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COURT OF APPEALS DECISION DATED AND RELEASED February 11, 1997 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2411
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
CREASIE F.,
a person under the age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
CREASIE F.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
THOMAS P. DONEGAN, Judge. Affirmed.
CURLEY,
J. Creasie F., the subject of a Child in Need of Protection or
Services (CHIPS) petition, appeals from an order entered by the juvenile court
on February 23, 1996. Creasie
challenges the juvenile court’s decision dismissing Milwaukee County’s petition
to extend the dispositional order placing her in her grandmother's home.
Creasie claims the juvenile court erroneously exercised its discretion in
determining that the County had not proved by clear and convincing evidence a
basis to extend the dispositional order.
She contends that the juvenile court’s determination was not a proper
exercise of discretion because her mother had not met two of the conditions of
her return established earlier by the juvenile court and she claims the court
failed to make findings of fact and conclusions of law as mandated by
§ 48.365(2m)(a), Stats. Because the record reveals that the juvenile
court made the required findings and that the findings reflect a proper
exercise of discretion, the order is affirmed.[1]
I. Background.
Creasie and her three
brothers were found to be children in need of protection or services on
November 2, 1993. At the dispositional
hearing held later, Creasie was placed outside of her mother’s home with the
juvenile court setting conditions of return that had to be met by
Tammie F., Creasie’s mother. These
conditions consisted of: (1) cooperating with the Milwaukee County
Department of Human Services; (2) requiring follow-through with the
recommendations made in a June 1993 psychologist’s evaluation report; and
(3) participating in family therapy if requested by the children's
counselors and/or therapists. In 1994,
the juvenile court extended the order and set several new conditions for
Creasie's return. One of the new
conditions was a mutual desire on the part of Creasie and her mother to live
together, and the other condition was a requirement that Creasie's mother
undergo a psychological re‑evaluation and follow through with any
recommendations. While this order was
accomplished by stipulation of the parties, Tammie F. was not present at
this hearing and the juvenile court found her in default.
In October 1995, another
petition for extension and revision of the dispositional order was filed with
the court. After the petition for
extension was filed, Tammie F. filed a motion seeking Creasie's return to
her care. Following Tammie F.’s
motion, the County changed its position and informed the juvenile court and the
parties that it intended to withdraw the petition because it no longer believed
it could prove by clear and convincing evidence that Creasie was a child in
need of protection or services. Creasie
then filed her own petition for extension which the court dismissed as being
untimely filed. The juvenile court also
refused to allow the County to withdraw its petition and held a contested
hearing on January 3, 1996.[2]
At the conclusion of the
hearing, the juvenile court determined the County had not met its burden of
proof and dismissed the petition for extension. The court also dismissed Tammie F.’s motion for change of
placement, concluding it was moot.
II. Standard
of Review.
The decision whether to
extend a child in need of protection or services dispositional order is within
the juvenile court’s discretion and is to be based upon the evidence
presented. R.E.H. v. State,
101 Wis.2d 647, 653, 305 N.W.2d 162, 166 (Ct. App. 1981). The purpose of the hearing to extend the
dispositional order is to evaluate the child's progress and to determine
whether continued control is necessary.
Id. at 652‑53, 305 N.W.2d at 166.
III. Analysis.
The juvenile court was
presented with an unusual set of alliances in this case. The County, which originally filed the
petition for extension and unsuccessfully sought to dismiss it, sided with
Tammie F. in her quest to have her daughter‘s placement returned to
her. Creasie and her father, who is
currently incarcerated, desired the extension of the underlying dispositional
order permitting Creasie to continue living with her maternal grandmother.
Creasie argues that the
juvenile court erroneously exercised its discretion because her mother failed
to meet two previously set conditions for her return. Creasie posits that the juvenile court’s paramount concern in
deciding this case should have been Creasie’s best interest. She points to her mother's failure to meet
the conditions of return, coupled with her personal preference to live with her
grandmother as evidence that the best interest test was not met. She argues that had the juvenile court
applied the correct test, the court would have extended the dispositional
order. Thus, she concludes the juvenile
court erroneously exercised its discretion.
