Walworth County DH&HS v. E.U.

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 30, 2020
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. 2019AP2079 Cir. Ct. No. 2015JC50

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF E.A.U., JR., A PERSON UNDER THE AGE OF 18:

WALWORTH COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

E.U.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Affirmed.

¶1 DAVIS, J.1 “Edward” appeals from circuit court orders denying his
request to change placement and denying his alternative request for trial

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP2079

reunification with his son, “Adam.”2 We hold that the circuit court did not
erroneously exercise its discretion in this matter and accordingly affirm.

BACKGROUND

¶2 In June 2015, the Walworth County Department of Health & Human
Services (the Department) removed then-six year-old Adam to foster care because
of maternal neglect. See WIS. STAT. § 48.13(10). Edward’s whereabouts were then
unknown; he had been deported to Mexico in 2013 following a conviction for
substantial battery, domestic abuse of Adam’s mother. A November 2015
dispositional order adjudged Adam to be a child in need of protection or services
(CHIPS) and continued his placement in foster care.

¶3 It was some months before Edward learned that Adam was in foster
care. Sometime in 2016, Edward reached out to the Department to seek placement
of Adam, and in May 2017, the Department filed a request to change placement to
Edward’s care. See WIS. STAT. § 48.357. That request was denied, as were
additional requests over the next two years—culminating with the orders that are
the subject of this appeal.3 These last orders followed a hearing at which the parties
gave oral argument only and the circuit court based its ruling on evidence from prior
hearings. We therefore summarize the substance of those hearings.

2
For ease of reading, we refer to the appellant and his minor child by pseudonyms, instead
of initials.
3
After Adam was removed from his mother’s care, she did not progress towards fulfilling
the conditions for his return and remained largely absent from his life. Thus, the Department’s
permanency goal did not include reunification with the mother.

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¶4 In May 2017, the Department submitted a request to change
placement to Edward’s care; it also submitted a new permanency plan4 for Adam
with the updated goal of reunification with Edward. At the hearing to review the
permanency plan, the circuit court expressed concerns about changing placement,
although it admitted its fears might be unfounded. The court worried about sending
Adam to a different country, one where he had never lived, and to an area (Nogales,
Mexico) that might be unsafe. The court also worried that it would have no ability
to return Adam to Wisconsin if anything went wrong. The court put the Department
on notice that when it came time for the placement hearing, it would want to see
“something more” than a simple home study of Edward.

¶5 In October 2017, the circuit court held an evidentiary hearing on
placement; Edward participated by video. The court heard testimony from Edward
and Adam’s case manager, and it considered two home studies. The court denied
the Department’s request to change placement after finding the custody study
“useless” and unreliable, as many of the key facts had changed since it was written
in March 2017. At the time of the study, Edward was living with his girlfriend and
her children in his girlfriend’s house. By the time of the hearing, however, Edward
was married to a different woman who had not been interviewed as part of the home
study; he was still living in his former girlfriend’s house (with his new wife), but
the house’s ownership status was unclear. According to Edward, his new wife
would play a significant caretaker role, so the court found it “most concerning” that
the Department had apparently not even been aware that Edward was married.

4
A permanency plan is “a plan designed to ensure that a child is reunified with his or her
family whenever appropriate, or that the child quickly attains a placement or home providing long-
term stability.” WIS. STAT. § 48.38(1)(b). These plans are reviewed by the court or an appointed
panel every six months and by the court every twelve months. Sec. 48.38(5), (5m).

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Edward had also stated that his family would help care for Adam, but there was no
information about his family in the home study.

¶6 The court concluded:

What I’m left with since I can’t rely on the custody study
is simply taking [Edward’s] word for all of the facts that have
been put in the record here today, because there is no
independent verification by anyone of the majority of those
facts. I can’t simply take the word of a convicted felon who
I have no evidence has followed court orders in the past[5]…
with a custody study that doesn't in any way, shape or form
reflect the current circumstances of the home that I would be
sending him to ….

