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COURT OF APPEALS
DECISION
DATED AND RELEASED
June 25, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0932
STATE
OF WISCONSIN IN
COURT OF APPEALS
IN RE THE TERMINATION
OF PARENTAL RIGHTS OF
MICHAEL I.O., A PERSON
UNDER THE AGE OF 18:
GERALD O.,
Petitioner-Respondent,
v.
CINDY R.,
Respondent-Appellant,
STATE OF WISCONSIN, BY
THE
WASHBURN COUNTY CHILD
SUPPORT AGENCY,
Co-Appellant.
APPEAL from an order of
the circuit court for Washburn County:
WARREN WINTON, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Cindy R. and the State of Wisconsin, by
the Washburn County Child Support Agency, appeal an order granting Gerald O.'s
petition to terminate his parental rights to his son, Michael I.O. Cindy and the State contend that the trial
court erred by determining that the termination of Gerald's parental rights was
in Michael's best interests. Because we
conclude that the trial court erroneously exercised its discretion by
determining the termination of Gerald's parental rights was in Michael's best
interests, we reverse the order.
Michael was born out of
wedlock on February 5, 1990. His
parents, Cindy and Gerald, lived together for a substantial period of the time
from Michael's birth until August 1991.
Cindy and Gerald then separated, with Cindy residing in Spooner,
Wisconsin, and Gerald residing in Colorado.
In May 1992, Gerald was adjudicated the father of Michael and ordered to
pay 17% of his gross income as child support.
Gerald's child support obligation was later changed to $381 per month.
Because Gerald had not
made any child support payments, Gerald was charged with four counts of
criminal nonsupport contrary to § 948.22, Stats. At the end of 1994, Gerald's child support
arrearage totaled $16,279. Plea
negotiations led to an agreement in which Gerald agreed to terminate his
parental rights and pay a lump sum of $20,506 to pay arrears to Cindy and the
State in exchange for the district attorney dropping the nonsupport
charges. Under the agreement, Cindy
would receive approximately $11,500, and the State would receive the remainder
of the money for past AFDC payments.
Gerald subsequently
petitioned to terminate his parental rights to Michael, and Cindy opposed the
petition. At the hearing on the
petition, Gerald testified that he had not had any contact with Michael since
August 1991, and that it would be in Michael's best interests to terminate his
parental rights and receive the lump sum payment because of Gerald's precarious
financial position and the possibility that he would go to jail on the
nonsupport charges. Gerald further
testified that the bank would not loan him $20,000 for the lump sum payment
unless his parental rights were terminated.
Gerald, a licensed
plumber, earned approximately $33,000 in 1994 and testified that his current
take home pay is approximately $620 per week.
Gerald made his child support payments from June 1995 to February 1996
and, although he expressed concerns about a future layoff, he testified that he
could continue to make his child support payment if everything worked out with
his current job. Cindy testified that
she did not think it was in Michael's best interests to terminate Gerald's
parental rights because she needs the child support to help provide for Michael. Michael's guardian ad litem also opposed the
termination of Gerald's parental rights.
The trial court found
that Gerald had abandoned Michael, had paid no child support until June 1995,
and had not been any kind of a father to Michael. The trial court concluded that therefore it could not be in the
child's best interests to retain Gerald as the father under the facts and
circumstances of the case. Accordingly,
the trial court granted the petition terminating Gerald's parental rights.
Cindy and the State
contend that the termination of parental rights was not in Michael's best
interests and therefore the court erred when it granted the petition. The ultimate decision whether to terminate
parental rights is discretionary. In
re J.L.W., 102 Wis.2d 118, 131, 306 N.W.2d 46, 52 (1981). To terminate parental rights, the trial
court must make a determination that the termination of parental rights is in
the child's best interests. See In
re A.B., 151 Wis.2d 312, 320-21, 444 N.W.2d 415, 418 (Ct. App. 1989); §
48.426, Stats. The determination of a child's best
interests in a termination proceeding depends on firsthand observation and
experience with the persons involved and, therefore, is left to the discretion
of the trial court. In re Brandon
S.S., 179 Wis.2d 114, 150, 507 N.W.2d 94, 107 (1993). The trial 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. Loy
v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982). The trial court's findings of fact will not
be set aside unless clearly erroneous.
Section 805.17(2), Stats.
We note that in other
termination of parental rights cases, courts have concluded that the "best
interests" analysis "presents a mixed question of law and fact with
the precise determination of such criteria as psychological factors being
questions of fact." See A.B.,
151 Wis.2d at 321, 444 N.W.2d at 419.
Because our result would be the same under either standard, we do not
resolve the conflict between the two standards of review.
In making a decision
whether to terminate parental rights, the trial court must give paramount
consideration to the best interests of the child, which constitutes the prevailing
factor. See §§ 48.01(2) and
48.426(2), Stats. Section 48.426(3) provides:
In considering the best interests of the
child under this section the court shall 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 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.
