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COURT OF APPEALS DECISION DATED AND FILED April 15, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
¶1 CURLEY, P.J.[1] Terry L. M. appeals the order terminating his parental rights to his son, Simione M. Terry contends that he is entitled to a new dispositional hearing because the trial court erroneously exercised its discretion by terminating his parental rights without addressing all of the factors enumerated in Wis. Stat. § 48.426(3) (2005-06).[2] Because the record reflects that a preponderance of the evidence supports the trial court’s order, this court affirms.
I. Background.
¶2 Simione was born on July 16, 1996, and is the marital child of Terry and Ada M. He has five siblings. In October 2002, Terry brought Simione and two of his siblings into an office affiliated with the Milwaukee Bureau of Child Welfare (Bureau). At that time, Terry told a staff member that he did not have proper housing for his children and that he needed assistance. On June 6, 2003, Simione was found to be a child in need of protective services (CHIPS) and was placed outside of Terry’s home.
¶3 Terry was granted visitation rights to Simione. However, they were suspended due to his failure to appear at the visitations. He expressed a desire to restart his visitations, but would not guarantee that he would attend them. The Bureau was hesitant to restart the visitations because of how upset Simione was when his father would not show up. Additionally, through discussions with his case worker, Simione did not appear to want to restart the visits.
¶4 In May 2006, Simione was placed with a foster family. He fit in with the family and immediately began referring to the foster parents as “mom” and “dad.” Behavioral issues that Simione had been prone to at home and school began to disappear once he was placed with the foster family. He received and continues to receive treatment from a therapist, and he has no ongoing medical conditions.
¶5 The foster family allowed Simione to stay in contact with his biological relatives at his discretion. He chose to remain in contact with several of his siblings, but beyond inquiring into Terry’s well-being, he did not express a desire to make contact or rebuild a relationship with his father. Simione had Terry’s phone number and his foster family encouraged him to call, but he chose not to do so.
¶6 On February 22, 2007, the State filed a petition for the termination of Terry’s parental rights to Simione, alleging abandonment as grounds for termination pursuant to Wis. Stat. § 48.415(1)(a)2.[3] The petition was filed when Terry did not visit Simione or contact Simione by telephone or have any written or electronic contact with him for more than three months while he was placed outside of Terry’s home.
¶7 The foster family desires to adopt Simione, and at the time of the dispositional hearing, had nearly completed the adoption licensing process. Simione made it known that he is very excited by the prospect of being adopted by the foster family and that he wanted it to be done by the end of the summer of 2007.
¶8 On October 3, 2007, at a dispositional hearing at which Terry failed to appear, the trial court found him in default and determined that there were sufficient grounds to terminate his parental rights. Simione’s guardian ad litem was present and stated that the termination was in his best interests. The court found that it was in the best interest of Simione to be placed in the custody of the Bureau for the purpose of adoption by the foster family. The trial court stated:
Based on the record in this case, I find the State has met its burden by clear and convincing evidence. There are grounds here for termination based upon the documents which the court has taken judicial notice in addition to the testimony of [the Bureau case worker assigned to Simione’s case]. And in particular I do find that there has been abandonment within the statutory definition as to both parents. So I think it’s clear on this record that grounds do exist to the level required under the statute.
… And based upon that I do find as a disposition that it is in the best interest of Simione to have the rights of his parents terminated at this time, also based on the willing and adoptive resource available and even more importantly based upon Simione’s desire to achieve permanency through an adoption with the [foster] family.
So I do find that the State has established that his two birth parents are unfit by virtue of abandonment, and that the disposition [that] is in his best interest according to the statute and all the other factors is TPR and adoption.
¶9 A written order terminating Terry’s parental rights was filed. Terry then filed a motion for reconsideration, which the trial court denied. This appeal follows.
II. Analysis.
¶10 Whether circumstances warrant termination of parental rights is
within the trial court’s discretion. David
S. v. Laura S., 179
¶11 Terry argues that the trial court erroneously exercised its discretion when it terminated his parental rights without specifically addressing three of the six factors listed in Wis. Stat. § 48.426(3). According to § 48.426(3), a trial court shall consider, but is not limited to considering, the six factors specified as follows:
(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.
Sec. 48.426(3)(a)-(f).
¶12 Terry argues that the trial court never addressed Simione’s age and health; whether Simione has a substantial relationship with family members and whether it would be harmful to sever those relationships; and the duration of the separation between Simione and Terry. Wis. Stat. § 48.426(3)(b)-(c), (e). He argues that pursuant to State v. Margaret H., 2000 WI 42, ¶¶38-39, 234 Wis. 2d 606, 610 N.W.2d 475, this court must remand to the trial court for a new dispositional hearing if the trial court failed to evaluate all of the § 48.426(3) factors on the record.
