COURT OF APPEALS
DECISION
DATED AND FILED
May 27, 2009
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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In re the termination of parental rights to Jacob D. W., a person
under the age of 18:
Crystal L. S.,
Petitioner-Appellant,
v.
Lutheran Social Services of Wisconsin
and Upper Michigan,
Inc., as guardian for Jacob D. W.,
Respondent-Respondent,
Jacob L. D.,
Respondent.
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APPEAL
from orders of the circuit court for Chippewa
County: stephen
r. cray, Judge. Affirmed.
¶1 HOOVER, P.J. Crystal
L. S. appeals an order granting her petition to terminate her parental
rights to Jacob D. W. and an order denying her postdisposition motions. Crystal argues
the circuit court failed to follow the statutory procedures for determining
both whether her consent was informed and voluntary and whether termination was
in Jacob’s best interest. We reject Crystal’s arguments and affirm.
BACKGROUND
¶2 Crystal petitioned to
terminate her and the father’s parental rights to Jacob, five days after his
birth. Both parents appeared at the
hearing without counsel and consented to termination. Also present were Jacob’s guardian ad litem
and an attorney representing Lutheran Social Services (hereinafter, the agency).
¶3 The agency’s attorney questioned Crystal
regarding her voluntary consent. She
stated she understood that neither the guardian ad litem nor the agency
attorney represented her and that she had the right to an attorney, and chose
to waive that right. In response to the
agency attorney’s lengthy questioning, Crystal
explained to the court her understanding of what it meant to terminate her
parental rights. She stated she wished
to terminate her parental rights and had discussed her decision with her
family, the father, and the agency.
¶4 During the hearing, Crystal
signed two forms that she had reviewed: a consent to termination of parental
rights, and a voluntary consent to termination of parental rights. The first was a standard court form,
and the second was a four-page prepared document that, among other things,
explained the constitutional and parental rights Crystal was giving up, presented
alternatives to termination, and stated the termination decision was
final. That form also repeatedly stated Crystal believed it was in Jacob’s best interest to
terminate her parental rights, and she also testified to that belief.
¶5 The guardian ad litem believed it was in Jacob’s best
interest to terminate the parents’ rights. The court concluded Crystal’s
consent was knowing and voluntary and termination was in Jacob’s best
interest. Thus, the court granted Crystal’s petition.
Crystal subsequently filed, pro se, a
notice of intent to pursue postdisposition or appellate relief, and both a
motion to vacate and motion for reconsideration, alleging new evidence. She later retained counsel, who filed a
motion to set aside the judgment based on fraud, misrepresentation, or other
misconduct. The court denied the motions
following a lengthy evidentiary hearing.
On appeal, Crystal does not renew any of
the arguments presented in her postdisposition motions.
DISCUSSION
¶6 Crystal first argues the
circuit court did not follow the procedure in Wis.
Stat. § 48.41(2), which states:
The court may accept a voluntary consent to termination
of parental rights only as follows:
(a) The parent appears personally at the hearing and
gives his or her consent to the termination of his or her parental rights. The judge may accept the consent only after
the judge has explained the effect of termination of parental rights and has
questioned the parent, or has permitted an attorney who represents any of the
parties to question the parent, and is satisfied that the consent is informed
and voluntary.
She also cites T.M.F.
v. Children’s Service Society, 112 Wis. 2d
180, 332 N.W.2d 293 (1983), where the court observed that the legislature “has
set forth the conditions under which the court may accept a parent’s voluntary
consent.” The court further stated:
The legislatively prescribed procedures underscore the
importance of the judicial proceeding to terminate parental rights when the
parent has given his or her consent. The
judicial proceeding is not a mere formality; the circuit court does not simply
rubber-stamp the parent’s consent. The
circuit court must ensure that the parent has adequately considered the decision
to terminate parental rights to the child, surely one of the most difficult
decisions a person can ever make.
Id.
at 186.
¶7 In contrast to the circumstances in T.M.F., however, Crystal does not contend she did not give voluntary and
informed consent. See id. at 184. She only argues the consent was invalid
because the court did not follow the Wis.
Stat. § 48.41(2) procedure.
Specifically, Crystal claims it was
improper for the agency attorney, rather than the judge, to explain the effect
of termination of parental rights. She
also claims it was improper for the agency attorney to question her regarding
her understanding and voluntariness because the agency was not a party.
¶8 We first conclude that because Crystal
did not object to either the court’s procedure or the agency attorney’s
participation at the hearing, she has forfeited her appellate right to assert
error on those bases. See State
v. Huebner, 2000 WI 59, ¶¶10-12, 235 Wis. 2d
486, 611 N.W.2d 727. Regardless, Crystal’s claims fail on the merits.
¶9 The circuit court’s determination that consent is informed
and voluntary is a conclusion of law. T.M.F.,
112 Wis. 2d at 188. However, because the conclusion is derived
from and intertwined with the factual inquiry, “‘the appellate court should
give weight to the [circuit] court’s decision, although the [circuit] court’s
decision is not controlling.’” Id. (quoting Wassenaar
v. Panos, 111 Wis. 2d 518, 331 N.W.2d 357 (1983)). We have reviewed the record and conclude Crystal’s consent was clearly both informed and voluntary.
