|
COURT OF APPEALS
DECISION
DATED AND FILED
April 17, 2008
David R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
|
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.
|
|
|
Appeal No.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
DISTRICT IV
|
|
|
|
|
|
|
|
In re the termination of parental rights to Jesse E.,
a person under the age of 18:
La Crosse County Department of Human Services,
Petitioner-Respondent,
v.
Crystal T.,
Respondent-Appellant.
|
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for La Crosse County: scott
l. horne, Judge. Affirmed.
¶1 LUNDSTEN, J. Crystal
T. appeals the circuit court’s order terminating her parental rights to her
son, Jesse E. We affirm the order.
¶2 Crystal
argues that the circuit court erred when it terminated her parental rights because
it failed to adequately address all of the required factors under Wis. Stat. § 48.426(3). Crystal’s
brief seems to suggest that the court’s consideration of all six statutory
factors was inadequate. Crystal makes specific
arguments, however, with respect to only two factors and, therefore, we address
only those two factors. Crystal argues that the
court failed to adequately consider the likelihood of Jesse’s adoption after
termination and whether Jesse has a substantial relationship with her. See § 48.426(3)(a) and (c).
¶3 Before addressing Crystal’s
specific arguments, we note that Crystal
seems to assume that the only information the circuit court did or could
consider was the Department’s six-page “Termination of Parental Rights Report
to the Court.” Crystal provides no legal or factual basis
for this assumption. The Department
argues in its responsive brief that the circuit court had before it evidence in
addition to the report. Crystal does not reply to
this argument. Moreover, we know of no
authority directing that a circuit court may rely only on the Department’s report. Accordingly, we take Crystal to have conceded that we may consider
the evidence cited by the Department. See Hoffman
v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606
N.W.2d 590 (Ct. App. 1999) (“An argument to which no response is made may be
deemed conceded for purposes of appeal.”); see
also M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366
(Ct. App. 1988) (courts need not consider undeveloped arguments).
Standard Of Review
¶4 A circuit court’s decision whether to terminate parental
rights is discretionary. See
Sheboygan County Dep’t of Health & Human
Servs. v. Julie A.B., 2002 WI 95, ¶42, 255 Wis.
2d 170, 648 N.W.2d 402; David S. v. Laura S., 179 Wis. 2d 114, 150, 507
N.W.2d 94 (1993). In exercising its
discretion, the circuit court “should explain the basis for its disposition, on
the record, by alluding specifically to the factors in Wis. Stat. § 48.426(3) and any other factors that it
relies upon in reaching its decision.” Julie
A.B., 255 Wis.
2d 170, ¶30. We will not reverse findings
of fact underlying a discretionary decision so long as those findings are
supported by the evidence of record and are not clearly erroneous. See Englewood Cmty.
Apartments Ltd. P’ship v. Alexander Grant & Co., 119 Wis. 2d 34, 39, 349
N.W.2d 716 (Ct. App. 1984).
Likelihood Of Adoption Factor
¶5 In its decision, the circuit court considered the likelihood
of adoption, finding that “[i]t appears that … the foster parents are willing
to adopt.” Crystal argues, however, that “[t]here [was]
no factual basis for the [circuit] court’s finding that there was a likelihood
of adoption.” Crystal concedes that the Department’s report
states that Jesse’s foster parents are willing to adopt Jesse, but argues that
this information does not establish the likelihood of adoption. Therefore, Crystal asserts, the court was unable to adequately
address the likelihood-of-adoption factor when the court found that the foster
parents “appear[ed] … willing to adopt.”
¶6 In rejecting Crystal’s
argument, we first note that Crystal
cites no authority requiring the circuit court to find that adoption is likely. Rather, what the statute requires is that the
circuit court consider the likelihood of
adoption. See Wis. Stat. § 48.426(1)
and (3)(a); see also Wis. Stat. § 48.428(1) (authorizing
the court to order sustaining care for a child if the court terminates parental
rights and finds that the child is unlikely
to be adopted or that adoption is not in the child’s best interest). The circuit court did consider the likelihood
of adoption in this case.
¶7 Perhaps Crystal is arguing that the circuit court erred
because Jesse’s adoption was not sufficiently
likely to support termination of her parental rights. If that is what she is arguing, we reject that
argument because she does not provide a developed explanation of how likely
Jesse’s adoption had to be.