The trial court relied
on three factors in determining that the termination was in Michael's best
interests: (1) Gerald had abandoned Michael and had not been any kind of a
father to him; (2) Gerald had not paid any child support until June 1995; and
(3) Gerald agreed to pay a lump sum of $20,506 if his parental rights were
terminated. We note that this was a
voluntary termination of parental rights by the father, who was the only party
that felt the termination was in the child's best interests. Cindy, corporation counsel and Michael's
guardian ad litem all opposed the termination of Gerald's parental rights.
First, we address the
factors of abandonment and failure to pay child support. We conclude that these two factors alone are
not sufficient to make a voluntary termination of parental rights in the best
interests of the child. If these
factors were sufficient, it would give Gerald the ability to terminate his
parental rights based on his voluntary course of conduct. Gerald would otherwise have ultimate control
over the termination of his parental rights of Michael. While not sufficient alone, the combination
of these factors with other factors supporting termination may be
sufficient. For example, the
termination of parental rights may be in the child's best interests if there
was also evidence that Gerald had a negative impact on Michael or that Michael
was going to be adopted. In this case,
however, there is no evidence, other than the abandonment, that Gerald had any
negative impact on or presented any danger to Michael. Further, Cindy testified that there is no
foreseeable stepparent adoption of Michael.
"While the vicissitudes of life place many children in one-parent
circumstances, it is generally better for children to have two parents." A.B., 151 Wis.2d at 322, 444
N.W.2d at 419.
Because of the proposed
lump sum payment, Michael's financial interest is also a factor to consider in
determining whether the termination would be in Michael's best interests. We conclude that the proposed lump sum
payment is not in Michael's best interests.
Termination removes all obligations of future support, both financial
and emotional. While Gerald cannot be
compelled to provide Michael with emotional support, the law can effectively
compel continued financial support.
Cindy testified that she
needs the future child support to help provide for Michael. Gerald earned approximately $27,000 in 1993
and $33,000 in 1994. Gerald also
testified that his current take home pay is approximately $620 per week. Further, the record reflects that Gerald
made his child support payments from June 1995 up to the hearing in February
1996. Although Michael expressed
concerns about a future layoff and about losing his job if he were put in jail
on the criminal charges for nonsupport, Gerald testified that he could continue
to make the child support payment if everything worked out with his current
job.
Michael is only six
years old and if Gerald's child support obligation remains the same, Michael
would be entitled to receive over $54,000 in child support over the next twelve
years. While Gerald has agreed to pay a
lump sum of $20,506, most of that sum is attributable to past child support
obligations. In addition, Michael would
only receive approximately $11,500 of that amount. A father should not be permitted to eliminate over $54,000 of
needed future support because he agrees to pay past support which he is already
legally obligated to pay. Under these
facts, the termination of Gerald's parental rights cannot be in Michael's best interests.
To the contrary, the
termination of parental rights appears only to be in Gerald's best
interests. In fact, the trial court
found that Gerald's motivations for voluntarily terminating his parental rights
were to avoid prison or probation for the criminal charges and to be able to
better support his present family which consists of a wife and two
children. The trial court also
suggested that another motivation, although not the primary one, may be to escape
the responsibility of supporting Michael.
None of the motives as
found by the court involve Michael's best interests; they all represent
Gerald's desires. As we stated in A.B.:
"Parental rights may not be terminated merely to advance the parents'
convenience and interests, either emotional or financial. ... Simply put, no parent may blithely walk
away from his or her parental responsibilities." Id. at 322, 444 N.W.2d at 419. While Michael would presently stand to
receive approximately $11,500 if the termination is granted, the long-term
financial considerations weigh heavily in favor of denying the petition. Because of the potential future support
Michael is entitled to receive over the next twelve years from a parent who is
gainfully employed and able to discharge his child support obligation and the
lack of any compelling negative impact of Gerald on Michael, we conclude that
the termination of Gerald's parental rights is not in Michael's best
interests. Michael's best interests are
met only if Gerald remains responsible for providing child support over the
next twelve years. Because the
termination is not in Michael's best interests, we conclude the trial court
erroneously exercised its discretion when it terminated Gerald's parental
rights.
We note that there may
be situations where a termination of parental rights in exchange for a lump sum
payment for child support by a father who has expressed no interest in having a
relationship with the child may be in the child's best interests. However, considering the age of the child,
the amount of the payment in light of the father's obligations, and the lack of
any negative impact of Gerald on Michael, we conclude that the termination is
not in Michael's best interests in this case.
Because the trial court erroneously exercised its discretion when it
terminated Gerald's parental rights, we reverse the order.
By the Court.—Order
reversed.
