Termination of Parental Rights of Michael I.O., In re

• Decision Date: 25 June 1996
• Docket Number: No. 96-0932,96-0932
• Citation: 203 Wis.2d 148,551 N.W.2d 855
• Parties: IN re The TERMINATION OF PARENTAL RIGHTS OF MICHAEL I.O., A Person Under the Age of 18. GERALD O., Petitioner-Respondent, v. CINDY R., Respondent-Appellant, State of Wisconsin, by the Washburn County Child Support Agency, Co-Appellant.
• Court: Wisconsin Court of Appeals

Page 855

551 N.W.2d 855

203 Wis.2d 148

IN re The TERMINATION OF PARENTAL RIGHTS OF MICHAEL I.O., A Person Under the Age of 18 GERALD O., Petitioner-Respondent, v. CINDY R., Respondent-Appellant State of Wisconsin, by the Washburn County Child Support Agency, Co-Appellant.

No. 96-0932.

Court of Appeals of Wisconsin.

Submitted on Briefs June 6, 1996.

Opinion Released June 25, 1996.

Opinion Filed June 25, 1996.

For the respondent-appellant the cause was submitted on the brief of Eugene D. Harrington of Spooner.

For Michael I.O. the cause was submitted on the brief of Robert zumBrunnen of Spooner.

For the co-appellant the cause was submitted on the brief of Edwin W. Fischer of Shell Lake.

For the petitioner-respondent the cause was submitted on the brief of Paul M. Moldenhauer of Paul M. Moldenhauer, S.C. of Superior.

Before CANE, P.J., and LaROCQUE and MYSE, JJ. ¹

MYSE, Judge.

Cindy R. and the State of Wisconsin, by the Washburn County Child Support Agency, appeal an order granting Gerald O.'s petition to terminate his parental rights to his son, Michael I.O. Cindy and the State contend that the trial court erred by determining that the termination of Gerald's parental rights was in Michael's best interests. Because we conclude that the trial court erroneously exercised its discretion by determining the termination of Gerald's parental rights was in Michael's best interests, we reverse the order.

Michael was born out of wedlock on February 5, 1990. His parents, Cindy and Gerald, lived together for a substantial period of the time from Michael's birth until August 1991. Cindy and Gerald then separated, with Cindy residing in Spooner, Wisconsin, and Gerald residing in Colorado. In May 1992, Gerald was adjudicated the father of Michael and ordered to pay 17% of his gross income as child support. Gerald's child support obligation was later changed to $381 per month.

Because Gerald had not made any child support payments, Gerald was charged with four counts of criminal nonsupport contrary to § 948.22, STATS. At the end of 1994, Gerald's child support arrearage totaled $16,279. Plea negotiations led to an agreement in which Gerald agreed to terminate his parental rights and pay a lump sum of $20,506 to pay arrears to Cindy and the State in exchange for the district attorney dropping the nonsupport charges. Under the agreement, Cindy would receive approximately $11,500, and the State would receive the remainder of the money for past AFDC payments.

Gerald subsequently petitioned to terminate his parental rights to Michael, and Cindy opposed the petition. At the hearing on the petition, Gerald testified that he had not had any contact with Michael since August 1991, and that it would be in Michael's best interests to terminate his parental rights and receive the lump sum payment because of Gerald's precarious financial position and the possibility that he would go to jail on the nonsupport charges. Gerald further testified that the bank would not loan him $20,000 for the lump sum payment unless his parental rights were terminated.

Gerald, a licensed plumber, earned approximately $33,000 in 1994 and testified that his current take home pay is approximately $620 per week. Gerald made his child support payments from June 1995 to February 1996 and, although he expressed concerns about a future layoff, he testified that he could continue to make his child support payment if everything worked out with his current job. Cindy testified that she did not think it was in Michael's best interests to terminate Gerald's parental rights because she needs the child support to help provide for Michael. Michael's guardian ad litem also opposed the termination of Gerald's parental rights.

The trial court found that Gerald had abandoned Michael, had paid no child support until June 1995, and had not been any kind of a father to Michael. The trial court concluded that therefore it could not be in the child's best interests to retain Gerald as the father under the facts and circumstances of the case. Accordingly, the trial court granted the petition terminating Gerald's parental rights.

Cindy and the State contend that the termination of parental rights was not in Michael's best interests and therefore the court erred when it granted the petition. The ultimate decision whether to terminate parental rights is discretionary. In re J.L.W., 102 Wis.2d 118, 131, 306 N.W.2d 46, 52 (1981). To terminate parental rights, the trial court must make a determination that the termination of parental rights is in the child's best interests. See In re A.B., 151 Wis.2d 312, 320-21, 444 N.W.2d 415, 418 (Ct.App.1989); § 48.426, STATS. The determination of a child's best interests in a termination proceeding depends on firsthand observation and experience with the persons involved and, therefore, is left to the discretion of the trial court. In re Brandon S.S., 179 Wis.2d 114, 150, 507 N.W.2d 94, 107 (1993). The trial court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law and, using a demonstrated rational process, reaches a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982). The trial court's findings of fact will not be set aside unless clearly erroneous. Section 805.17(2), STATS.

We note that in other termination of parental rights cases, courts have concluded that the "best interests" analysis "presents a mixed question of law and fact with the precise determination of such criteria as psychological factors being questions of fact." See A.B., 151 Wis.2d at 321, 444 N.W.2d at 419. Because our result would be the same under either standard, we do not resolve the conflict between the two standards of review.

In making a decision whether to terminate parental rights, the trial court must give paramount consideration to the best interests of the child, which constitutes the prevailing factor. See §§ 48.01(2) and 48.426(2), STATS. Section 48.426(3) provides:

In considering the best interests of the child under this section the court shall consider but not be limited to the following:

(a) The likelihood of the child's adoption after termination.

(b) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.

(c) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to sever these relationships.

(d) The wishes of the child.

(e) The duration of the separation of the parent from the child.

(f) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current...