M. S. v. R. F.

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.
November 19, 2024
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. 2024AP814 Cir. Ct. No. 2019TP186

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

M.S.,

PETITIONER-RESPONDENT,

V.

R.F.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.
No. 2024AP814

¶1 WHITE, C.J.1 Richard appeals the circuit court’s order2 denying his
motion for reconsideration of orders granting Michelle relief from the voluntary
termination of her parental rights and denying Richard’s motion for sole legal
custody and placement of Morgan.3 Richard argues that Michelle has no right to
continue to pursue the termination of his parental rights because Michelle lost her
standing by voluntarily terminating her parental rights prior to his previous appeal
and that WIS. STAT. § 48.46 prohibited the court from granting her relief so that
she would maintain her standing post-remand.4 For the following reasons, we
affirm the order of the circuit court.

BACKGROUND

¶2 Richard and Michelle wanted to have a child and around December
2018, Michelle became pregnant with Morgan. During Michelle’s pregnancy,
Richard’s and Michelle’s relationship deteriorated, culminating in a domestic
abuse injunction against Richard in May 2019, which prohibited Richard from
having contact with Michelle for four years. Michelle described Richard’s

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3).
3
For ease of reading, we refer to the individuals in this confidential matter using
pseudonyms. See WIS. STAT. RULE 809.19(1)(g).
4
To the extent that Richard also argues that Michelle did not have standing to participate
in M.K.S. v. R.J.F., No. 2021AP1839, unpublished slip op. (WI App Aug. 16, 2022), we note
that Richard failed to raise this issue before this court in the prior appeal, and is foreclosed from
raising it now. See Olson v. Hardware Dealers Mut. Fire Ins. Co., 45 Wis. 2d 569, 579, 173
N.W.2d 599 (1970) (explaining that questions of law that could have been raised in a prior
appeal, “whether thought of by counsel and argued or not,” are “foreclosed” by an appellate
court’s prior decision (citing Lutien v. City of Kewaunee, 151 Wis. 607, 609, 139 N.W. 312
(1913)).

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No. 2024AP814

behavior toward her as “violent” and “very emotionally abusive[.]” Michelle
subsequently contacted an adoption agency and located a couple in Alabama to
adopt Morgan after her birth.

¶3 In September 2019, Morgan was born and placed with the
prospective adoptive parents in Alabama and has remained there throughout the
court proceedings. Shortly after Morgan’s birth, Michelle filed a petition to
terminate Richard’s parental rights on the ground that he failed to assume parental
responsibility. See WIS. STAT. § 48.415(6). At the hearing on the petition
Michelle explained that she was also interested in voluntarily terminating her
parental rights, but only if Richard’s rights were also terminated.

¶4 In June 2021, the case proceeded to a jury trial to determine whether
there were grounds to terminate Richard’s parental rights.5 The jury found that
Richard failed to assume parental responsibility. The circuit court accepted the
jury’s verdict and found Richard unfit pursuant to WIS. STAT. § 48.424(4). The
case moved to the dispositional phase where the court ultimately found that the
termination of Richard’s parental rights was in Morgan’s best interests. In order to
proceed with Morgan’s adoption, Michelle then voluntarily consented to the
termination of her parental rights.

¶5 Richard filed postdisposition motions in which he argued that he
received ineffective assistance of counsel, that WIS. STAT. § 48.415(6)(a) was

5
The Honorable Gwendolyn G. Connolly presided over the hearing on the petition. The
Honorable Marshall B. Murray presided over the jury trial, entered the orders terminating
Richard’s and Michelle’s parental rights, and denied Richard’s postdisposition motions. The
Honorable Joseph R. Wall entered the orders granting Michelle relief from the termination of her
parental rights, and denying Richard’s motion for sole legal custody and placement, and the order
denying Richard’s motion to reconsider those two orders.

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No. 2024AP814

unconstitutional as applied to him, and that he is entitled to postdisposition
discovery of adoption records. The circuit court held a Machner6 hearing and
subsequently denied Richard’s motions.

¶6 Richard appealed. In M.K.S. v. R.J.F., No. 2021AP1839,
unpublished slip op. (WI App Aug. 16, 2022), this court concluded that Richard
received ineffective assistance of counsel during the grounds phase, reversed the
circuit court’s order terminating Richard’s parental rights, and remanded the cause
for a new fact-finding hearing to determine whether grounds exist for the
termination of Richard’s parental rights, and for a new dispositional hearing if
necessary.