¶7 One month later, in November 2017, the Department filed an updated
permanency plan. The plan outlined the “concerns” the court had articulated at the
October 2017 hearing and stated that it would “assist and monitor [Edward’s] effort
to address these concerns with a variety of services.” It noted that “the Mexican
Consulate will be coordinating with Mexican Child Welfare agency (DIF) to acquire
another, more thorough home study that will address the court’s specific concerns”
and that “[a] background check will be completed on [Edward’s] wife.” At the
hearing on the permanency plan, the court determined that the goal of reunification
with Edward was appropriate. It set a date for another permanency plan review
hearing in six months and stated that it “encourage[d] everyone to work hard for the
next six months on these conditions, maybe we can come up with a more clear idea

5
The court had previously noted that there was no evidence of Edward’s providing
financial or material support for Adam or providing restitution in the felony domestic violence case.
This concerned the court because it indicated that Edward might be less likely to “comply with
court orders in the future …. [t]he thinking being essentially that if he was not complying with
court orders in the family realm or the criminal realm, there would be no reason to have me believe
that he would follow orders in the juvenile realm either.”

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for [Edward] what he needs to do and then we can have hopefully a more final
hearing at our next permanency plan hearing.”

¶8 The Department filed a new permanency plan in April 2018. The plan
stated that the Department had given Edward a list of specific conditions to complete
for Adam’s return. These included completing domestic violence and alcohol/drug
assessments; providing the Department with information about his wife, so a
background check could be done on her; regularly including his wife in video calls
with Adam; and taking part in a new home study. The permanency plan noted that
Edward had “missed/not been available for several phone calls,” despite repeatedly
stating that the time and day of the calls were convenient. In addition, despite the
Department’s request, Edward’s wife was not sitting in on these video calls.
Overall, though, the Department described Edward as “remain[ing] very
cooperative with the Department.”

¶9 In May 2018, Edward filed a request to change placement. A hearing
was held on the request in July. From the testimony of Edward and the Department
case worker, the court learned that Edward was working towards, but had not
completed, all the conditions for Adam’s return. For example, Edward had
completed an updated home study and anger management classes, had demonstrated
stable employment, and testified about concrete plans for schooling and caring for
Adam. On the other hand, Edward had not contacted Adam’s therapist, requested
report cards, or taken any similar steps to “meet [Adam’s] developmental needs”;
he had also missed several video call appointments with Adam. Furthermore, it
appeared that Adam and Edward’s wife had not developed a relationship, mainly
because of the language barrier, even though she would be caring for Adam while
Edward was at work. Although outside of Edward’s control, the Department also

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did not apprise the court of any concrete plans for maintaining contact with the
Mexican authorities following Adam’s placement.

¶10 For these reasons, the court denied placement. The court credited the
number of steps Edward had taken. But the court found it “critical that there be
communication between the Department … and the equivalent department in
Mexico” and found it “incredibly concerning” that there was none to date.
Naturally, the court directed this concern to the Department, but it addressed equally
important concerns to Edward. The court found it important that Edward be in
communication with Adam’s therapist. The court also asked Edward to look into
arranging therapy in Mexico in anticipation of placement. The court further found
it important “as a safety concern” that Adam and Edward’s wife both learn basic
Spanish and English (respectively), as she would be his day-to-day caretaker. The
court stressed that Edward’s wife should more fully participate in video chats.
Finally, the court addressed several “medium level concerns,” asking Edward to
complete the drug and alcohol assessment and more closely monitor Adam’s
progress in school. The court concluded, “I think where that leaves us is that we
may be seeing some light at the end of this tunnel, but I think the light may be a
little ways off still.”

