Brown County Department of Human Services v. A. K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 6, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP730 Cir. Ct. No. 2021TP41

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO P. K.,
A PERSON UNDER THE AGE OF 18:

BROWN COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.
No. 2023AP730

¶1 STARK, P.J.1 Alice2 appeals from an order terminating her parental
rights (TPR) to her daughter, Paige. Alice argues that the circuit court erroneously
exercised its discretion by finding that it was in Paige’s best interest to order the
TPR because the court did not receive any direct evidence from Paige’s proposed
adoptive resources. We reject Alice’s argument and affirm.

BACKGROUND

¶2 Paige was born in April 2018, and she is the biological child of Alice
and Stewart.3 Paige was removed from her parents’ care in May 2018, and was
ultimately adjudicated a child in need of protection or services (CHIPS). Paige
was initially placed in a receiving foster home and she was subsequently placed in
her current foster home in June 2018.

¶3 Alice was unable to comply with the court-ordered CHIPS
conditions for reunification with Paige, and on July 16, 2021, the Brown County
Department of Health and Human Services (the Department) petitioned the circuit

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading and to protect confidentiality, we refer to the appellant in this
confidential manner using a pseudonym, rather than her initials, and we do the same for any of
Alice’s family members referenced in this opinion.

Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be taken
in an order that ensures that a decision is issued within 30 days after the filing of the appellant’s
reply.” RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a delay. It is
therefore necessary for this court to sua sponte extend the deadline for a decision in this case. See
WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 694, 530
N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this decision is
issued.
3
Stewart voluntarily terminated his parental rights to Paige. Stewart’s TPR is not at
issue in this appeal.

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No. 2023AP730

court to terminate Alice’s parental rights to Paige on the ground that Paige was a
child in continuing need of protection or services pursuant to WIS. STAT.
§ 48.415(2)(a). After a trial, a jury found that there were grounds to terminate
Alice’s parental rights to Paige. The court accepted the jury’s verdict and found
Alice to be an unfit parent. The case then proceeded to a contested dispositional
hearing.

¶4 At the dispositional hearing, the Department presented one witness,
Brittany Schmidt, an employee of the Department and Paige’s case manager. As
relevant here, Schmidt testified that: (1) she contacted Lutheran Social Services
(LSS), and LSS sent her a report stating Paige was an adoptable child; (2) Paige’s
foster family was interested in adopting Paige, and they have never wavered in
their desire to do so; (3) the foster family had already begun taking steps toward
adopting Paige; (4) LSS had conducted a home study of the foster family and
identified no safety concerns in the home; (5) Paige had no health or
developmental concerns, and her medical needs were being met; (6) Paige did not
have a substantial relationship with either parent or either parent’s family
members; (7) Paige was placed with her foster family for approximately four
years; (8) Paige’s foster parents were previously approved as an adoptive resource
for children, but if they did not adopt Paige, there was a pool of adoptive families
available to adopt her; and (9) terminating Alice’s parental rights would allow
Paige to have permanency and stability in her foster home. Schmidt ended her
direct testimony by stating that she believes terminating Alice’s parental rights
was in Paige’s best interest.

¶5 Paige’s guardian ad litem (GAL) also recommended terminating
Alice’s parental rights. Paige’s foster parents were present but they were not
called to testify. Alice was present but declined to testify.

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No. 2023AP730

¶6 Relying on Schmidt’s testimony and the GAL’s recommendation,
the circuit court found that it was in Paige’s best interest to terminate Alice’s
parental rights. Specifically, the court found that Paige was an adoptable child and
that if the foster parents, who were an adoptive resource, did not adopt Paige, there
were other adoptive resources available. The court noted that Paige was healthy,
there were no concerns with her development, she was four and one-half years old,
and she had been removed from Alice’s care since before she was two months old.

