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TPR – Grounds, Sufficiency of Evidence; TPR – Termination Phase, Exercise of Discretion

State v. Marquis O., 2011AP2642, District 1, 2/14/12

court of appeals decision (1-judge, not for publication); for Marquis O.: Carl W. Chessir; case activity

Grounds for terminating parental rights upheld, against argument that Bureau of Child Welfare didn’t make reasonable effort to provide services for Marquis O. to meet conditions for child’s return to him.

¶5        The termination of Marquis O.’s parental rights to Mariyana was based on the child’s having, as the jury question answered in the affirmative by the trial court phrases it, “been adjudged to be in need of protection or services and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law.”[2]  When the ground for termination of parental rights is that the child has been in continuing need for protection or services, the State must try to help the person have a safe and nurturing home for the child so the child can return to the parent.  Thus, the jury is asked whether: “the agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide the services ordered by the court.”  Wis. Stat. § 48.415(2)(a)2.b.  The term “‘reasonable effort’ means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child or of the expectant mother or child, the level of cooperation of the parent or expectant mother and other relevant circumstances of the case.”  Wis. Stat. § 48.415(2)(a)2.a.

¶6        Even in the heightened scrutiny we appropriately give to jury decisions that permit the termination of a person’s parental rights to his or her children, “[a] jury’s verdict must be sustained if there is any credible evidence, when viewed in a light most favorable to the verdict, to support it.”  Sheboygan County Department of Health & Human Services v. Tanya M.B., 2010 WI 55, ¶49, 325 Wis. 2d 524, 550, 785 N.W.2d 369, 381.  That test has been easily met here, as evidenced by the following testimony, which the jury could have accepted: …

[Court recites fact-specific details at some length.]

Termination upheld, against argument the trial court erroneously concluded that child was likely to be adopted.

¶7        Once the grounds to terminate a person’s parental rights have been found in the first phase of the proceeding, the trial court must decide whether termination is appropriate.  Wis. Stat. § 48.427(1).  This is a discretionary decision.  Brandon S.S. v. Laura S., 179 Wis. 2d 114, 150, 507 N.W.2d 94, 107 (1993); Darryl T.-H. v. Margaret H., 2000 WI 42, ¶27, 234 Wis. 2d 606, 620, 610 N.W.2d 475, 481.  A decision to terminate turns on whether that would be in the child’s best interests.  See Wis. Stat. § 48.01(1) (“[T]he best interests of the child or unborn child shall always be of paramount consideration.”); § 48.426(2) (“The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter.”).  Thus, the focus at the disposition phase is on the child and not on the parent.  Richard D. v. Rebecca G., 228 Wis. 2d 658, 672–673, 599 N.W.2d 90, 97 (Ct. App. 1999).

¶11      In its written decision, the circuit court addressed both Mariyana and her two siblings, whose matters are not before us. Commenting on factor (a) in connection with Mariyana, the circuit court wrote, as we have already seen: “Given the level of commitment that was evidenced by Ms. D[.] during her testimony and the improved behavior of Mari, I also believe that there is a strong likelihood of adoption for Mari.”  The evidence overwhelmingly supports this finding.  Further, with respect to the stability factor, factor (f), the circuit court wrote that “the safety of these children can only be reasonably assured through adoption.  They have found a haven from the dangerous chaos they experienced in their parents’ care in the homes of their substitute caregivers.  There is no other viable answer for them.”  Although it is true, as Marquis O. points out in his brief, that Mariyana has had several placements since she was removed from the custody of her birth parents, adoption, as the circuit court recognized, is the only firm anchor for her long-term stability.

¶12      Under no stretch of the imagination can we say that the circuit court erroneously exercised its discretion in terminating Marquis O.’s parental rights to Mariyana.  Accordingly, we affirm.

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