Grant Co. DSS v. Elizabeth M. R., 2012AP1059, District 4, 8/9/12
By failing to consider whether the child had a substantial relationship with the parent, § 48.426(3), the trial court erroneously exercised discretion in concluding that termination of parental rights was in the child’s bests interests.
¶16 In Margaret H., the supreme court determined that the circuit court in that case failed to give proper consideration to all of theWis. Stat. § 48.426(3) factors, which the court concluded constituted an erroneous exercise of the court’s discretion because the court failed to apply the appropriate legal standard. Margaret H., 234 Wis. 2d 606, ¶36. The State asked the supreme court to decide as a matter of law the issue of termination, rather than remand the matter to the circuit court to evaluate the § 48.426(3) factors. Id. The court declined the State’s request. The court observed that when faced with inadequate findings, an appellate court may:
1) look to an available memorandum for findings and conclusions; 2) review the record anew and affirm if a preponderance of evidence clearly supports the judgment; 3) reverse if the judgment is not so supported; or 4) remand for further findings and conclusions.
Id., ¶37. The court stated, however, that it has “expressed a preference for remanding to the circuit court when confronted with inadequate findings, particularly in family law or domestic relations actions.” Id., ¶38. The court observed that “[a]n examination of the record is seldom adequate to render factual determinations that lie squarely within the province of the circuit court.” Id. Whether Ellie has a substantial relationship with Elizabeth, and whether the severance of their relationship would be harmful to Ellie requires an examination of the record and factual findings. Accordingly, I decline the County’s request and remand the case. On remand, the circuit court must set forth on the record its evaluation of all the applicable factors enumerated under Wis. Stat. § 48.426(3), including subsection (c), while focusing on Ellie’s best interest.