COURT OF APPEALS DECISION DATED AND RELEASED February 14, 1996 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1368-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of
Brittany B.,
A Child Under the Age
of 18:
WAUKESHA COUNTY,
Petitioner-Respondent,
v.
SARA B.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Waukesha County:
J. MAC DAVIS, Judge. Affirmed.
BROWN, J. Sara B. appeals from a dispositional order
determining that her daughter, Brittany B., is a child in need of protection
and services. Specifically, the order
provides that Sara's discharge of her parental responsibilities for Brittany
must be supervised by the Waukesha County Department of Health and Human
Services.
Appellate counsel for
Sara, Attorney Judith M. Paulick, filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Pursuant to the order of this
court, Paulick also submitted an amended no merit report on November 10,
1995. Sara has not filed a response to
either document.
The no merit reports
focus first on whether the record supported the trial court's dispositive
determination that Brittany was a child in need of protection or services under
§ 48.13(10), Stats. We conclude that the record does support the
trial court's findings of fact underlying its determination.
A trial court's factual
findings will not be disturbed on appeal unless they are clearly
erroneous. See § 805.17(2),
Stats. This standard is essentially the same as the "great weight
and clear preponderance" test, and we sometimes refer to that test for an
explanation of the "clearly erroneous" standard. Noll v. Dimiceli's, Inc., 115
Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct. App. 1983). Under the "great weight and clear preponderance" test:
The
evidence supporting the findings of the trial court need not in itself
constitute the great weight or clear preponderance of the evidence; nor is
reversal required if there is evidence to support a contrary finding. Rather, to command a reversal, such evidence
in support of a contrary finding must itself constitute the great weight and
clear preponderance of the evidence.
Cogswell
v. Robertshaw Controls Co., 87 Wis.2d 243, 249-50, 274
N.W.2d 647, 650 (1979). "When more
than one reasonable inference can be drawn from the credible evidence, the
reviewing court must accept the inference drawn by the trier of
fact." Id. at 250,
274 N.W.2d at 650.
Here, the record
submitted for trial before the court was replete with examples indicating that
Sara routinely failed to provide Brittany with adequate clothing, medical care
or protection from risk of injury. The
record was undisputed that Sara failed to take those steps necessary to ensure
Brittany's regular attendance at preschool, despite the provision of tuition
and transportation by the Red Cross and the Waukesha County Department of
Health and Human Services. It was
undisputed that Brittany is developmentally delayed, has not grown
significantly since her birth, and was diagnosed as suffering from a
failure-to-thrive syndrome. At least
one cause of her failure to thrive was documented to be her mother's failure to
feed her adequately.
In light of the evidence
submitted, the trial court found that Brittany has "substantial problems
that have and are likely, if not remedied or addressed, will in the future
interfere with her optimum development, physically and otherwise." The trial court catalogued these problems as
including Brittany's marginal weight and size, substantial history of illness
and her developmental delay. The trial
court also took note of Sara's failure to provide Brittany with adequate
clothing, food and routine diapering.
Finally, the trial court found that Sara had failed to use an available
car seat or safety belt when transporting Brittany. Relying on § 48.13(10), Stats.,
the trial court concluded that the record showed that Brittany's parents had
failed to provide her with the necessary care so as to "seriously
endanger" the child's health.
We conclude that the
trial court's findings of fact were not clearly erroneous within the meaning of
Noll. We further conclude
that the inference of neglect drawn by the trial court was a reasonable
one. Accordingly, we must accept it
under our rules of appellate review. See
Cogswell, 87 Wis.2d at 249-50, 274 N.W.2d at 650.
The second issue
identified in the no merit report was whether the trial court erred in entering
its order and plan regarding Brittany.
The trial court's order incorporated a treatment plan directing
Brittany's parents to attend parenting classes, provide Brittany with adequate
food, clothing and medical attention, protect her safety, continue her
participation in preschool, and meet and cooperate with certain social services
professionals regarding Brittany's well-being.
The trial court's order carefully targeted the areas of concern raised
at trial and limited its terms to one year.[1] This court cannot find any error with respect
to the order, the terms of its implementation or its duration.
After an independent
review of the record, we conclude that there is no arguable merit to any
additional issue that could be raised on appeal. Therefore, we affirm the trial court's dispositional order and
relieve counsel from further representing Sara in this matter.
By the Court.—Order
affirmed.
[1] The trial court's order expired prior to the issuance of this opinion due to this court's request for an amended no merit report. Accordingly, this court concludes that resort to the doctrine of mootness is not appropriate in this appeal. But see City of Racine v. J-T Enters. of America, Inc., 64 Wis.2d 691, 701-02, 221 N.W.2d 869, 875 (1974) (court has discretion to decline to rule on moot cases unless exceptional or compelling circumstances are present).