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In TPR, court of appeals rejects challenges to default on grounds and exercise of discretion in disposition

State v. A.M.-C., 2021AP94 & 2021AP95, 3/30/21, District 1 (one-judge decision; ineligible for publication); case activity

The state petitioned to terminate A.M.-C.’s rights to two of her children on failure-to-assume and continuing-CHIPS grounds. After being told (apparently via interpreter, as Spanish is her first language) that she had to attend all hearings, A.M.-C. moved to New York City. The circuit court rejected her request to attend by telephone, found her in default, and after prove-up, found her unfit. It later found termination of her rights to be in the children’s best interest.

On appeal A.M.-C. argues that the default on grounds was not “just” because her absence from the hearing was neither egregious nor in bad faith. See Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898. The court of appeals says the record refutes her factual claims about the cause of her failure to appear:

A.M.‑C. argues that her failure to appear in person at the trial was neither egregious or in bad faith. She asserts that she needed to move to New York because she was a victim of domestic violence and the move provided for her physical safety and economic security. Additionally, she argues she lacked financial means to return to Wisconsin. She argues the court should have granted her request to appear telephonically, which was allowable under WIS. STAT. § 807.13. She contends her telephonic appearance would not have prejudiced the State, would have only been to her own detriment, and would have been superior to having her not participate at all….

[T]he record refutes each of A.M.‑C.’s arguments why this nonappearance was not egregious and in bad faith: her nonappearance was her own choice; her financial insecurity to pay to return could have been alleviated by DMCPS; and her presence in person—not by telephone—was necessary for the trial proceedings.

Our examination of the record supports the trial court’s conclusion that A.M.‑C.’s nonappearance was her own choice. The trial court stated that this was “not a circumstance where she moved to flee an abusive relationship,” because instead she fled with her alleged abuser. It stated that A.M.‑C. presented no “enormously compelling” reason for missing the trial, such as caring for a dying relative. The trial court considered her motivation may also have included avoiding a child protective services referral for her youngest child and that her alleged abuser was avoiding being taken into custody for violating terms of Wisconsin probation. Therefore, its conclusion that A.M.‑C. made a voluntary choice to stay in New York and not attend the hearing was reasonable.

(¶¶29-31).

A.M.-C. also argues the circuit court erroneously exercised its discretion in considering the statutory factors regarding the best interests of the children. That’s always an uphill (perhaps vertical) battle, as it is here:

A.M.‑C. argues that the trial court did not appropriately consider the significant relationship between A.M.‑C. and her youngest daughter and J.A.M. and E.A.M. or the harm the children would suffer if the TPR were granted. A.M.‑C. argues that the trial court’s weighing of the statutory factors under WIS. STAT. § 48.426(3) was erroneous. A.M.‑C. contends that because the evidence at the hearing showed that the children valued the relationship with their sister, the trial court erred to entirely discount the value of this relationship and the harm caused by severing that legal relationship

Here, the record shows that the trial court reviewed the statutory factors on the record with careful consideration of the relevant facts and circumstances. A.M.‑C. asks us to determine that the trial court’s weight of the third factor—the substantial relationships between A.M.‑C. and the children—was erroneous. This misstates our function as a reviewing court. It is our task to search for evidence to support the trial court findings, “not for evidence to support findings the trial court could have reached but did not.” Noble v. Noble, 2005 WI App 227, ¶15, 287 Wis. 2d 699, 706 N.W.2d 166. The trial court listened to the testimony and evidence and observed A.M.‑C.’s credibility and demeanor. A.M.‑C. characterizes her contact with the children as regular visits that had “recently been via video conferencing.” The record disputes this claim. Although A.M.‑C. has had periods of regular visitation, there were only two video visits in the record, both short and both at the request of the children. Further, J.A.M. did not recognize A.M.‑C. in the video in the foster mother’s testimony. Rather than showing that the trial court weighed this factor erroneously, the video visit evidence supports the court’s conclusion.

(¶¶37-38).

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