¶11 The Department filed another permanency plan two months later, in
September 2018. The plan updated the court on Edward’s steps toward
reunification, noting areas of progress and for improvement:

[Edward’s] wife has participated by saying “Hola” in one
video chat. When asked why she hasn’t been participating,
[Edward] stated “she is too shy.” He completed his [alcohol
and other drug abuse] assessment, and has participated in 1
phone call with [Adam’s] therapist…. [Edward] has had the
last two months to make significant progress with his
relationship with [Adam] as well as a chance to demonstrate
his understanding and investment to ensuring [Adam’s]

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No. 2019AP2079

emotional needs are being met in a therapeutic setting, yet
he has only participated in one phone call. [Edward]
continues to make efforts towards reunification, but has still
not completed his conditions of return. [Edward’s]
motivation seems sporadic at times…. [Edward] remains
very cooperative with the Department and timely in his
communication….

¶12 At the October 2018 hearing on the permanency plan, the Department
discussed Edward’s progress. The Department explained that there was initially “a
lot of miscommunication between [Edward] and the therapist,” but that there was
now a family session scheduled for Adam and Edward that was “very crucial” for
Edward to attend. The Department noted two areas of continued concern. First,
“although it’s been very clear to [Edward] that his wife is expected to get to know
[Adam] as she will be [Adam’s] primary caregiver … there really hasn’t been any
movement on … her trying to learn English.” Second, “[t]he phone calls between
[Adam] and his dad have been regular but not always consistent” even though they
were “regularly scheduled,” causing “a lot of stress on [Adam].” The Department
stated that Edward’s home and job were stable and his background checks
completed—“[i]t’s more of these finer details, and we want to give him an
opportunity to meet those finer details.”

¶13 The Department’s next permanency plan, filed in March 2019, noted
that these two concerns were still unresolved: “[Edward] has not been participating
in [Adam’s] therapy nor has his wife been participating in video chats. [Edward]
has missed several video chats in the last few months, due to getting his days mixed
up, not having internet access, or simply not being available at the time of a call.”

¶14 In April 2019, Edward filed the requests at issue in this appeal: (1) to
change placement, beginning in June 2019; or (2) in the alternative, for trial

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No. 2019AP2079

reunification during Adam’s 2019 summer vacation. See WIS. STAT. §§ 48.357,
48.358. This time, the Department objected, for the following reasons:

1. [Edward] … often works 7 days a week and usually long
hours each day [and] has stated that his wife will be the
primary caretaker for [Adam]. [Adam] does not know
[Edward’s] wife and she does not speak English. [The
two] will not be able to communicate … in the event of
an emergency.

2. [Edward] has … lack[ed] … follow through on learning
about [Adam’s] mental health, engaging in any family
[therapy] sessions, or learning about his schooling or
medical care.

3. [Edward] … consistently misses one or two video visits
per month. When video visits do occur, they are short
and superficial. [Edward] does not write [Adam] on a
regular basis. Furthermore, [Edward’s] wife has only
said “hola” on one video visit to [Adam] last August.
[Edward’s] wife has shown no interest in participating in
the visits and getting to know [Adam] ….

4. The Department is not aware of any legal mechanism
that will ensure the Department’s ability to retrieve
[Adam] from Mexico if any issues related to safety or
conditions of return [arise] ….

5. [Adam] has voiced to his foster parents and social
worker that he does not want to live in Mexico ….

6. [Adam] attends individual therapy[,] … and continuing
therapy would be in his best interest[,] [and] [Edward]
has not identified any potential therapists who could
continue [Adam’s] therapy in Mexico.

¶15 In May 2019, the court held a hearing on Edward’s requests; as noted,
the court heard oral argument only and not testimony. Counsel for Edward
acknowledged it was not “surprised at all that the video chats are somewhat stagnant
because you can only do so much when you are never able to be with that person.”
More broadly, counsel questioned if Edward was ever going to be given placement:

[W]e have to get this started at some point, and if there is
never that connection … then I think our system is failing …

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No. 2019AP2079

because then we’re telling parents that … you can meet all
of these things that we tell you to do but by the fact of who
you are from birth, you’re never going to get reunification.
So I would question then why do we even bother with this
charade ….