¶8 Perhaps Crystal is instead arguing that there is insufficient
evidence to support the circuit court’s finding that Jesse’s foster parents “appear[ed]
… willing to adopt.” If that is Crystal’s argument, we reject
it because the Department’s report plainly supports the court’s finding. Moreover, as the Department points out, the
circuit court also had before it a letter from the Department’s adoption consultant. That letter stated that “[t]he permanency
plan for this child is adoption” and that “[t]he plan at this time is that the
current foster/adoptive parents … will adopt Jesse.”
¶9 In addition, there is an exchange on the record between the circuit
court and the adoption consultant immediately following the court’s decision that
confirms that the circuit court adequately considered the likelihood of
adoption. During the exchange, the court
inquired whether the adoption would conclude within the next six months, and
the consultant responded by informing the court that the adoptive family had
started a home study, that “things [were] progressing as fast as they can,” and
that “in the next six months the adoption should happen.”
Substantial Relationship Factor
¶10 Jesse was approximately 22 months old at the time of the
dispositional hearing and order. As
relevant to the substantial relationship factor, the circuit court found as
follows:
This appears to be a young man
who was removed from his home, in fact, never really went home but was removed
very quickly after birth. There have
been efforts to reunite Jesse with the parents, but as the jury has found, I
think in part because of the emotional limitations and in part because one or
both of the parents, I guess, had other priorities, they did not establish a
strong bond with Jesse.
… I think [Crystal] probably has some fairly strong
emotional attachments, but hasn’t or couldn’t, I guess, do what was required to
become an effective parent.
I don’t know that Jesse has a
strong bond with the parents. I think in
part that’s because of parenting techniques, lack of—you know, some neglect, in
part because of a failure to really maintain communication, maintain contact
with Jesse.
At this point it appears that
he views the foster parents as in real terms as his parents. They’re the people that he’s had the
strongest bond, the strongest relationship with over the past year and a half or
so.
In another part of its
decision, the court also referenced Jesse’s “lack of a strong relationship”
with his biological parents.
¶11 Crystal
argues that the record lacks a factual basis for the circuit court’s finding of
no substantial relationship between Crystal and Jesse. She concedes that the Department’s report
concludes that there was not a substantial relationship between Crystal and
Jesse, but argues that the circuit court nonetheless had insufficient
information to find that she did not have a substantial relationship with
Jesse. We reject this argument for the
reasons that follow.
¶12 Part of Crystal’s
argument seems to be that the Department’s report was insufficient because the
report provided no underlying factual basis for its conclusion. We disagree.
The report, dated approximately two weeks before the dispositional
hearing, shows Jesse’s birth date as December 23, 2005, and states that “Jesse
[] has been separated from his mother and father since December 23, 2005 when
he was taken into custody and placed in emergency foster care.” The report also states that Crystal had not seen Jesse since July 25,
2007, when she chose to stop attending visits with Jesse.
¶13 In any event, we need not decide whether the report by itself supplies
a sufficient factual basis for the circuit court’s finding of no substantial
relationship. As the Department points
out, the circuit court also had the benefit of evidence presented at the fact-finding
or “grounds” phase of the termination proceeding. This evidence included specific information
supporting a finding of no substantial relationship. For example, the court heard testimony that Crystal visited with Jesse
only once per month between April and July 2007. The court also heard testimony that Crystal had difficulty
forming a connection with Jesse.
¶14 When we consider all of the information the circuit court had
before it, we are satisfied that the court’s finding of no substantial
relationship is adequately supported, particularly given that Crystal directs
us to no evidence supporting a contrary finding.
¶15 Finally, Crystal
seems to be arguing that the circuit court’s statement that “I don’t know that
Jesse has a strong bond with his parents” should be seen as a concession by the
court that it did not know whether there was a strong bond. Read in context, however, it is apparent that
the court’s “I don’t know” statement was a common turn of phrase meant to
convey the court’s belief that the evidence showed that Jesse did not have a strong bond with his parents.
¶16 In sum, for the reasons stated above, we reject Crystal’s arguments that
the circuit court erroneously exercised its discretion when it terminated her
parental rights.
By the Court.—Order affirmed.
This
opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.