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COURT OF APPEALS DECISION DATED AND RELEASED September 6, 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. 95-1576
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
TIFFANY W. AND
MYOKRA W., CHILDREN
UNDER THE AGE
OF EIGHTEEN:
DAVID C. and BEVERLY
C.,
Petitioners-Appellants,
v.
MILWAUKEE COUNTY
DEPARTMENT
OF HUMAN SERVICES,
STATE OF WISCONSIN,
GWEN E.,
THOMASA W. and
ATTORNEY MICHAEL J.
VRUNO,
Guardian ad Litem,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
MEL FLANAGAN, Judge. Affirmed.
WEDEMEYER, P.J.[1] Beverly C. and David C. appeal from an
order that changes placement of their foster children, Tiffany W. and Myokra W. The order changed the girls' placement from
the C's home to the home of the girls' biological aunt, Gwen E. The C's claim that: (1) the trial court erred in finding that it
was in the children's best interests to change placement to the relative's home;
and (2) they did not receive a fair hearing on the placement issue. After careful consideration of the briefs
and the record, this court concludes that: (1) the trial court did not error in
its placement finding; and (2) the C's received a fair hearing. Accordingly, this court affirms.
I. BACKGROUND
In February 1990, Myokra
was placed, shortly after her birth, in foster care in the C's home because her
birth mother, Thomasa W., was unable to care for her. In August 1990, when Tiffany was sixteen-months old, she was also
placed in foster care with the C's. For
the next five years, both girls remained in this foster placement. Throughout this time, their biological aunt,
Gwen E., remained in contact with them.
In 1990 and 1991, the MCDHS[2]
permanent placement plan contemplated that the girls would eventually be able
to be returned to the care of their mother.
In November 1992, the permanent placement plan recommended termination
of parental rights and adoption by the foster parents.
When Gwen E. learned of
this revised recommendation, she advised MCDHS that she was interested in
having the girls placed with her. The
1993 and 1994 permanent placement plans recommended placement with a relative.
Prior to the
TPR/adoption discussions, the record indicates that the C's and Gwen maintained
positive and friendly interactions between the two families. Sometime after the TPR/adoption discussions,
however, friction and negative feelings between the C's and Gwen developed.
On March 31, 1995, MCDHS
served a Notice of Change of Placement to the home of Gwen E. for June 9,
1995. On April 5, 1995, the foster
parents filed objections to the placement change, pursuant to § 48.357(1),
Stats. A short time later, the foster parents also filed a Petition for
Review of Agency Decision, pursuant to § 48.64(4), Stats. The trial
court held a hearing to determine placement for these children. The hearing took place on May 22, 23 and 26,
1995. On May 31, 1995, the trial court
issued a written order changing the placement from the foster parents' home to
the home of the biological aunt. The
foster parents appeal from this order.
II. DISCUSSION
A. Introduction.
This court begins its
discussion with the acknowledgement that resolution of this appeal was very
difficult. The issues presented to this
court involve the well-being of two young sisters. Neither asked to be placed in this situation. Neither deserved to be placed in this
situation. No child deserves to be put
in the middle of a “tug of war.” This
court finds some solace in the fact that the tug of war was between two
families who undoubtedly love these girls very much.
It is in part because of
the obvious love on both sides, however, that makes the determination of what
is in the best interests of these two little girls extremely arduous. Accordingly, this court does not envy the
task shouldered by the trial court in deciding this issue. This court echoes the sentiments of the
trial court expressed at the conclusion of the hearing in this matter:
This
is truly a very difficult case.... The
public perception that somehow this is a simple decision or that it's an easy
decision or that there's only one answer is tragically wrong. There exists very compelling concerns on
both sides, issue in terms of placement, and they have to be weighed very
carefully.
....
I'm going to give [this decision] a very
careful review and review it according to the law and the facts that have been
presented.... I am going to, as I said,
continue to review all these facts and circumstances, but I think that in
justice to the children and in justice to everyone in this courtroom it has to
be said this is not an easy decision, and the perception that has repeatedly
been held forth to the public and to the media that this is a cut and dry
decision is unfair to these children.
