he wishes
of the child are not material to this Court.” See WIS. STAT. § 48.426(3)(d).

¶13 Regarding the duration of the separation of the parent from the child,
the circuit court indicated that “[s]eparation of the parent/child is a significant factor
no matter what the reasons are.” See WIS. STAT. § 48.426(3)(e).

¶14 Finally, regarding whether T.A.P. will be able to enter into a more
stable and permanent family relationship as a result of the termination, the circuit
court found that “the child will clearly be able to enter into a more stable and
permanent family relationship as a result of this termination, taking into account the
current placement.” See WIS. STAT. § 48.426(3)(f).

DISCUSSION

¶15 Involuntary termination of parental rights proceedings involve two
separate phases: the grounds phase (sometimes referred to as the “fact-finding”
phase) and the dispositional phase. Steven V. v. Kelley H., 2004 WI 47, ¶¶24-27,

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No. 2022AP1815

271 Wis. 2d 1, 678 N.W.2d 856. Once grounds for termination of parental rights
are established, it is within a circuit court’s discretion to determine the disposition,
which is based on whether termination of parental rights is in the child’s best
interests. Id., ¶27; see also State v. Margaret H., 2000 WI 42, ¶27, 234 Wis. 2d
606, 610 N.W.2d 475.

¶16 On appeal, P.M.P. argues that the circuit court erroneously exercised
its discretion in the dispositional phase because the record does not reflect that the
court adequately considered or weighed the factors set forth in WIS. STAT.
§ 48.426(3)(a)-(f). P.M.P. acknowledges that the circuit court’s discussion of
whether there was a substantial relationship between P.M.P. and T.A.P. was
adequate. However, she argues that the court’s consideration of the other factors
was “terse and abbreviated,” and that the court “failed to state on the record the
relevant facts pertaining to such factor[s.]”

¶17 P.M.P. cites Minguey v. Brookens, 100 Wis. 2d 681, 303 N.W.2d 581
(1981) and Margaret H., 234 Wis. 2d 606, for the proposition that the circuit court
was required to do more to properly exercise its discretion, but neither of those cases
support P.M.P.’s argument.

¶18 In Minguey, the circuit court’s exercise of discretion in the
dispositional phase was inadequate because it did not make a finding that
termination was in the best interests of the child. Minguey, 100 Wis. 2d at 687.3

3
The Minguey court also faulted the circuit court in that case for failing to resolve factual
disputes relevant to the grounds phase of the proceedings. Minguey v. Brookens, 100 Wis. 2d 681,
687, 303 N.W.2d 581 (1981) (“the trial court findings regarding the grounds for termination … are
inadequate”). Here, P.M.P.’s challenge is to the court’s exercise of discretion during the
dispositional phase of the proceedings, and the facts introduced during that phase were largely
undisputed. Accordingly, this holding from Minguey is not pertinent to my analysis.

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No. 2022AP1815

¶19 In Margaret H., the circuit court’s disposition was based on just one
factor—the harm that would be caused by severing the child’s legal relationship
with his biological grandmother. Margaret H., 234 Wis. 2d 606, ¶35. Indeed, the
court considered this factor to the exclusion of any of the other statutory factors. Id.
On review, our supreme court remanded the matter for further consideration because
an “exclusive focus on any one factor is inconsistent with the plain language of WIS.
STAT. § 48.426(3),” id., and “the circuit court failed to consider all of the relevant
statutory factors enumerated under § 48.426(3),” id., ¶31.

¶20 This case is entirely unlike Minguey or Margaret H. Here, the court
expressly “alluded to” all six factors,4 and determined that, based on its assessment
of those factors, termination was in T.A.P.’s best interests. Although the circuit
court could have said more, I have no basis for concluding that the court’s exercise
of discretion was inadequate.

¶21 Separately, P.M.P. also argues that the court erred by wholly failing
to consider the wishes of the child. This argument fails for two reasons.

¶22 First, although the court’s discussion of this factor was admittedly
terse, it appears that the court was acknowledging the reality that T.A.P. had not
expressed concrete wishes about whether P.M.P.’s parental rights should be
terminated. To that end, the court was simply expressing its agreement with the
County’s attorney that, “given [T.A.P.’s] age, her wishes aren’t necessarily what’s
going to be the driving factor here.” Under the circumstances, I view the circuit

4
See Pierce Cnty. DHS v. Troy H., Nos. 2012AP2525 and 2112AP2526, unpublished slip
op. ¶9 (WI App Feb. 19, 2013) (quoting Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶30,
255 Wis. 2d 170, 648 N.W.2d 402).

I cite this authored, unpublished, one-judge opinion for its persuasive value pursuant to
WIS. STAT. RULE 809.23(3)(b).

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No. 2022AP1815

court’s statement as a fair assessment of the limited amount, and value, of the
evidence relevant to that factor, rather than an unwillingness or refusal to consider
any wishes that T.A.P. might have expressed.

¶23 Second, had the court expressly considered T.A.P.’s wishes, the only
evidence on that factor admitted during the dispositional hearing was that T.A.P.
had expressed little interest in continuing visits with P.M.P. Accordingly, to the
extent that the court gave the limited evidence on this factor additional weight, it
would support termination.

¶24 Accordingly, for the reasons explained above, I 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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