Sheboygan County DHHS v. Julie AB

• Decision Date: 10 July 2002
• Docket Number: No. 01-1692.,01-1692.
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS TO PRESTIN T.B., a Person Under the Age of 18: SHEBOYGAN COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Petitioner-Appellant-Petitioner, v. JULIE A.B., Respondent-Respondent.
• Court: Wisconsin Supreme Court

255 Wis.2d 170

2002 WI 95

648 N.W.2d 402

IN RE the TERMINATION OF PARENTAL RIGHTS TO PRESTIN T.B., a Person Under the Age of 18:

SHEBOYGAN COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Petitioner-Appellant-Petitioner, v. JULIE A.B., Respondent-Respondent.

No. 01-1692.

Supreme Court of Wisconsin.

Oral argument April 9, 2002.

Decided July 10, 2002.

For the petitioner-appellant-petitioner there was a brief and oral argument by Mary T. Wagner, assistant district attorney, with whom on the brief was Robert J. Wells, Jr., district attorney.

For the respondent-respondent there was a brief by Ronald J. Sonderhouse and Kay & Kay Law Firm, Brookfield, and oral argument by Ronald J. Sonderhouse.

¶ 1. DAVID T. PROSSER, J.

This is a review of an unpublished single-judge decision of the court of appeals which affirmed an order of the Circuit Court for Sheboygan County, James J. Bolgert, Judge.¹ The issue presented in this appeal is: What standards must the circuit court apply in determining the appropriate disposition of a petition for termination of parental rights, after the court or a jury has found that statutory grounds for termination exist?

¶ 2. In this case, a jury found that a child placed in foster care because of parental neglect had a continuing need of protection or services. This finding was made at a fact-finding hearing under Wis. Stat. § 48.424 (1999-2000).² A "continuing need of protection or services" is one of the 11 grounds for termination of parental rights listed in § 48.415. The circuit court then found the parent unfit, pursuant to § 48.424(4), after concluding that the evidence supported the verdict. However, at the dispositional hearing, the court determined that the conduct of the parent was not sufficiently egregious to warrant termination of parental rights and that termination was not essential to the child's safety or welfare. It therefore dismissed the termination petition without ever considering the best interests of the child.

¶ 3. On appeal, the court of appeals affirmed, concluding that the standards applied by the circuit court were correct, based on language in B.L.J. v. Polk County Department of Social Services, 163 Wis. 2d 90, 103, 470 N.W.2d 914 (1991), and State v. Kelly S., 2001 WI App 193, 247 Wis. 2d 144, 634 N.W.2d 120, a case decided by the court of appeals earlier in the year. Sheboygan County DHHS v. Julie A.B., No. 01-1692, unpublished slip op. at ¶¶ 1, 11-13 (Wis. Ct. App. Sept. 5, 2001).

¶ 4. We conclude that the standards applied by the circuit court and court of appeals were not correct because a portion of our B.L.J. opinion was not correct. The statutes governing petitions for termination of parental rights require the court, in the exercise of its discretion, to consider the best interests of the child as the prevailing factor in a disposition under Wis. Stat. § 48.427. After a jury or the court has found one of the grounds for termination listed in the statute and the court has found the parent unfit, the focus shifts to the child's best interests. At the dispositional hearing, the court must consider any agency report submitted and the six factors enumerated in § 48.426(3) in determining the best interests of the child. The court may also consider other factors, including factors favorable to the parent; but all factors relied upon must be calibrated to the prevailing standard: the best interests of the child. The best interests of the child is the polestar for the court in a dispositional hearing, and a failure to apply that standard is an error of law.

¶ 5. Because the circuit court understandably applied incorrect legal standards, it erroneously exercised its discretion. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court. Because the disposition standards set forth in B.L.J. and Kelly S. are inconsistent with this opinion, we modify B.L.J. and overrule Kelly S.