This
court has sincere concern and sympathy for the girls, as well as for both
families involved. Accordingly, this
court takes the task of ruling on this appeal very seriously. The issues underlying this appeal involve a
multitude of human emotions that often times are beyond the capabilities of our
legal system. Nevertheless, these
issues are decided pursuant to our current rules of law that bind this court.
B. The
Best Interests of the Children.
The C's claim that the
trial court erred in finding that a placement change to their aunt's home was
in the best interests of the children.
Specifically, the C's argue that the trial court committed errors of law
because: (1) it did not effectuate the purposes of Chapter 48 as set forth in §
48.01(1), Stats.; and (2) it
failed to make a decision that was consistent with the children's best
interests as required by § 48.01(2).
The C's also argue that some of the trial court's findings of fact are
erroneous. This court rejects the C's
arguments.
A dispositional order
requires both the exercise of a high degree of judicial discretion and a result
which is in the children's best interests.
See § 48.01(2), Stats. “The exercise of discretion requires
judicial application of relevant law to the facts of record to reach a rational
conclusion.” State v. James P.,
180 Wis.2d 677, 683, 510 N.W.2d 730, 732 (Ct. App. 1993). The best interests standard involves a mixed
question of fact and law. See In
re Adoption of Randolph, 68 Wis.2d 64, 69, 227 N.W.2d 634, 637 (1975). Accordingly, this court reviews the facts
found by the trial court under the clearly erroneous standard; however, the
ultimate conclusion on those facts of where the best interests of the children
lie is a question of law. Id. Nevertheless, because a conclusion regarding
the children's best interests is so intertwined with the historical facts, this
court's review affords some deference to the trial court's determination. See Wassenaar v. Panos,
111 Wis.2d 518, 525, 331 N.W.2d 357, 361 (1983).
1. The
purposes of Chapter 48.
The C's claim the trial
court's decision was contrary to the purposes contained in § 48.01(1), Stats.
This section provides in pertinent part:
This chapter may be cited as “The
Children's Code”. This chapter shall be
interpreted to effectuate the following express legislative purposes:
....
(b)
To provide for the care, protection and wholesome mental and physical
development of children, preserving the unity of the family whenever possible.
....
(e) To respond to children's needs for care and
treatment through community—based programs and to keep children in their homes
whenever possible and, in cases of child abuse or neglect, to keep children in
their homes when it is consistent with the child's best interest in terms of
physical safety and physical health for them to remain at home.
....
(g) To provide children in the state with
permanent and stable family relationships.
....
(gg) To promote the adoption of children into
stable families rather than allowing children to remain in the impermanence of
foster or treatment foster care.
After a painstaking
review of the entire record in this case, this court cannot conclude that the
trial court's decision was contrary to the purposes expressed in this statute. In essence, the C's argument is that the
primary purpose of Chapter 48 is to return the children when possible to the
family of their parents, not to the family of their aunt. The C's argue that if the family of their parents
is not available, the purpose under § 48.01(1)(gg), Stats., of promoting adoption should be
exercised.
Although “family” is not
specifically defined in § 48.01, Stats.,
common sense, together with the definitions in § 48.02, Stats., suggest that the preference of reuniting children
with their families is not limited to reunification with parents. Section 48.01(15) specifically contemplates
the involvement of an aunt. Moreover,
our supreme court recently held that “family” can be defined in many ways. See Holtzman v. Knott, Wis.2d , 533
N.W.2d 419 (1995). Family may include
“all the members of a household under one roof,” or “a group of persons sharing
common ancestry.” See The American Heritage Dictionary 659
(3d ed. 1992). The law of this state
requires that every effort be made to reunite the children with their
biological families. See
§§ 48.355(1), 48.01(1)(e), (g), (gg), and 767.245, Stats. This court was
unable to discern any authority that limits the term “family” to the children's
parents. Therefore, this court rejects
the C's argument that the new placement does not effect the purpose of
reunification with “family” simply because that placement is with a biological
aunt rather than a parent.
2. The best
interests of the children.
Next, the C's argue that
the trial court erred in “removing the children from a loving and stable foster
family to the home of their maternal aunt, contrary to the recommendations of
the psychologists who filed reports and testified.”