¶10 While the court did not explain the effect of terminating
parental rights to Crystal, it would have been
redundant to do so. The agency attorney
asked Crystal what it meant and Crystal
explained in her own words: “I
voluntarily give up any right I would have to my child, raising him and having
any parental duties, making life-altering decisions, et cetera.” When asked why she would be willing to give up
those parental rights, Crystal stated she
believed it was in Jacob’s best interest because she did not feel she was adequately
prepared to be a parent. She explained
she held this belief “[e]ven though I know there’s programs out there to help,
I still don’t think that would be enough.”
¶11 In response to numerous further questions by the agency
attorney, Crystal demonstrated she understood both the constitutional and
parental rights she was giving up, that custody and guardianship would go to
the agency pending adoption, and that her decision to give consent was final. She further demonstrated that her consent was
not coerced in any way. Crystal
also had the two consent forms in front of her, which she signed after
acknowledging she knew and understood the longer, prepared document.
¶12 Additionally, the guardian ad litem questioned Crystal:
[Y]ou understand that if you weren’t comfortable with
this decision today, that the child could remain in foster care for up to six
months without a court order and even longer if you needed more time? Do you understand that?
Yes, I do.
Is that something you’re interested in at all?
No thank you.
The court then questioned Crystal and confirmed she had two years of schooling
beyond high school. Next, the entire
process was repeated with the father.
The court then concluded that both parents’ consent was informed and
voluntary and agreed with them that it was in Jacob’s best interest to terminate
their parental rights: “The testimony is
clear that, as to both [parents], … they have knowingly waived their legal
rights ….”
¶13 The circuit court here did not “simply rubber-stamp the parent’s
consent.” See T.M.F., 112 Wis. 2d at
186. Rather, the record confirms that Crystal “adequately considered [her] decision” to
terminate parental rights. See id.
As noted previously, Crystal does not now
claim her consent was either involuntary or uninformed. She has therefore not presented a prima facie
case that she is permitted to withdraw her consent. See Oneida County v. Therese S., 2008
WI App 159, ¶6, 762 N.W.2d 122 (parent must allege he or she did not know or
understand the information that should have been provided at the hearing). Stated otherwise, Crystal
has not shown she was actually prejudiced by the circuit court’s failure to
strictly follow the statutory procedure for accepting consent. See id., ¶¶18-19; see also Evelyn C. R. v. Tykila S., 2001 WI
110, ¶¶27-32, 246 Wis. 2d 1, 629 N.W.2d 768
(Wis. Stat. § 805.18(2), the
harmless error statute, applies to TPR proceedings). Although the court did not strictly follow the
statutory procedure here, there was substantial compliance and the statute’s
objectives were met.
¶14 We next address Crystal’s other
argument, that the circuit court failed to properly determine whether
termination was in Jacob’s best interest in accord with Wis. Stat. § 48.426(3).
That statute sets forth a nonexclusive list of six factors a court is to
consider:
(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.
Id. To exercise its discretion to terminate
parental rights, the circuit court must consider the statute’s six
factors. A.B. v. P.B., 151 Wis. 2d 312, 318, 320, 444 N.W.2d 415 (Ct. App.
1989). “The 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.” Sheboygan Cty.
DHHS v. Julie A.B., 2002 WI 95, ¶¶29-30, 255 Wis. 2d
170, 648 N.W.2d 402. Nonetheless, if a
circuit court does not explain the reasons for a discretionary decision, we may search the record
to determine whether it supports the court’s decision. Randall
v. Randall, 2000 WI App
98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737.
¶15 Crystal argues we must reverse
because the circuit court did not mention Wis.
Stat. § 48.426(3) or its factors or give any other reasons for
concluding termination was in Jacob’s best interest. She further asserts there was no testimony or
evidence regarding any of the factors. We
agree that the court should have specifically addressed the factors and
explained its reasoning on the record.
Nonetheless, the record demonstrates the failure to do so constitutes
harmless error in this case.
¶16 Much of the same evidence that supported a finding of knowing
consent also supported the best interest determination. First and foremost, the parents had considered
alternatives and still believed termination was in Jacob’s best interest. See A.B., 151 Wis. 2d
at 322-23. Not only did the parents stipulate that
termination was in Jacob’s best interest, but Jacob’s guardian ad litem also
held that belief. Further, the termination
was sought to permit an adoption. This
fact weighs strongly in favor of the court’s determination that termination was
in Jacob’s best interest. See id.
at 322. The record also contained
several agency reports, setting forth the parents’ reasons for choosing
adoption, the parents’ social history information, Jacob’s health records, and an
adoption plan. Additionally, the court’s
order set forth the statutory factors and indicated the court had considered
them.
¶17 Finally, looking specifically to the six Wis. Stat. § 48.426(3) factors,
none of them weigh against termination here.
First, adoption was already planned to occur after termination. Second, Jacob was a healthy newborn, also
indicating adoption was likely. Third,
because he was a newborn and was immediately placed in a foster home, Jacob had
no substantial relationships with any parents or family members. Fourth, being a newborn, the child’s wishes
were irrelevant. Fifth, because a
newborn has no ability to form permanent memories, the duration of separation
was not highly relevant. Regardless,
Jacob had been separated from his parents since his discharge from the
hospital, aside from a single visit. Sixth,
termination would enable Jacob to transition from foster care to a more stable,
permanent family relationship with his adoptive family. Crystal explains
neither how she was prejudiced by the circuit court’s failure to state on the
record that it had considered the statutory factors nor how a different outcome
is reasonably possible.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.