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COURT OF APPEALS DECISION DATED AND RELEASED JULY
25, 1995 |
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. 95-0598
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
IN THE
INTEREST OF
AUBREONA
S. G., a person
under
the age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
MICHAEL
G.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Pierce County: ROBERT W. WING, Judge. Affirmed.
CANE,
P.J. Michael G. appeals an order
transferring legal custody of his daughter, Aubreona G. (d/o/b 5/11/94), to the
Pierce County Department of Human Services.
Michael's sole issue on appeal is whether the trial court erred by
transferring custody because the record contained insufficient facts to support
the trial court's action. Because this
court concludes that there is sufficient evidence in the record to support the
trial court's decision, the order of the trial court is affirmed.
Michael
is the natural father of Aubreona.
Michael was adopted at the age of fourteen months and reports being
severely abused by his adoptive parents.
He has an extensive juvenile and criminal record. Michael was convicted of battery to a child
under the age of thirteen, a class E felony, in Indiana on November 2,
1993. He was sentenced to two years in
prison, but served thirty-nine days and was then released to a halfway
house. Michael was released from the
halfway house in Indiana after six months on May 16, 1994.
Lora
G. is Aubreona's natural mother, and Lora is from a dysfunctional family. Her mother was accused of neglecting Lora
and her siblings while they were children.
Lora's mother once fled Wisconsin to avoid an action against her for
neglect. Lora has also spent a significant
amount of her childhood in foster care in a number of different states. Four of her siblings are currently in foster
homes due to neglect. Lora has a borderline
intellect and, as a result, requires special teaching and is easily
manipulated. She has a limited formal
education, attending Castle High School until the eleventh grade but dropping
out due to pregnancy. Lora later
re-enrolled in school at Ellsworth High School but again dropped out because of
pregnancy.
Michael
and Lora have experienced marital difficulties. At the time of Aubreona's abuse, they had separated but were
attempting to work things out. At that
time, Michael was living in Red Wing, Minnesota, with a woman and her three
children. That residence was notorious
for holding loud parties where illegal drugs and alcohol were used. The home was observed to be "disheveled
and unkept." At the time of the
dispositional hearing, Michael was again living with Lora in Ellsworth,
Wisconsin. However, Lora had filed for
a divorce.[1]
THE
ABUSE
On
June 20, 1994, Michael expressed his desire to spend a few days with
Aubreona. He picked her up from Lora
and returned to Red Wing. When Michael
took the child, she had no visible bruises or cuts.
Michael
abused Aubreona on June 22, 1994.
Michael has stated that he was drinking that day. He initially stated that he had kicked the
child on his way off the couch. He
later stated:
I accidently kicked her in the head. Well, sometime later on than that, later on
she must have woke up and I must have fucking hit her. I don't know why, you know, I think I guess
because she was crying or she was hungry I guess and I was still hung over I
guess.
Shortly after the incident Lora arrived to pick up
Aubreona. At that time she noticed that
the child had an abrasion and bruise on her right chin, as well as a hand-sized
red mark on the left side of her face.
Lora took the child to the police department. The child was then taken to the hospital to receive treatment.
On
June 23 and 24, 1995, the Pierce County Department of Human Services received
several referrals concerning Michael and Lora's child Aubreona. These referrals alleged that Michael had
physically abused his daughter and expressed concern over the mother's ability
to properly care for the child. The
department investigated the reports and Aubreona was taken into Pierce County
custody on June 25, 1995.
The
county filed a CHIPS petition with the court on June 27, 1995. Both parents initially opposed the petition,
but after receiving advice from counsel, Michael and Lora admitted to the
petition. The court adjudged Aubreona
to be a child in need of protective services.
The
dispositional hearing was held on September 16, 1994. The trial court adopted the Department of Human Services
recommended dispositional order, including transfer of legal custody of the
child to the department. Michael
objected only to the provision of the order that transferred custody. Michael argued that taking custody from him
was unnecessary. He maintained that
there were less intrusive ways to insure Aubreona's safety. However, the trial court stated that the
child's best interests could only be protected by transferring legal custody,
and entered an order to that effect.
DISCUSSION
The
disposition of a case in which a child is judged to be in need of protective
services is a matter within the trial court's discretion. Section 48.345, Stats. The trial court
has a large number of dispositional options, § 48.34, Stats., including the transfer of legal custody when
rehabilitation or treatment cannot be voluntarily achieved. Section 48.34(4), Stats. When
determining what action to take, the child's best interests are of paramount
concern to the court.
Section 48.01(2), Stats. The trial court has wide discretion in
deciding what is in the child's best interests. State ex rel. Hannon v. Eisler, 270 Wis. 469, 479,
71 N.W.2d 376, 382 (1955). The trial
court's exercise of discretion will be upheld on appeal if it was the product
of a rational mental process and was based upon facts appearing in the
record. Hartung v. Hartung, 102
Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
Michael
asserts that there is insufficient evidence in the record to justify the trial
court's decision to transfer custody of Aubreona to the county. He claims that the trial court's
determination that he or the mother may flee with the child was not the product
of a rational thought process. We are
not persuaded.
The
record contains the following evidence: (1) Michael had been convicted of
felony child abuse; (2) Michael abused Aubreona less than two months after
his release from custody for child abuse; (3) Michael had a history of movement
from one state to another; (4) Lora had a history of movement from state to
state; (5) Lora was neglected as a child and has no positive parenting
role model; (6) Lora lived in a community near the border of Wisconsin; (7)
Lora had a borderline intellect and was easily manipulated; and (8) Lora's
mother had once fled the state to avoid state action for child neglect.
The
court stated that it feared the parents might flee from the state,[2]
and that Aubreona's best interest was its primary concern. The trial court explained that it was not
taking this action to punish either parent.
However, the court also mentioned its concerns regarding Michael and
Lora's current living arrangements and wondered whether the divorce would be
pursued. The court added that it
believed Lora was sincere in her desire to care for her child. The court stated that it only wanted to
guarantee Aubreona's safety and well-being and it believed the best way to
accomplish this goal was by temporarily transferring custody of Aubreona to the
county.
It
is clear that the trial court reached its decision carefully. The trial court considered the interests of
all the parties. It considered the
effects of its actions on the relationship between the child and its
parents. However, the court still
stated that it felt that transfer of custody was necessary to guarantee the
child's safety and well-being. This
court concludes that the trial court's exercise of discretion was based upon
sufficient evidence and was the product of a rational mental process.
By
the Court.—Order affirmed.
This
opinion will not be published. Rule 809.23(1)(b)4, Stats.