¶7 After remand, Richard filed a motion to dismiss which the circuit
court denied as untimely under WIS. STAT. § 48.297(2). Richard also filed a
motion for sole legal custody and placement in which he argued that Michelle no
longer had standing to continue pursuing the termination of Richard’s parental
rights because she voluntarily terminated her parental rights. In response,
Michelle moved the court to restore her parental rights pursuant to WIS. STAT.
§ 806.07(1)(f) and (g). The circuit court informed the parties that it was
considering granting Michelle relief under § 806.07(1)(h) on its own motion
instead, and allowed all parties to file a response if they wished. The circuit court
then denied both Richard’s and Michelle’s motions and granted Michelle relief
pursuant to § 806.07(1)(h).

6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP814

¶8 The circuit court explained that Michelle’s motion for relief pursuant
to WIS. STAT. § 806.07(1)(f) was untimely under WIS. STAT. § 48.46(2) and that
§ 48.46(2) bars Michelle from seeking relief under § 806.07(1)(g). The court then,
on its own motion, granted Michelle relief from the termination of her parental
rights under § 806.07(1)(h). In doing so the court adopted the analysis of
Morgan’s guardian ad litem (GAL) that extraordinary circumstances justified
relief due to the unique factual situation that triggered the question of whether
Michelle maintained standing post-remand. The court discussed how the
circumstances in this case are novel, and that the underlying questions of whether
Richard failed to assume parental responsibility and whether it is in Morgan’s best
interests to terminate Richard’s parental rights should be heard on the merits.
Consequently the court found that Michelle had standing and denied Richard’s
motion for sole legal custody and placement.

¶9 Richard then moved the circuit court to reconsider its orders arguing
that the court lacked competency because the orders were contrary to the
procedure outlined in WIS. STAT. ch. 48, that the circuit court erroneously
exercised its discretion by granting equitable relief when Michelle had adequate
legal remedies, and that extraordinary circumstances were not present to warrant
relief. The circuit court invited Morgan’s GAL and Michelle and to each file four-
page responses to Richard’s motion. Richard then filed a reply. The circuit court
declined to consider Richard’s reply because it had not allowed for Richard to
submit one, and then denied Richard’s motion.

¶10 Richard petitioned this court for leave to appeal the circuit court’s
order which this court granted.

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No. 2024AP814

DISCUSSION

¶11 Richard argues that the circuit court erred by granting Michelle relief
from the order terminating her parental rights under WIS. STAT. § 806.07(1)(h)
because the relief available under WIS. STAT. § 48.46(2) is restricted to only those
reasons listed under § 806.07(1)(a)-(d), and (f). Michelle and Morgan’s GAL
argue that § 48.46(2) only limits the motions for relief brought by a parent and
does not affect what relief the court may grant on its own motion in extraordinary
circumstances. We agree with Michelle and the GAL.

¶12 We review questions of statutory construction de novo. State v.
Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). “[S]tatutory
interpretation ‘begins with the language of the statute.’” State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citation omitted). “Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined words or phrases are
given their technical or special definitional meaning.” Id. “Where statutory
language is unambiguous, there is no need to consult extrinsic sources of
interpretation, such as legislative history.” Id., ¶46.

¶13 “Parental rights termination proceedings under Chapter 48 are civil
proceedings[.]” Steven V. v. Kelley H., 2004 WI 47, ¶32, 271 Wis. 2d 1, 678
N.W.2d 856. In civil proceedings, the circuit court may relieve a party from a
judgment or order for the reasons listed in WIS. STAT. § 806.07(1). “The relief
that may be accorded under [] § 806.07 need not be sought by one of the parties; a
court may act on its own motion pursuant to § 806.07, as long as the court
provides the parties notice of its action and an opportunity to be heard.” Larry v.
Harris, 2008 WI 81, ¶20, 311 Wis. 2d 326, 752 N.W.2d 279.

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No. 2024AP814

¶14 WISCONSIN STAT. § 48.46(2) provides:

A parent who has consented to the termination of his or her
parental rights under [WIS. STAT. § 48.41] or who did not
contest the petition initiating the proceeding in which his or
her parental rights were terminated may move the court for
relief from the judgment on any of the grounds specified in
§ 806.07(1)(a), (b), (c), (d) or (f). Any such motion shall be
filed within [thirty] days after the entry of the judgment or
order terminating parental rights[.]

(Emphasis added.) The plain language of § 48.46(2) only qualifies the type of
relief that may be sought by “a parent,” this statute does not restrict the court from
acting on its own motion. See Larry, 311 Wis. 2d 326, ¶24. Similarly, the thirty-
day deadline only applies to those motions brought by a parent because § 48.46(2)
specifies that this deadline applies to “any such motion,” referring back to the
motions that may be brought by a parent, instead of applying the deadline to any
motion for relief.7 Therefore, we conclude that § 48.46(2) does not bar the circuit
court from granting relief on its own motion pursuant to WIS. STAT.
§ 806.07(1)(h).8

¶15 Richard also argues that the circuit court erred when it applied WIS.
STAT. § 806.07(1)(h) because extraordinary circumstances are not present to
justify granting relief over preserving the finality of the decision.