¶7 The circuit court further found that Paige did not have a substantial
relationship with her parents or her parents’ family members. It noted that despite
weekly visitation with Alice, Paige’s true separation from her parents essentially
occurred at the time she was removed from their care, and it would not be harmful
to Paige to sever those relationships. The court also found that although Paige is
too young to understand a TPR or state her wishes, the type of relationship she has
with her foster parents is telling, and it is clear that Paige “wishes [her relationship
with her foster family] to continue based on the way she interacts with” them.

¶8 Finally, the circuit court found that terminating Alice’s parental
rights, along with facilitating Paige’s adoption, will allow Paige to have the
stability and permanency that Paige deserves. Absent the TPR, the court stated
that it could not find guardianship in Paige’s best interest given the length of time
that she has been out of the parental home and the lack of permanency that a
guardianship would afford. Accordingly, the court found that reasonable efforts to
achieve the goals of the permanency plan had been made, and it ordered the
termination of Alice’s parental rights. Alice now appeals.

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No. 2023AP730

DISCUSSION

¶9 On appeal, Alice argues that the circuit court erroneously exercised
its discretion by finding that terminating her parental rights was in Paige’s best
interest because the court did not receive any direct evidence from Paige’s foster
family and proposed adoptive resources. For the reasons discussed below, we
conclude that the Department presented sufficient evidence for the court to find
that the termination of Alice’s rights was in Paige’s best interest.

¶10 We will sustain the circuit court’s ultimate determination in a TPR
proceeding if the court properly exercised its discretion. State v. Margaret H.,
2000 WI 42, ¶32, 234 Wis. 2d 606, 610 N.W.2d 475. A court “properly exercises
its discretion when it examines the relevant facts, applies a proper standard of law
and, using a demonstrated rational process, reaches a conclusion that a reasonable
judge could reach.” Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d
855 (Ct. App. 1996). A court’s findings of fact will be upheld unless they are
clearly erroneous. WIS. STAT. § 805.17(2).

¶11 A contested proceeding for the termination of parental rights
involves a two-step procedure. Sheboygan Cnty. Dep’t of Health & Hum. Servs.
v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402. The first step
is a fact-finding hearing in which a jury or circuit court determines “whether any
grounds for the termination of parental rights have been proven.” Id., ¶26; WIS.
STAT. § 48.424(3). If grounds are found for termination, the court must find the
parent unfit. Julie A.B., 255 Wis. 2d 170, ¶26.

¶12 The termination proceedings then move to the second step, a
dispositional hearing, at which the circuit court must consider the best interest of

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No. 2023AP730

the child. WIS. STAT. § 48.426(2). To determine the best interest of the child, the
court must consider, but is not limited to, the following six factors:

(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.

Sec. 48.426(3).

¶13 We first note that Alice did not object to the sufficiency of the
evidence at the dispositional hearing, and she raises her argument regarding the
need for direct testimony from Paige’s adoptive resources for the first time on
appeal. Thus, her claim is arguably forfeited. See Tatera v. FMC Corp., 2010 WI
90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 (“Arguments raised for the first
time on appeal are generally deemed forfeited.”). The Department, however, does
not argue forfeiture, and we therefore choose to decide this matter on the merits.

¶14 We conclude that the circuit court’s factual findings based upon
Schmidt’s testimony are not clearly erroneous, and Alice does not argue
otherwise. In addition, Alice concedes that the court applied the facts to the
proper standard of law and considered all of the statutorily enumerated factors in

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No. 2023AP730

determining Paige’s best interest. See WIS. STAT. § 48.426(3). Alice nevertheless
contends that the court heard no personal, first-hand account of any potential
adoptive resource’s desire or commitment to adopt Paige. Without that evidence,
she argues that the court could not fully consider the required statutory factors by
relying solely on Schmidt’s testimony. In particular, Alice argues that the court
could not have meaningfully considered two of the statutory factors—the
likelihood of Paige’s adoption and whether the termination of Alice’s parental
rights would allow Paige to enter into a more stable and permanent family
relationship—without testimony of the proposed adoptive resources. This
argument fails for multiple reasons.