In addressing this
contention, it is necessary to provide a summary of the witnesses' reports and
testimony. Fred R. Volkmar, M.D.
testified by affidavit. He is an
Associate Professor of Child Psychiatry, Pediatrics and Psychology at Yale
University Medical School. He was
retained in this case by the C's and offered the opinion that, because of the
amount of time that Tiffany and Myokra have spent with their foster parents, it
would be in their best interests to remain with the foster parents.
Stephen F. Emiley, Ph.D., is
a clinical psychologist who was retained by the court to do an evaluation of
the foster parents and of the aunt. He
submitted written reports and testified at the hearing. In his written reports, Emiley described
what could be considered negative characteristics with respect to both the C's
and Gwen. His conclusion in the reports
and in his testimony was that both families are capable of caring for the
children. He did not give any
recommendation regarding where these children should be permanently
placed.
Virginia Wright is a
staff psychologist at Children's Hospital.
She was appointed by the court to conduct interactive evaluations of the
children with each of the families.
That is, she observed each child interacting with aunt Gwen and observed
each child interacting with Mr. C. and Mrs. C.
She also conducted evaluations of each child. During these evaluations, Wright indicated that both girls
expressed comments illustrating their belief that they were supposed to talk
badly about their aunt. Wright's
interactive evaluation demonstrated that the girls enjoy and are comfortable
with their aunt.
Caroline Lenyard is
the court-appointed therapist who has been treating the girls most
recently. Lenyard also conducted
combined sessions between the C's and aunt Gwen in an attempt to resolve some
of the conflict and tension that exists among the adults. She reported that these sessions were not
successful. Lenyard recommends that the
girls be permanently placed with their aunt.
She initially felt that a gradual transition would be in the girls' best
interests, but if the C's are unable to be positive regarding Gwen, then an
immediate transfer would be appropriate.
Jerome Smith Ph.D.,
is a psychologist from Indiana who was retained by the C's. He testified that he is an “adoption
expert.” He observed the children at
the C's home and spoke with the C's. He
did not have any contact with aunt Gwen.
He reviewed many of the other witnesses' reports, but did not see
Emiley's evaluation of Gwen or the interactive evaluation of Myokra. He testified that removing the girls would
cause emotional and behavior problems and, because of the attachment they have
formed to their foster parents, removal would be traumatic.
Bonnie Finkler is
the foster care case worker who has been assigned to this case since August
1990. She recommends the change of
placement to the aunt's home because: (1) she believes the girls will have a
better sense of identity, personal history and self esteem; (2) she feels the
aunt is better able to separate her wants and interests from what is in the
best interests of the children than are the C's; (3) she is concerned about
Mrs. C's labeling of Tiffany as a disturbed child; and (4) she is
concerned about Mrs. C's overprotective tendencies.
In addition to these
witnesses, several teachers testified.
Two of the girls' teachers from their current schools testified that
both girls have commented that they did not want to go to their aunt's home to
visit. Two teachers from the school
that the girls will attend if transferred to their aunt's home testified. Both indicated that in visiting the school
with their aunt, the girls appeared happy to be with their aunt and were sad when
it was time to return to the foster home.
In addition, evaluations
of the “fitness” of both the C's home and Gwen's home were performed. Both homes received a stamp of
approval. It is also significant that
the girls' biological mother testified at the hearing. She indicated that she did not want her
parental rights terminated and that it would be okay with her if the girls are
placed with either the C's or Gwen.
In evaluating this
evidence, the trial court indicated:
The Court has weighed the many competing
concerns in reaching this decision. Of
great weight were the consistent and compelling reports, testimony, and
opinions of Dr. Stephen Emiley, who evaluated all of the adults and has
extensive experience with Children's Court proceedings; Dr. Virginia Wright,
who has had the opportunity to meet repeatedly with all of the adults and to
evaluate each of the children; Therapist Caroline Lenyard, who has also had
contact with the children over the last 18 months in therapy; the case worker,
Bonnie Finkler, who has followed the case and the children since 1990; and the
recommendation of the Guardian Ad Litem, Michael Vruno, who has represented the
interests of the children since the initiation of proceedings in Milwaukee
County. The Court has also weighed the potential
harm the children may experience if removed from their foster home against the
harm they are currently experiencing from emotional pressure and restricted
contact with their biological family.
The
trial court also made numerous findings of fact with respect to the witnesses'
testimony. It is evident from the
record that witnesses offered opinions in favor of both sides. Volkmar and Smith clearly felt that the C's
should retain placement of the girls.
