Shortly after birth, V.J.T. was placed with a foster mom, a cousin of V.J.T.’s biological mother. Meanwhile, K.M.G., (the biological father) and T.T. (a biological grandfather) remained involved with V.J.T. The grandfather even wanted to be the child’s guardian, a result a child psychologist supported. The circuit court nevertheless, terminated the father’s parental rights when V.J.T. was 2. The court of appeals affirms mostly because V.J.T. had been with a foster mother since birth.
This appeal concerned the dispositional phase of a TPR proceeding, where the circuit court considers the “best interests of the child” and other relevant factors. In this case, the father agreed that the circuit court considered the 6 factors in §48.426(3). He objected to the circuit court’s failure to consider (1) the testimony of V.G.T.’s grandfather, (2) the testimony of a child psychologist, and (3) the option of appointing the grandfather to be V.J.T.’s guardian in lieu of terminating his parental rights.
It was undisputed that the father had some relationship with V.J.T., the grandfather had a substantial relationship with V.J.T., and a child psychologist opposed severing their relationship with V.J.T.
The problem was that the foster mom and the grandfather were related and did not get along. The foster mom sought to adopt V.J.T. and said the grandfather could remain in the V.J.T.’s life only if the grandfather presented himself as V.J.T.’s uncle (which is not true).
The circuit court recognized that dismissing the petition would be harmful to V.J.T. because it would terminate V.J.T.’s relationship with the foster mom, the only caregiver V.J.T. had ever known. The circuit court also recognized that terminating V.G.T.’s relationships with the father and grandfather would be harmful. However, the latter harm would be mitigated by V.J.T.’s young age, so the foster mom wins. The court of appeals issued its standard “we will not reweigh the factors” answer and affirmed. Opinion, ¶¶19-26.
As for appointing the grandfather guardian rather than granting a TPR, the court of appeals held that K.M.G. (the dad) failed to cite legal authority saying that a circuit court must consider any specific alternative to termination. In any case, the circuit court heard the grandfather’s testimony on this subject and therefore implicitly rejected that option when it terminated the dad’s parental rights. Opinion, ¶¶28-29.
Here we go again. How does the court of appeals review an exercise of discretion that the circuit court neglects to put on the record? The answer should be: “It doesn’t. Remand!” Instead what we see is the court of appeals imagining the discretion that the circuit court may have exercised silently followed by “affirmed!”
Lastly, the court of appeals rejected the dad’s argument that the circuit court was required to explicitly consider the guardianship option under A.B. v. P.B., 151 Wis. 2d 312, 444 N.W.2d 415 (Ct. App. 1989). According to the court of appeals, A.B. involved a voluntary termination of parental rights. It does not apply to involuntary TPRs where termination would advance a proposed adoption and stability for the child. Opinion, ¶35.