¶15 First, Alice cites to no legal authority in support of her argument.
See Wal-Mart Real Est. Bus. Tr. v. City of Merrill, 2023 WI App 14, ¶32, 406
Wis. 2d 663, 987 N.W.2d 764 (stating that arguments unsupported by legal
authority need not be considered). WISCONSIN STAT. § 48.426(3) does not require
proposed adoptive parents to be in attendance or to testify at a dispositional
hearing, nor does it require that the circuit court make any findings regarding their
fitness and suitability. The statute does not even require that a proposed adoptive
parent be identified at the time of the dispositional hearing. The applicable
statutory factors simply ask the court to consider the child’s likelihood of adoption
and whether the child will enter into a more stable and permanent family
relationship as a result of an adoption.

¶16 Second, Schmidt’s testimony provided a sufficient basis for the
circuit court to reach a decision on all of the statutory factors including those
factors that Alice contested. Through Schmidt’s testimony, the Department
entered into evidence a report from LSS stating that the foster parents “have
expressed an interest in applying to adopt” and that if they do not do so, there is a

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No. 2023AP730

“pool of approved adoptive families who could match with this child.” Further,
the report stated that the foster family had already begun taking steps toward
adopting Paige, and that LSS had conducted a home study of the foster family and
identified no safety concerns in the home. Schmidt testified that the foster parents
have never wavered in their desire to adopt Paige. Schmidt’s testimony—that
Paige had been in foster care for over four years, that she would not be harmed if
her relationship with Alice was severed, that she had a good relationship with her
foster parents and was doing well, and that the foster family or another available
resource would likely adopt Paige—was sufficient to support the court’s finding
that termination of Alice’s parental rights would provide Paige with deserved
permanency.

¶17 Alice argues that the circuit court should not have relied on
Schmidt’s testimony because it was based on inadmissible hearsay. Alice
concedes that hearsay is admissible at a dispositional hearing, but she argues that
the court could not rely upon Schmidt’s hearsay testimony because it lacked the
“demonstrable circumstantial guarantees of trustworthiness” required under WIS.
STAT. § 48.299(4)(b).

¶18 We reject this argument as undeveloped. Alice fails to explain why
the circuit court could not rely on Schmidt’s testimony, and she cites to nothing in
the record showing that Schmidt’s testimony was inconsistent with any other
evidence; rather, Schmidt’s testimony was consistent with the LSS report. In
reply, Alice argues that the LSS report was also hearsay, and had no guarantees of
trustworthiness because it was a form document. However, whether a form or not,
the report coupled with Schmidt’s uncontroverted testimony consistently showed
that Paige’s foster parents were interested and willing to adopt Paige, and Alice
provides no evidence to the contrary.

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No. 2023AP730

¶19 Moreover, Alice ignores Schmidt’s testimony regarding her
background and experience as the long-term case manager in Paige’s CHIPS case.
The circuit court clearly found Schmidt’s testimony to be credible, as the court
relied upon it in reaching its decision, and the court was the sole arbiter of
Schmidt’s credibility. See WIS. STAT. § 805.17(2). In short, we conclude Alice’s
objection in this regard is without merit.

¶20 Alice further argues that her due process rights were violated by the
lack of testimony from Paige’s adoptive resources because she did not have the
“opportunity to cross-examine the proposed adoptive resource about that person’s
intentions, background, lifestyle, economic status or any other matter.” This
argument also fails. Based upon Schmidt’s testimony, the Department made a
prima facie case in support of its claim that the termination of Alice’s parental
rights was in Paige’s best interest. As the Department correctly notes, Alice had
ample opportunity to, and did, cross-examine Schmidt. She then had the
opportunity to call the foster parents as witnesses, as well as the opportunity to call
an expert witness to testify in opposition to the proposed disposition, but chose not
to. Alice’s claim that she was denied due process due to a lack of testimony from
Paige’s adoptive resources is without merit.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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