FACTS

¶ 6. This case involves a petition for termination of the parental rights of Julie A.B. (Julie) and James T. (James) to Prestin T.B. (Prestin), who was born April 11, 1998. The Sheboygan County Department of Health and Human Services (Department) initiated a petition for termination of parental rights (petition) on December 4, 2000, alleging that Julie and James were unfit parents and positing two grounds for termination: "abandonment" and "continuing need of protection or services."³

¶ 7. The Department had received previous referrals about Julie's parenting of Prestin. On November 12, 1998, when Prestin was seven months old, the Department received a referral alleging neglect. It was not substantiated. On October 12, 1999, when Prestin was 18 months old, the Department received a second referral. It alleged that Julie was homeless, drank alcohol on a daily basis, moved from house to house to find shelter, and would often leave Prestin with people who were "drunk, high, or on cocaine." The Department investigated but was unable to locate Julie or Prestin.

¶ 8. On January 20, 2000, the Department received a third referral, also alleging that Julie was neglecting Prestin. The third referral alleged that Julie continued to have problems with alcohol and that her lodgings were "filthy."

¶ 9. A Department social worker contacted Julie the next day at the apartment where she and Prestin were staying. The social worker found that the apartment contained no milk, virtually no edible food, no crib or child bedding, and little clothing suitable for a child. She noted old, inedible food in the refrigerator and on the stove, and that the apartment had dirty dishes, beer cans, and cigarette butts throughout, along with "dirty clothes, tools, dirt, and miscellaneous clutter which presented a safety hazard for a [21]-month-old child." The social worker observed Prestin pick up a nail and try to place it in his mouth, and also try to eat food items found on the floor. The social worker deemed the apartment "unsuitable to meet the needs of Prestin."

¶ 10. The Department's court report stated that Julie admitted to having a problem with alcohol and to drinking alcohol on "almost a daily basis." She denied having a drug problem but admitted using cocaine once in the previous six months. Julie allegedly stated that she and Prestin had lived in the apartment "off and on for several months" and that two males who were severe alcoholics and drank on a daily basis also resided there. Prestin was taken into custody that day and placed in foster care.⁴

¶ 11. After a child in need of protection or services (CHIPS) petition was filed, Julie failed to appear at the hearing. On April 14, 2000, Sheboygan County Circuit Judge John B. Murphy determined that Prestin was in need of protective services pursuant to Wis. Stat. § 48.13(10), thereby finding that he was a child whose parent neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child. Judge Murphy ordered Prestin placed in a foster home under supervision of the Department for one year. The dispositional order also placed a number of conditions upon Julie. She was ordered to undergo an alcohol and other drug assessment (AODA), submit to a psychological evaluation and follow through with treatment, participate in a regularly scheduled visitation program, make reasonable efforts to obtain employment, and establish and maintain a residence suitable to Prestin's needs. Additionally, Julie and James were directed to meet with and cooperate with Prestin's social worker.

¶ 12. Julie did not meet most of these conditions, and James satisfied none. Hence, on December 4, 2000, the Department initiated termination of parental rights proceedings against them on grounds of abandonment and continuing need of protection or services. Prestin's social worker attached to the petition a statement explaining that the Department had attempted to help Julie and James comply with the April 14, 2000 dispositional order, but that James had not met with or cooperated with Prestin's social worker and Julie had not followed through with her AODA outpatient program, had not submitted to a psychological evaluation, had missed numerous appointments with the social worker and visits with Prestin, and had been unable to maintain employment or a suitable residence. The social worker attributed some of Julie's failure to comply with the order to her being in jail, absconding from jail, and being "on the run from jail."⁵ ¶ 13. On March 6, 2001, Judge Bolgert conducted a fact-finding jury trial to determine whether a statutory ground existed for terminating the parental rights of Julie and James. The ground ultimately alleged by the Department was that Prestin had a "continuing need of protection or services." See Wis. Stat. § 48.415(2). To determine that Prestin had a continuing need of protection or services, the jury had to find that the state had proven each of four elements by clear and convincing evidence. The questions for the jury were:

(1) Has [Prestin] been adjudged to be in need of protection or services and placed outside the home for a cumulative total of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law?

(2) Did the Sheboygan County Department of Health and Human Services make a reasonable effort to provide the services ordered by the court?

(3) Has [Julie] failed to meet the conditions established for the safe return of [Prestin] to [Julie's] home?

(4) Is there a substantial likelihood that [Julie] will not meet those conditions within the twelve-month period following the conclusion of this hearing?

¶ 14. The court answered the first question for the jury, stating that Prestin had been placed outside the home for six months or more. In fact, he had lived with the same foster family for 14 months. The...