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COA affirms termination of parental rights despite daughter’s unwavering wish to be with her mom

N.M. v. State, 2020AP964, case activity; and State v. J.M.W., 2020AP1057, 9/22/20, case activity, District 1 (i-judge opinions, ineligible for publication)

Anyone who loves an alcoholic parent will find this decision heart-wrenching. J.M.W. has a close relationship with her 11 year old daughter, N.M. Unfortunately, J.M.W. also struggles with alcoholism and unstable housing, so the circuit court terminated her parental rights. Both mother and daughter appealed and challenged the circuit court’s “best interests of the child” analysis. In two overlapping decisions, the court of appeals called this a “difficult” case, but nevertheless affirmed.

J.M.W. “drank on a daily basis” and in 2017 “exposed N.W. to domestic violence” (no explanation of what that means). Opinion, ¶¶1-2. J.M.W. pleaded no contest on grounds for termination of parental rights, but defended at the dispositional hearing where the court reviewed the 6 “best interests of the child” factors, which guide the determination on whether to sever the parent/child relationship.

Here’s how those factors went down. N.M.’s foster parents wanted to adopt her. Mother and daughter had been separated for 2 years and 4 months. And N.M.’s foster mother was educated in social work and had experience with kids in foster care so N.M. would have a more stable relationship with her foster mom than with J.M.W. The court of appeals thus said the 1st, 5th and 6th factors “best interest” weighed in favor of terminating J.M.W.’s parental rights. Opinion, ¶¶5, 9, 10.

N.M. was in good health, so the 2nd factor was neutral. Opinion, ¶6.

N.M. had been in J.M.W.’s care for 8 years and had a substantial relationship with her. The court of appeals said: “It was obvious to everyone in the courtroom that it would be harmful to N.M. to sever the legal relationship with J.M.W., but some of the harm could be mitigated by ongoing contact after the TPR.” Opinion, ¶7. The court of appeals also blamed J.M.W. for some of this harm because she promised N.M. she could return home once stable housing was found. Id. It held that the 3rd and 4th factors weighed against termination.

Whether the termination of parental rights is in the best interest of a child is a discretionary decision, which means these appeals are very hard to win. J.M.W. argued that the circuit court did not give sufficient weight to the 3rd factor–the harm to N.M. if the parent/child relationship were severed. She also argued that the court should not have considered: (1) the State’s claim that she had inappropriately promised N.M. should could return home after stable housing was found, (2) the State’s evidence that adults in N.M.’s life had shielded her from the extent of her mom’s alcoholism in an effort to preserve their relationship, or (3) the State’s claim that N.M. was not aware of its safety concerns. The court of appeals held that it was appropriate for the circuit court to consider these matters. Opinion, ¶¶16-17.

J.M.W. also argued that the circuit court could have appointed a guardian for N.M., which would have preserved the mother-child relationship. The court of appeals called this claim “speculative” and explained that its task is to  to search for evidence to support the circuit court findings, not for evidence to support findings the trial court could have reached but did not. Opinion, ¶20.

As noted, N.M. apparently was never apprised of the State’s concerns for her safety. This opinion does not spell them out either. So, unfortunately, the reader is left with the impression that people who (2) lack stable housing (i.e. low income people), (3) struggle with alcoholism (a lot of folks in Wisconsin), and (3) aren’t up to a foster parent’s standards are at risk for termination of their parental rights.




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