Lenyard and Finkler felt strongly that the girls placement should be
changed to their biological aunt. Emily
offered positives and negatives with respect to both placements. The C's issue statement—that the trial court
ignored the recommendations of the psychologists that the children should not be
removed from the C's home—is partially erroneous.
The C's challenge to the
trial court's determination regarding the best interests of the children
essentially rests on the trial court's assessment of the credibility of the
witnesses. Witness credibility is left
to the exclusive domain of the finder of fact, here the trial court. Gehr v. City of Sheboygan, 81
Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977).
When conflicting evidence is presented, it is the duty of the fact
finder and not this court to determine the weight to be given to each version
and any conflicts are resolved by the fact finder. Rabata v. Dohner, 45 Wis.2d 111, 117, 172 N.W.2d
409, 411 (1969). Although this court
independently reviewed all of the reports and the entire hearing transcript, as
noted above, some deference is owed to the trial court in this matter and its
credibility determinations will not be disturbed unless it relied on evidence
that was “inherently or patently incredible—that kind of evidence which
conflicts with the laws of nature or with fully-established or conceded
facts.” State v. Tarantino,
157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
The
trial court decided to rely on those witnesses that favored placement with the
aunt. The evidence that the trial court
relied on was not “inherently or patently incredible.” The trial court relied on the opinions of
trained professionals who had an opportunity to personally interact or evaluate
the girls and both potential placements.
This court's independent
analysis of what is in the best interests of these two girls comports with the
conclusion reached by the trial court.
The factors for this decision are as follows. The evidence is such that both families are capable of caring for
these children. Factors favoring the
C's are that they have admirably cared for these girls for over five years, and
they have formed an attachment that undoubtedly will cause some emotional
distress if broken. The factors
favoring aunt Gwen are that: (1) the law in Wisconsin favors a return to the
biological family when possible; (2) the girls' sibling resides with the
aunt; (3) the aunt has demonstrated, through the protracted litigation
involved, her commitment to these children.
In addition, parental rights have not been terminated, nor does the
biological mother want her parental rights terminated. An adoption by the C's would require this,
and this court fears that the resulting legal battle would undoubtedly further
stress the children. Further, the tug
of war occurring over these innocent children was unnecessarily creating strain
on their emotional well-being. Children
are very observant. Attempts to shield
them from the tension and conflicts that occur are rarely one hundred percent
effective.
In evaluating what is in
these children's best interests, therefore, this court weighs whether the
benefits of growing up with their brother in their biological family outweighs
any emotional trauma the transfer may cause.
In this case, this court agrees with the trial court that the answer to
this question is yes. There is no
credible evidence that the aunt's home presents a threat; the aunt has special
training in dealing with young children with emotional disturbances; and the
evidence indicates that the aunt's natural children are healthy, happy kids.[3]
3. The trial
court's findings of fact.
Next, the C's challenge
several of the trial court's findings of fact.
Before addressing each of the challenged facts, this court notes that in
reviewing findings of fact, the issue is not whether this court, in retrospect,
would find the same or different facts, but whether there is reasonable support
in the record for the facts as found. See
In re Becker, 76 Wis.2d 336, 347, 251 N.W.2d 431, 435
(1977). This court's review is limited
to whether the facts found by the trial court are clearly erroneous.
The C's contend that the
trial court mischaracterized the views of the biological mother. The C's claim that the biological mother had
a preference for her girls to remain with the C's rather than be transferred to
their aunt. This court has
independently review the testimony of the mother and must reject the C's contention
in this regard. The mother's testimony,
viewed in its entirety, indicates that the biological mother would be okay with
either placement. The only thing that
the biological mother was emphatic about was her desire against a termination
of parental rights.
The C's next contend
that the trial court's finding that the children have been under pressure to
respond negatively to their biological family was erroneous. Again, this court cannot conclude that the
trial court's finding in this regard was clearly erroneous. The strongest evidence of the pressure the
girls perceived was revealed during the interactive evaluations conducted by
Virginia Wright. Wright observed the
girls questioning their aunt regarding whether she had food in her home, the uncomfortableness
each girl felt when questioned by the C's as to the girls' interaction with
their aunt, the secretive nature of certain responses, and the girls'
indication that they couldn't talk about certain things all support the trial
court's finding.