7
Richard does not dispute that the circuit court’s motion was brought within “a
reasonable time” pursuant to WIS. STAT. § 806.07(2).
8
Due to our conclusion that WIS. STAT. § 48.46 does not bar the circuit court from
granting relief on its own motion, we need not consider Richard’s arguments that the court cannot
grant equitable relief in the face of a statutory bar or when there are other remedies at law. See
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be
decided on the narrowest possible ground[.]”).

7
No. 2024AP814

¶16 Whether to grant relief under WIS. STAT. § 806.07(1)(h) is a decision
within the discretion of the circuit court. Sukala v. Heritage Mut. Ins. Co., 2005
WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. “We will not reverse a discretionary
determination by the [circuit] court if the record shows that discretion was in fact
exercised and we can perceive a reasonable basis for the court’s decision.” Id.
(citation omitted). “[W]e generally look for reasons to sustain discretionary
determinations.” Id. (citations and internal quotation marks omitted).

¶17 “In exercising its discretion by determining whether it should grant
relief from the judgment or stipulation, the circuit court should consider whether
unique or extraordinary facts exist that are relevant to the competing interests of
finality of judgments and relief from unjust judgments.” Id., ¶11. “Unique and
extraordinary circumstances are those where ‘the sanctity of the final judgment is
outweighed by the incessant command of the court’s conscience that justice be
done in light of all the facts.’” Id., ¶12 (emphasis in original; citations omitted).
WISCONSIN STAT. § 806.07(1)(h) “is to be liberally construed to provide relief
from a judgment whenever appropriate to accomplish justice.” Miller v. Hanover
Ins. Co., 2010 WI 75, ¶33, 326 Wis. 2d 640, 785 N.W.2d 493 (citation omitted).

¶18 The court’s consideration includes, but is not limited to:

whether the judgment was the result of the conscientious,
deliberate and well-informed choice of the claimant;
whether the claimant received the effective assistance of
counsel; whether relief is sought from a judgment in which
there has been no judicial consideration of the merits and
the interest of deciding the particular case on the merits
outweighs the finality of judgments; whether there is a
meritorious defense to the claim; and whether there are
intervening circumstances making it inequitable to grant
relief.

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No. 2024AP814

State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 552-53, 363 N.W.2d 419 (1985).
The court should also consider the child’s best interests when determining whether
to grant relief. See Johnson v. Johnson, 157 Wis. 2d 490, 500, 460 N.W.2d 166
(Ct. App. 1990).9

¶19 This case involves unique procedural circumstances which impact
Michelle’s standing post-remand. Michelle petitioned for the termination of
Richard’s parental rights. At the hearing on the petition, the circuit court accepted
that Michelle was only interested in voluntarily terminating her rights if Richard’s
rights were also terminated. Ultimately Michelle voluntarily terminated her rights
to facilitate Morgan’s adoption after Richard’s rights were terminated, but prior to
Richard’s appeal. On appeal, this court, concluded that Richard had received
ineffective assistance of counsel, so we reversed the circuit court’s order
terminating Richard’s rights and remanded the cause so that Richard could have a
new hearing with the benefit of effective assistance of counsel. M.K.S.,
No. 2021AP1839, ¶42.

9
Richard suggests that Morgan’s best interests should not be considered when
determining whether Michelle should have been granted relief under WIS. STAT. § 806.07(1)(h).
He argues that the holding the circuit court relied on in Johnson v. Johnson, 157 Wis. 2d 490,
500, 460 N.W.2d 166 (Ct. App. 1990)—that the best interests of the child should be considered
and is relevant as an intervening factor—is not applicable here because Johnson involved a
different factual situation. We emphasize that the factors for relief set forth in State ex rel.
M.L.B. v. D.G.H., 122 Wis. 2d 536, 552-53, 363 N.W.2d 419 (1985) are a non-exclusive list, and
that the court’s objective when determining whether to grant relief is to “achieve a balance
between the competing values of finality and fairness in the resolution of a dispute.” Sukala v.
Heritage Mut. Ins. Co., 2005 WI 83, ¶¶11-12, 282 Wis. 2d 46, 698 N.W.2d 610 (citation
omitted). The best interests of the child cannot be disregarded when determining whether it is
fair to grant relief from an order terminating a parent’s rights and should be considered in some
form as appropriate to the circumstances of the case because the child’s interests will be impacted
by the decision. See WIS. STAT. § 48.01(1)