The statutory language
of the Children's Code does not, however, support her contentions. Section 48.365, Stats., provides for the extension of a juvenile
dispositional order, but any order of extension must comply with § 48.355,
Stats. Section 48.355(1) provides in relevant part: “The disposition shall employ those means
necessary to maintain and protect the child’s well-being which are the least
restrictive of the rights of the parent or child and which assure the care,
treatment, or rehabilitation of the child and the family.” Further, “[w]henever possible ... the family
unit shall be preserved and there shall be a policy of transferring custody
from the parent only where there is no less drastic alternative.” Id.
Clearly, the statute
demands that the juvenile court consider factors other than the child’s best
interest when it is deciding to extend a dispositional order. It is also apparent that tantamount to the
court's decision-making is the policy of keeping families united whenever
possible.
At the hearing, the
juvenile court heard evidence from several witnesses. The position of the Department of Social Services was conveyed to
the juvenile court through its representative, who opined: “[The Department's decision is] a
complicated one, but it’s that the child be returned to the mother.” The representative went on to explain that
further intervention was not necessary because the Department had nothing more
to offer in the way of services, Creasie had no special psychiatric needs, and
she was attending school regularly.
Further, the juvenile court heard that the other children had been
returned to their mother’s care and that there was no evidence suggesting the
mother was currently unfit or that her care and home were substandard. It was also revealed that the placement with
the grandmother was not problem free because Creasie had been a disciplinary
problem for the grandmother in the past.
Additionally, the
County's witnesses, while conceding that the current relationship between
mother and daughter was strained, told the court that the problems between
Creasie and her mother were essentially emotional in nature. With the exception of Creasie and her
father, all the witnesses and parties agreed that no harm would come to Creasie
if she returned to her mother’s home.
Several of the witnesses
addressed the issue of the unmet conditions of return. The juvenile court heard testimony that
Tammie F. had tried unsuccessfully to partake in family therapy with
Creasie, which was the recommendation of her psychologist following
Tammie F.'s re‑evaluation, but that Creasie and her grandmother
resisted this therapy and viewed it as a waste of time. With respect to the other unmet
condition—that is, a mutual desire by Creasie and her mother to live together—the
juvenile court was advised that Creasie, again, was the “stumbling block”
because she vigorously resisted her mother's attempt to secure her return.
Given the impossibility
of Tammie F. totally meeting these conditions without securing Creasie's cooperation,
the juvenile court found that Tammie F. had “materially” and
“substantially” complied with the conditions.
Relying on the expert testimony of the treating physician, the juvenile
court adopted the physician's belief that teenage children do not always like
their parents and that this fact does not indicate that they are bad
parents. Later, the juvenile court
addressed this issue with Creasie, and stated:
I have never met a child in their teens
who was always happy with their mother.
Never. And I can guarantee you
that my children are not always happy with me, but, you start out trying to
work things out in the home, and that’s the vision of this State’s
legislation. It’s the law of this
State; the law of this land, and I think it’s appropriate now to enforce that.
Implicit in the juvenile
court's decision is the belief that the best interests of the child are not
always the same as the child's wishes.
In light of the testimony adduced and the unique family dynamics present
in this case, the juvenile court’s decision was a proper exercise of discretion
because there was a reasonable basis in the record for the decision.
Finally, Creasie argues
that the juvenile court failed to make findings of fact and conclusions of law
based upon the evidence as mandated by § 48.365(2m)(a), Stats.
This court's review of the record, however, does not support this
contention. The juvenile court's oral
decision, although brief, advised the parties it was considering the testimony
of not only all of the witnesses, but also the entire file that the court
re-read prior to rendering its decision.
The juvenile court then went on to explain the history of the case, the
stated purpose of the law, and the issue it had to decide. The court remarked that the conditions no
longer existed to extend the order and that the State had not met its burden of
proof. The juvenile court also
addressed Creasie and personally explained its decision to her. It is evident that the trial court followed
the dictates of the statute and made appropriate findings and conclusions. Accordingly, we affirm the order.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.