The C's next contend
that the trial court's finding that the girls will suffer trauma if they are
prevented from developing secure relationships with their birth family is
erroneous. Again, this court disagrees. There is evidence in the record that the
girls need this contact to develop self-esteem and a sense of personal history,
especially as they grow older.
The C's next contend
that the trial court misstated the recommendation of Dr. Wright. The trial court found that Dr. Wright
recommended removal from the foster home if the foster parents impede the
reintegration process. The only error
with the trial court's finding in this regard is that the trial court
attributes Dr. Wright's recommendation to her 1994 report. The C's are correct that this recommendation
is not explicitly contained within that report. However, a review of Dr. Wright's reports in toto, together with
her testimony at the trial, leads this court to conclude that it was
appropriate for the trial court to make this inference from Dr. Wright's
testimony regarding the importance of this custody “battle” being resolved
expeditiously.
The C's next challenge
the trial court's findings regarding alleged marital problems or domestic
troubles. The trial court's finding
stated: “T.W. also appears to be
experiencing stress related to the domestic situation in the home of the foster
parents. In April of 1995, T.W.
reported to Dr. Wright that she and M.W. were fearful of physical force, and
testing revealed pervasive concerns about parental conflict in the foster
home.” Again, there is evidence in the
record to support this finding—specifically Dr. Wright's evaluations. Accordingly, this court cannot say this
finding is clearly erroneous.
The C's also challenge
the trial court's findings regarding Lenyard's recommendations. This court has reviewed the challenged
findings as well as the record. With
the exception of the time reference of eighteen months, which this court does
not find significant, the record demonstrates that the trial court's findings
are supported.[4]
The C's also contend
that the trial court should have made additional findings with respect to aunt
Gwen. The lack of findings the C's
claim should have been included do not merit reversal. The fact that Gwen could not care for
Tiffany four or five years ago is irrelevant.
There are explanations contained in the record regarding why certain
visits were canceled and the fact that Gwen is a single mother with four other
children under her care does not mean she is incapable of caring for the
girls. The record demonstrates that the
evaluations of Gwen indicated that she is capable of caring for these children.
In sum, this court
cannot conclude that any of the findings challenged by the C's are clearly
erroneous.
C. Fair
Hearing.
The C's also claim that
they did not receive a fair hearing because:
(1) the trial court had made up its mind to change placement before
the hearing; (2) the foster parents were denied discovery rights; (3) the
trial court refused to grant a continuance requested by the foster parents
because they needed time to review the expert reports in order to adequately
represent their rights at the hearing; (4) the trial court struck many of the
foster parents' witnesses without cause, and the trial court struck portions of
the affidavit of Fred R. Volkmar, M.D., an expert witness retained by the
foster parents. This court rejects each
of these contentions for the reasons discussed below. Accordingly, this court concludes that the C's received a fair
hearing.
1. Pre-determination
by trial court.
The C's argue that the
trial court had determined, prior to the hearing, that it would order the
placement change. The record does not
support the C's contention. At the
conclusion of the hearing, the trial court indicated orally that it had not
made a placement decision and before ruling, the trial court wanted to again
examine the facts and the law on the issue.
This court's review of the transcripts lead to the conclusion that the
trial court's exposition at the close of the hearing was sincere. Accordingly, this court rejects the C's
argument that any pre-determination on the part of the trial court prevented
them from receiving a fair hearing.
2. Discovery.
Next, the C's argue that
they did not receive a fair hearing because they were denied discovery
rights. Specifically, the C's claim
that the trial court refused to allow them to depose Gwen E. and Thomasa W. and
that they could not depose the experts on their opinions and
recommendations. Section 48.64(4), Stats., defines the foster parents'
discovery rights. It provides in
pertinent part:
At
all hearings conducted under this subsection, the head of the home ... shall
have an adequate opportunity, notwithstanding s. 48.78(2)(a), to examine all
documents and records to be used at the hearing at a reasonable time before the
date of the hearing as well as during the hearing, to bring witnesses, to
establish all pertinent facts and circumstances, and to question or refute any
testimony or evidence, including opportunity to confront and cross-examine
adverse witnesses.