¶16 The Department, in turn, discussed the history of the case and its
desire to see “consistency” on Edward’s part. It noted that, two years prior, Edward
was “very motivated” but that “when we finally got to litigation on that change of
placement back in 2017, his entire home dynamic [had] changed without any of us
even knowing about it.” It acknowledged that “in hindsight we learned a lot from
that [placement] request in really trying to think what is best for [Adam]” and that
Edward had not followed through with some of the ensuing conditions imposed:
participating in therapy, learning about Adam’s schooling or medical care, and
maintaining all video chat visits. Specifically, the Department pointed out that
Edward did not attend the “very crucial” family therapy session scheduled in
October 2018, “[a]nd he really, he hasn’t done anything since” regarding therapy.
The Department’s “biggest concern,” however, was that Adam did not know and
could not communicate with his stepmother, who would be his primary caregiver.
In response, Edward’s counsel pointed out that Adam should have been learning
Spanish during the past year, but that he could learn the language quickly if
immersed; that Edward could take some time off work to help with Adam’s
transition; and that a Mexican therapist could only feasibly be found for Adam once
he was living in Mexico.

¶17 The guardian ad litem gave argument echoing the Department’s
concerns, stressing that Edward’s wife had been ignoring “months and months” of
requests to participate in video chats. In addition, the guardian was “really afraid
that if we send [Adam] to Mexico, we can’t get him back.” In what was, in effect,
a summary of the long history of the case, the guardian acknowledged,

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No. 2019AP2079

I know this is a difficult case. If [Edward] was here, it
would be a completely different situation…. We could
follow up. We could do the home visits, announced and
unannounced home visits. We could, you know, make him
go to therapy with [Adam]. He’s not. And the follow
through on his part hasn’t been consistent either so I have a
lot of concerns.

Edward’s counsel did try to explain to the court how the Hague Convention
provided a procedure for returning children living abroad to the United States. The
court noted, however, “That seems like a bit of oversimplification.” Counsel also
advised the court that the Mexican and United States consulates were “involved in
this case.” The Department countered that it had “continued to reach out” to the
relevant Mexican authorities without any response, “so we don’t have any
guarantees or assurances that they’re even still working with [Edward].”

¶18 At the close of argument, the court gave its oral ruling, denying
Edward’s requests both for change of placement and trial reunification. In the
court’s view, there were “just too many red flags”: “[t]he language barrier, the
safety concerns, the lack of follow through, the lack of consistent engagement, the
fact that [Adam] would be going to a foreign country....” Edward brought a motion
for postdisposition relief, which was also denied, and this appeal followed.

DISCUSSION

¶19 The circuit court may order a change of placement or trial
reunification for a child subject to a CHIPS dispositional order where, in its
discretion, it determines that doing so is in the child’s best interest. See Sallie T. v.
Milwaukee County DHHS, 219 Wis. 2d 296, 305, 581 N.W.2d 182 (1998),
abrogated on other grounds by Village of Trempealeau v. Mikrut, 2004 WI 79, 273
Wis. 2d 76, 681 N.W.2d 190; Richard H. v. Tina B., 2014 WI App 123, ¶¶45-49,
359 Wis. 2d 204, 857 N.W.2d 432; WIS. STAT. §§ 48.01(1), 48.357, 48.358(2)(d).

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We review this decision for an erroneous exercise of discretion, meaning we will
reverse only where “‘the circuit court has not exercised discretion or … has
exercised discretion on the basis of an error of law or irrelevant or impermissible
factors.’” Richard H., 359 Wis. 2d 204, ¶45 (quoting Barstad v. Frazier, 118
Wis. 2d 549, 554, 348 N.W.2d 479 (1984)). Where the court “applies the correct
legal criteria, its decision is virtually invulnerable.” Richard D. v. Rebecca G., 228
Wis. 2d 658, 670, 599 N.W.2d 90 (Ct. App. 1999) (citation omitted).