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No. 2024AP814

¶20 As a result of the pre-appeal timing of Michelle’s voluntary
termination, Michelle’s standing was in question post-remand. The circuit court
analyzed the factors and found it “fair and just” to relieve Michelle from her
termination of parental rights judgment so that the question of whether Richard
failed to assume parental responsibility could be litigated on the merits as this
court contemplated in the prior appeal. The circuit court also explained that
Morgan was born in 2019 and the only parents she has ever known are her
prospective adoptive parents. The circuit court concluded that it would be in
Morgan’s best interests to resolve whether there are grounds to terminate
Richard’s parental rights on the merits.

¶21 This is not a situation where the finality of the judgment weighs
strongly in favor of denying relief. Rather, as the circuit court found, it would be
unfair for Michelle’s termination of parental rights judgment to prevent Michelle
from continuing to pursue this case post-remand. The consequence of letting
Michelle’s voluntary termination stand would run completely contrary to her
purpose and her knowledge at the time she voluntarily terminated her rights.
Michelle believed adoption was in Morgan’s best interests and, at the time,
Richard had been found unfit and his parental rights were terminated. Had
Richard’s parental rights not been terminated, Michelle would not have voluntarily
terminated her rights. It is clear that it would be in the interests of justice to allow
this matter to be decided on the merits in this case instead of allowing Michelle’s
voluntary termination to preclude an ultimate decision on whether it is in
Morgan’s best interests for Richard’s parental rights to be terminated.

¶22 Based on our review of the record, we conclude that the circuit court
did not erroneously exercise its discretion by granting Michelle relief because its

10
No. 2024AP814

decision contemplated a process of reasoning based on the facts in the record and
the correct legal standard. See Sukala, 282 Wis. 2d 46, ¶8.10

¶23 Richard also argues that the circuit court committed a structural error
because it showed subjective bias by only ignoring statutory law in favor of
Michelle and by declining to consider Richard’s reply brief on his motion for
reconsideration. A structural error “is something that either affects the entire
proceeding, or affects it in an unquantifiable way” that is “so intrinsically harmful
as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to
[its] effect on the outcome.” State v. C.L.K., 2019 WI 14, ¶15, 385 Wis. 2d 418,
922 N.W.2d 807 (citation omitted).

¶24 First, Richard’s argument is premised on a conclusion that WIS.
STAT. § 48.46(2) prohibits the circuit court from granting relief on its own motion
pursuant to WIS. STAT. § 806.07(1)(h). However, as previously discussed,
§ 48.46(2) does not restrict the circuit court’s ability to grant relief on its own
motion; thus, the court did not show bias when it granted Michelle relief by
selectively refusing to apply the statutes as Richard contends.

¶25 Second, Richard fails to offer more than speculation for why the
circuit court’s refusal to consider his reply brief on his motion for reconsideration
is evidence of subjective bias. As Richard concedes, under Milwaukee County
Circuit Court Rule 3.11(C) “[n]o reply briefs shall be considered without the
permission of the court” on non-dispositive motions. The fact that the circuit court

10
Because we conclude that the circuit court did not err by granting Michelle relief from
the termination of her parental rights, we need not decide whether Michelle would have
maintained standing in spite of the court’s order. See Blalock, 150 Wis. 2d at 703 (“[C]ases
should be decided on the narrowest possible ground[.]”).

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No. 2024AP814

refused to consider the reply that Richard filed without seeking or receiving prior
permission from the circuit court is not by itself evidence of bias.

¶26 Richard points to the fact that this case had already generated an
“extensive amount of briefs” as a reason for why refusing to consider his reply is
evidence of bias. However, Richard fails to explain why this particular motion
needed more briefing to the degree that the court committed a structural error by
refusing to consider his reply brief. The court was well within its discretion to
keep the briefing on Richard’s motion for reconsideration limited and it notably
did so for all parties by lowering the page limit for responses to the motion from
the ten pages allowed under the local rules to four pages, as well as not allowing
for a reply. Therefore, we are satisfied that the circuit court did not commit a
structural error by engaging in subjective bias.

CONCLUSION

¶27 We conclude that WIS. STAT. § 48.46 does not bar the circuit court
from granting relief on its own motion pursuant to WIS. STAT. § 806.07(1)(h), and
that the circuit court did not erroneously exercise its discretion when it granted
Michelle such relief. Furthermore, we conclude that the circuit court did not
commit structural error. Accordingly, we affirm the order of the circuit court.

By the Court.—Order affirmed.

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

12