Prior
to the C's requesting a hearing, they did not have any discovery rights. See § 48.293, Stats.
Section 48.64(4), Stats., does not provide the C's with
the right to take depositions of unwilling witnesses. Therefore, the trial court's decision refusing them that right
did not violate the statute.
3. Continuance.
The C's also claim that
the trial court should have granted a continuance because they did not have
sufficient time to review the reports of the witnesses. As soon as the C's requested a hearing
pursuant to § 48.64(4), Stats.,
they were entitled to the witness reports.
However, they did not demand copies of the reports until the day of the
hearing. Accordingly, the timing of
their receipt of these reports was in part due to their counsel's
inaction. The trial court cannot be
faulted for this. Moreover, it is clear
from the transcripts that the examination of the witnesses was complete and
thorough. Therefore, the fact that the
C's did not receive the reports until the day of the hearing did not affect
their counsel's ability to adequately represent their interests in this case.
Further, time was of the
essence both because of concerns that the current dispositional order would
expire on June 2, 1995, and because of the emotional effect the custody battle
was having on the girls. Given these
factors in light of the facts referenced above, it was appropriate for the
trial court to refuse to grant a continuance.
4. Evidentiary
rulings re: witnesses.
The C's also claim that
the trial court erred in striking many of their important witnesses. The trial court excluded certain witnesses
because of the remoteness of their involvement and/or because of the cumulative
nature of the testimony. Exclusion of
evidence is addressed to the discretion of the trial court. Prill v. Hampton, 154 Wis.2d
667, 678, 453 N.W.2d 909, 913 (Ct. App. 1990).
Evidence is irrelevant because of remoteness if the elapsed time is so
great as to negate all rational or logical connection between the fact sought
to be proved and the evidence offered to prove the fact. State v. Oberlander, 149
Wis.2d 132, 143, 438 N.W.2d 580, 584 (1989).
Witnesses Julie
Vogelsang and Pat Wendt were excluded as witnesses because the home studies
that each conducted in April 1994 were reviewed by the court and made a part of
the record. Accordingly, the trial
court determined that additional testimony from each at the hearing would be
cumulative to their reports. It also
found that the testimony would be too remote because it was over a year
old. This conclusion was reasonable
based on the facts presented and, therefore, was not an erroneous exercise of
discretion.
Witness Marjorie Wendt,
who was the proposed adversary counsel for the children, was excluded as a
witness based on privilege, cumulative nature of her testimony and the fact
that her proposed representation was terminated by court order. The C's do not present any evidence, nor
does this court see any evidence in the record to conclude that excluding
Wendt's testimony constituted an erroneous exercise of discretion. Even if it was improper to exclude Wendt's
testimony based on attorney-client privilege, the alternative reason relied on
by the trial court is sufficient.
Witness Michael Bohren,
guardian ad litem in Waukesha County, was excluded as a witness for the same
reasons as Marjorie Wendt. This court's
conclusion on this exclusion is the same.
Finally, portions of
Volkmar's affidavit were struck by the trial court. The trial court struck certain portions of Volkmar's affidavit
because the affidavit stated certain opinions without specifying the basis for those
opinions or the facts Volkmar relied on in reaching those particular
opinions. It was reasonable for the
trial court to strike those opinions.
In sum, this court
concludes that the C's were in fact afforded a fair hearing.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] MCDHS is short for the Milwaukee County Department of Human Services. MCDHS is the legal guardian of both girls because they were determined to be children in need of protection or services under § 48.13(10), Stats.
[3] The C's also claim that the transfer should have been gradual rather than abrupt. Because the transfer is an “accomplished fact,” and because this court has determined it is in the children's best interests to be placed with their aunt, there is no reason for this court to address this alleged error. See In Matter of Z, 81 Wis.2d 194, 260 N.W.2d 246 (1977).
[4] Within their challenge to this finding, the C's also contend that the trial court should have struck Lenyard's testimony because she was not an expert and was not asked to make a recommendation on placement. As the finder of fact, the trial court is the sole arbiter of credibility and determines the amount of weight to assign to Lenyard's testimony. The trial court relied on Lenyard's opinion because she was the current therapist involved in this case and from that perspective Lenyard was qualified to offer her opinion.