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COURT OF APPEALS DECISION DATED AND RELEASED March 6, 1996 |
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. |
Nos. 95-2793
95-2794
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
No. 95-2793
In the Interest of
Casey James B.-S.,
A Child Under the
Age of 18 Years:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
LINDA B.-S.,
Respondent-Appellant.
______________________________________________________________________________
No. 95-2794
In the Interest of
Jamie Lyn B.-S.,
A Child Under the
Age of 18 Years:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
LINDA B.-S.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Racine County:
GERALD P. PTACEK, Judge. Affirmed.
BROWN, J. Linda
B.-S. appeals from orders terminating her parental rights to Jamie Lyn and
Casey James B.-S. She contends
that the trial court erred by concluding that she abandoned her children
because it failed to consider certain contacts she had with them. She also challenges the trial court's
alternative finding that Jamie and Casey are in continuing need of protection
or services. She complains that the
State did not prove that Racine County Human Services (RCHS) was diligent in
its efforts to assist her to meet certain court-ordered conditions. She also challenges the trial court's
finding of a substantial likelihood that she would not meet these court-ordered
conditions within the twelve months following her TPR hearing. However, because the trial court's findings
are not clearly erroneous, we affirm the orders terminating Linda's parental
rights.
The trial court made the
following findings to support its orders.
The first contact between Linda, her children and RCHS occurred on March
24, 1992. The children were detained
after Linda was arrested for violating a temporary restraining order and was
involuntarily committed when she began to chant, sing in tongues and
hallucinate that God and the Devil talked to her. CHIPS petitions were dismissed when Linda agreed to voluntary
psychological treatment and to place her children in foster care. In April
1992, however, Linda left treatment and took the children to Illinois. She stayed with the children in a homeless
shelter before moving in with her husband.[1]
Linda returned to Racine
the following July and began moving from shelter to shelter. In September 1992, RCHS again took care of
the children when Linda was evicted from a shelter because of her bizarre and
belligerent behavior.
In April 1993, the trial
court found Jamie and Casey in need of protection or services and entered
dispositional orders placing the children in foster care. Linda was present at the dispositional
hearing and was warned regarding the termination of her parental rights. In April 1994, the trial court extended the
order for another year. Linda did not
appear at the second proceeding despite repeated efforts to contact her.
After the first
disposition, RCHS began providing direct services through a caseworker whose
role was to supervise Linda's visits with her children, instruct her on
parenting techniques and provide any other needed services, such as
transportation. In June 1993, RCHS made
an appointment for Linda with the Kaiser Parent Aide Program, but she refused
to participate. Linda maintained that
she was a good parent who did not need any services.
Linda likewise refused
referrals to Lutheran Social Services and Children’s Services Society that were
to provide counseling to the children.
In addition, Linda refused other services offered by the Wisconsin
Probation and Parole Department. Based
on her reactions to attempted intervention, the trial court concluded that
Linda “has no insight into her mental problems and how they affect the
children.” Since Linda also refused
medical treatment for her mental disability, the trial court reasoned that all
services would prove “ineffective.”
Because of her mental
health problems, the trial court concluded that it was unlikely that Linda
would meet the conditions specified in the CHIPS order necessary for the return
of her children. It also concluded that
any solution to her mental health problems would require forced
medication. But since such treatment
would require her institutionalization,
it would preclude the placement of the children with her. Furthermore, the trial court found that
Linda has not adequately cared for her children for at least three years and
has refused any outside assistance.
The trial court thus
made two ultimate findings. First, it
concluded that Linda had abandoned her children. See § 48.415(1), Stats. Second, it found that Jamie and Casey were in continuing need of
protection or services. See
§ 48.415(2). Accordingly, it terminated Linda's
parental rights.
On appeal, Linda
challenges the trial court's determination that she abandoned her
children. Specifically, she claims that
the trial court failed to consider contacts she had with her children between
April 1993 and June 1995; she also claims that the trial court did not address
her rebuttal evidence showing that she did not disassociate herself from Jamie
and Casey. We review the trial court’s
findings under the clearly erroneous standard.
State v. Raymond C., 187 Wis.2d 10, 14, 522 N.W.2d 243,
245 (Ct. App. 1994).
In her brief, Linda
explains that the record is “full of instances” when she made personal contact
or otherwise communicated with her children during the same period in which she
was found to have abandoned Casey and Jamie.
She further describes how:
Judge Ptacek failed to consider many
instances mentioned in the record wherein [Linda] attempted to contact or
communicate or actually did contact and communicate with her children. The State did not present clear and
convincing evidence at trial that [Linda] failed, for any six month period, to
visit or communicate with her children.
Nonetheless,
we have reviewed the record against the trial court's findings and are
satisfied that its analysis accounts for all the “instances” cited by Linda.