¶20 Edward raises two arguments on appeal. First, he argues that the
circuit court erroneously exercised its discretion when it denied his requests without
making any factual findings. We disagree that the circuit court “failed to make any
findings,” however, as it plainly stated that there were “just too many red flags,”
including “[t]he language barrier, the safety concerns, the lack of follow through,
the lack of consistent engagement, [and] the fact that [Adam] would be going to a
foreign country.” Each finding is supported by the entirety of the record. For
example, the court heard that Edward had missed scheduled video calls and a key
therapy session and had not requested Adam’s report cards, which could reasonably
indicate a lack of “follow through” or “consistent engagement.” Edward also
appears to argue that, in the alternative, the court should have discussed each factual
finding with greater specificity—explaining, for example, what the particular
“safety concerns” were. Edward fails to develop this point, however, or present any
authority supporting his position that the court was required to make a more detailed
factual record. Accordingly, we address it no further. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review
arguments that are inadequately briefed or unsupported by legal authority).

¶21 Edward next argues that the “sole reason” his requests were denied
was “because of his status as a citizen of Mexico.” The result, he contends, is that

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the circuit court applied WIS. STAT. §§ 48.357 and 48.358 in a manner that violated
his equal protection rights under the federal and state constitutions. See State v.
Feldmann, 2007 WI App 35, ¶¶7-9 & n.2, 300 Wis. 2d 474, 730 N.W.2d 440; State
v. Martin, 191 Wis. 2d 646, 651-52, 530 N.W.2d 420 (Ct. App. 1995). After a
thorough review of the record, however, we find no factual basis for this assertion.
There is no evidence of animus towards, or discrimination against, Edward on the
basis of his national origin or citizenship. Instead, the circuit court, at various times,
expressed a number of reasonable concerns stemming from Edward’s international
location and his inability to live in or visit the United States. Over the course of
multiple hearings, the court heard testimony or argument that: (1) there was no
procedure or enforcement mechanism (or at least none described to the court in any
detail) for returning Adam to the United States if he were unsafe in Edward’s care6;
and (2) the relevant Mexican authorities, with whom the Department would
presumably be cooperating, were not communicating with the Department. In its
determination of Adam’s best interest, it was surely sensible for the court to weigh
these considerations.

¶22 That said, it is somewhat troubling—and we sympathize with Edward
on this point—that his requests were denied partly because the Department was not
fully able to address the circuit court’s concerns. If placement or trial reunification
were in Adam’s best interest, then it would be an institutional failure to deny those
requests solely because of logistical difficulties or bureaucratic incapacity. We need
not speculate on how we might approach such a scenario, however, because that is

6
The parties, at times, phrased this concern as one over “jurisdiction.” It is unclear
whether the parties simply meant the Adam might not be easily returned to the United States upon
court order, because of the lack of any streamlined enforcement mechanism, noncooperation by the
Mexican authorities, etc. We need not address, for the purpose of this appeal, how CHIPS
jurisdiction under WIS. STAT. § 48.13 applies in the international context.

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not the one before us. The court articulated—and the record supports—a number
of other “red flags” fully within Edward’s control. Thus, we cannot conclude that
the circuit court erroneously exercised its discretion in determining, for example,
that Edward’s at-times sporadic involvement in Adam’s life, or Adam’s lack of
relationship with his primary caretaker, warranted denying the requests. A review
of the full history of this case indicates that Edward was, in some respects, motivated
to gain placement—but was less motivated in other important respects. Edward’s
international location (and, again, not his citizenship or national origin) complicated
this process but cannot entirely explain his failure to address the court’s and the
Department’s concerns or complete his conditions of return.

¶23 We do not view the decision of the circuit court—which evidences a
commendable level of care and attention in this unusual CHIPS case—as suggesting
that reunification will not be possible at some point in the future. Nor does our
decision in any way preclude future reunification. We are cognizant of steps
Edward took to effectuate placement in the face of some real, practical barriers,
which at times prevented meaningful engagement with his son. On this record,
however, we cannot find that the circuit court erroneously exercised its discretion
by denying placement and trial reunification, given the number of outstanding “red
flags” or concerns Edward had yet to address. We affirm.

By the Court.—Orders affirmed.

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

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