COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 4, 1997 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1338
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Paternity of
Cheyenne S.W.:
DALE P.A.,
Petitioner-Respondent,
v.
BECKY W.P.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Becky W.P. appeals an order transferring custody of
Cheyenne S.W. to her father, Dale P.A.
Becky argues that the evidence does not support the trial court's
finding that a change of custody was necessary to Cheyenne's best interest, the
court should have received additional medical testimony regarding Cheyenne's
asthma problems, the trial court exhibited bias against Becky, and the order
should be reversed in the interest of justice because the controversy was not
fully tried. We reject these arguments
and affirm the order.
Under
§ 767.325(1)(a), Stats., a
change of an initial placement order within two years of its entry requires
substantial evidence that the change is necessary because the current custodial
conditions are physically or emotionally harmful to the best interests of the
child. See In re Stephanie
R.M., 174 Wis.2d 745, 760-61, 498 N.W.2d 235, 239 (1993). "Necessary" embodies two concepts
under this statute:
(1) modification must protect the child from alleged harmful
custodial conditions; and (2) the harm threatened by the current custodial
condition must be severe enough to warrant modification. Id. It is not necessary to show that the child is in immediate danger
of life, health or safety and it is not necessary to prove that the child has
actually suffered harm. Id.
The record supports the
trial court's finding that continued placement with Becky threatened Cheyenne's
physical health. An allergist testified
that failure to treat asthma could cause permanent and destructive changes to
the lungs. Becky had testified at a
previous hearing that Cheyenne "is ill all the time." Dale testified that she "coughs until
she pukes a lot." Despite these
symptoms and literature Dale gave Becky regarding asthma treatment, Becky did
not follow any of the treatment recommendations, was reluctant to talk about
the medical treatment, refused to allow Dale to show her how to administer the
medication, cancelled appointments with doctors, and made none of the suggested
changes to her home to eliminate irritants to the lungs. The medical record showed that Becky's home
contained cats, dogs, older carpeting and, at one time, seven smokers. Becky also confirmed that she continues to
smoke. This evidence provides a
sufficient basis for the trial court's finding that a change of custody was
necessary for Cheyenne's health.
Becky concedes that
Cheyenne suffers from asthma and that Becky did not administer medication while
Cheyenne was in her custody. She argues
that this evidence constitutes only speculative harm to Cheyenne and did not
demonstrate that Becky could not be trusted to administer medication if the
court required it. The court was not
required to wait until actual permanent harm was done before modifying the
custody order. In re Stephanie
R.M., 174 Wis.2d at 761, 498 N.W.2d at 239. Likewise, the court was not required to accept Becky's eleventh
hour assurance that she would care for Cheyenne's health in the future. The credibility of Becky's assurances was a
matter for the trial court to determine.
See Cogswell v. Robertshaw Controls Co., 87 Wis.2d
243, 249, 274 N.W.2d 647, 650 (1979).
Becky argues that
"the court should have received the testimony of
Dr. Turner." The court did
not disallow Turner's testimony.
Rather, Becky did not offer Turner's testimony. While Becky indicated that Turner was
available to testify by telephone, she never called Turner as a witness. The issue cannot be raised for the first
time on appeal. See Rennick
v. Fruehauf Corp., 82 Wis.2d 793, 802, 264 N.W.2d 264, 269 (1977).
Becky argues that the
trial court's caustic comments regarding Turner's diagnosis demonstrate bias by
the court. Turner's reports suggest
that Dale may be overconcerned or fabricating Cheyenne's medical
condition. Dr. Voss testified that
Cheyenne had an "asthma episode" in his office. The diagnosis of asthma was contained in
Cheyenne's medical records and did not rely on Dale's observations. In addition, on appeal, Becky admits that
Cheyenne suffers from asthma. The trial
court's findings that are critical of Turner's diagnosis constitute reasonable
findings of fact based on the evidence and do not reflect any partiality.
Finally, there is no
basis for reversal in the interest of justice.
Despite the lack of Turner's testimony, the record presented to the
trial court and the concessions made on appeal demonstrate that the controversy
was fully and fairly tried. See
§ 752.35, Stats.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.