The above passage
correctly outlines how the State had to show that Linda did not have contact
with her children for six months. See
§ 48.415(1)(a)2, Stats. The trial court, however, measured the six
months from July 1993 to the following January, not the fourteen months between
April 1993 and June 1995 which Linda relies on in her brief. Moreover, out of the nine “instances” Linda
cites, we find only one in this six-month period which is not explicitly
accounted for in the trial court's findings.
Here, Linda explains
that she sent Casey a card for his birthday which falls on January 17. Her factual basis is the testimony of her
RCHS caseworker. The caseworker stated
that she forwarded birthday cards and Christmas cards to the children for the
1994 holiday season. Furthermore, the
caseworker testified that such contacts are meaningful. Nonetheless, the most that can be inferred
from this evidence is that Linda sent Casey a card for his birthday in
1995. This is because she testified
that she sent the Christmas card at the same time and along with the birthday
cards. The birthday cards were sent in
1995. Linda has not pointed to any
other fact which would support reversing the trial court's finding that no
contact occurred between July 1993 and January 1994.
Despite her failure to
maintain regular physical contact with her children over these six months,
Linda next complains that the record is “replete with proof that [she] never
disassociated herself from her children.”
She maintains that the trial court failed to properly consider this
rebuttal evidence. See
§ 48.415(1)(c), Stats.
The record reveals that,
through her testimony, Linda convinced the trial court that she wanted to “be a
mother to her children.” Indeed, the
record contains descriptions of Linda's letters to RCHS where she described her
desire to “get her babies back.” But
parental affirmations about a desire to be with a child, standing alone, are
not sufficient evidence to rebut a finding that the child has been
abandoned. There must also be objective
evidence revealing how the parent tried to maintain a relationship with his or
her child. See, e.g., Rhonda
R.D. v. Franklin R.D., 191 Wis.2d 680, 712, 530 N.W.2d 34, 46-47 (Ct.
App. 1995) (explaining that “[t]he parent could have sent presents”). As discussed above, Linda did not provide
the trial court with any objective evidence that she made some effort to
contact her children during the six months between July 1993 and January 1994. We thus uphold the trial court's finding
that Linda abandoned her children under § 48.415(1), Stats., and affirm the trial court's orders terminating her
parental rights to Casey and Jamie.
The trial court
alternatively found that Linda's parental rights should be terminated because
Casey and Jamie were in continuing need of protection or services. See § 48.415(2), Stats.
We will address Linda's challenges to these findings as well. The trial court's findings are properly
addressed under the clearly erroneous standard. See Raymond C., 187 Wis.2d at 14, 522 N.W.2d at
245.
Linda first challenges
the trial court's conclusion that RCHS made a diligent effort to provide the
services set out in the original dispositional order. She argues that RCHS's primary caseworker reached a personal
conclusion that she would never become a successful parent and thus frustrated
her efforts to fulfill the goals outlined by the order.
The caseworker did
testify that her agency's efforts were frustrated by Linda's mental health
problems and that she believed that there was little else the agency could do
for her. However, her opinion about
Linda's likelihood of success does not seem to have hampered RCHS's attempt to
provide services.
Indeed, Linda's failure
to fulfill the goals of the order are really linked with her refusal to
participate. For example, Linda argues
to this court that RCHS did not act “earnestly and energetically” when it tried
to help Linda learn parenting techniques.
She points to how the instructor failed to show up for her first
scheduled meeting in July 1993. But in
these same passages, Linda admits that she “[u]nfortunately ¼
missed two subsequent meetings ¼ and
was terminated from the program in August 1993.” In the face of these two missed meetings, and the other evidence
illustrating Linda's continual refusal to accept help, RCHS's single scheduling
mistake is not sufficient grounds for overturning the trial court's conclusion
that RCHS acted diligently.
Finally, Linda
challenges the trial court's finding that there was a substantial likelihood
that she would not meet the court-ordered conditions within the following
twelve months. See
§ 48.415(2)(c), Stats. Linda claims that the trial court erred when it concluded that
she will not voluntarily take the medication necessary to control her mental
health problems.
On appeal, Linda points
to how she took the step of admitting the “possibility” that she is suffering
from a mental illness. Moreover, Linda
notes that two psychologists testified that with proper treatment she could be
successfully reunited with her children.
Nonetheless, there was
ample evidence before the trial court revealing Linda's continued failure to
make any progress over the past two years.
And while these psychologists acknowledged the possibility of success in
the future, the evidence Linda points this court towards on appeal does not
convince us that her recovery was so certain to occur over those next twelve
months that we should overturn the trial court's finding.
Because Linda has failed
to present evidence revealing any error in the trial court's fact-finding, we
affirm its conclusions that Linda abandoned her children and that Casey and
Jamie are children in need of continuing protection or services pursuant to §
48.415(1) and (2), Stats. Accordingly, we affirm the trial court's
orders terminating her parental rights.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.