¶13 Contrary to Terry’s contention, Margaret H. does not make
remand for a new dispositional hearing the exclusive option for an appellate
court when inadequate findings are presented.
Four additional options are given, including: “1) look[ing] to an available memorandum
for findings and conclusions; 2) review[ing] the record anew and
affirm[ing] if a preponderance of evidence clearly supports the judgment; 3) revers[ing]
if the judgment is not so supported; or 4) remand[ing] for further
findings and conclusions.” Margaret
H., 234
¶14 Terry argues that even with these other options available, Margaret H.
stated a preference for a remand for further findings and conclusions in family
law cases when there are inadequate findings of fact, so that the appellate
court does not “curtail the [trial] court’s discretion in this matter and
substitute [its] judgment.”
¶15 In Margaret H., the supreme court held that the trial court erred
by evaluating the Wis. Stat. § 48.426(3)
factors under the best interests of the parent, and not the child.[4] Margaret H., 234
¶16 In this case, the trial court failed to specifically address
three of the six Wis. Stat. § 48.426(3)
factors in its holding. The trial court
mentioned, however, that the basis of its holding was the record in general,
the CHIPS dispositional orders and portions of the petition for termination of
parental rights, which the court took judicial notice of, and the testimony of
the Bureau case worker assigned to Simione’s case. Therefore, because the trial court
articulated that these items were used to reach its determination, this court
will “independently review the record to determine whether it provides a basis
for the court’s exercise of discretion.”
State v. Mainiero, 189
¶17 A valid exercise of discretion requires a process of reasoning
based on “facts that are of record or that are reasonably derived by inference
from the record and a conclusion based on a logical rationale founded upon
proper legal standards.” McCleary
v. State, 49
¶18 Terry takes issue with the trial court’s consideration of three of the Wis. Stat. § 48.426(3) factors. However, a review of the record shows that evidence related to each of the three § 48.426(3) factors was thoroughly presented and supported the trial court’s decision that termination of Terry’s parental rights was in Simione’s best interest. This court will address each factor in turn.
¶19 The first Wis. Stat. § 48.426(3) factor that Terry claims was not adequately considered by the trial court, Simione’s age and health at the time of disposition and at the time of removal from Terry’s home, is thoroughly supported by the record. See Wis. Stat. § 48.426(3)(b). The Bureau case worker assigned to Simione’s case testified that Simione was approximately six years old when he was removed from Terry’s home and was eleven years old at the time of the dispositional hearing and has not had any ongoing medical problems. At the time Simione was removed from Terry’s home and placed into foster care, he had behavioral problems. Since moving into the foster family’s home, he has received treatment from a therapist and his behavior has improved drastically, to the point that the problems have all but disappeared. Based on the record, Simione is healthy and his behavior has improved since being removed from Terry’s home.
¶20 The record contains evidence supporting factor three of Wis. Stat. § 48.426(3), Simione’s relationships with his family members and whether it would be harmful to Simione to sever those relationships, which was not articulated in the trial court’s holding. See Wis. Stat. § 48.426(3)(c). There was testimony at the dispositional hearing that Simione has not had contact with his father since January 2006, and has not had contact with his mother since October 2006. The trial court found that both have abandoned Simione, and he stated that he did not wish to continue to have a relationship with either parent. Simione does retain a relationship with his siblings, which the foster family has encouraged him to have and allowed him to continue. Because these facts support the trial court’s holding, termination of Terry’s parental rights will not be detrimental to Simione’s familial relationships.
¶21 Finally, the third factor Terry argues was not addressed by the trial court is the duration of separation of Simione from Terry. See Wis. Stat. § 48.426(3)(e). Although this factor was not expressly mentioned in the trial court’s holding, it was presented to the court through the Bureau’s case worker’s testimony. He testified that Simione has been outside of Terry’s home since October 2002. This evidence of a long separation, when looked at in conjunction with Simione’s happiness with his situation and his behavioral improvement, supports the trial court’s exercise of discretion.
¶22 After a review of the record, this court holds that the trial court did not erroneously exercise its discretion when it terminated Terry’s parental rights because a preponderance of evidence supports the trial court’s order. Therefore, the order is affirmed.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge, pursuant to Wis. Stat. § 752.31(2)(e) (2005-06).
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] The petition sought to terminate the parental rights of both Terry and Simione’s mother. Only the termination of Terry’s parental rights are at issue in this appeal, and proceedings involving Simione’s mother will therefore not be addressed.
[4]