Monroe County v. G.L.B., 2024AP1596, 4/3/25, District IV (1-judge decision, ineligible for publication); case activity
Monroe County v. T.B., 2024AP1845, 4/3/25, District IV (1-judge decision, ineligible for publication); case activity
The COA issued two decisions affirming the circuit court’s dispositional orders finding that T.B.’s (the mother) and G.L.B.’s (the father) son was in need of protection and services (CHIPS) and placing the child in out-of-home care. The COA rejected the parents’ arguments that the circuit court erroneously denied their petition to transfer jurisdiction to Ho-Chunk Tribal Court and that the court erred in granting medical decision-making authority to the Monroe County Department of Human Services (the Department). The COA also disagreed with the father’s argument that the circuit court erroneously admitted at trial evidence regarding risk assessments of his parenting skills.
The mother, father, and their son are enrolled members of the Ho-Chunk Nation. The Department filed a CHIPS petition in July 2023 alleging that the parents were unable to provide for the child’s medical needs and seriously endangered his health. The child, who was 12 when the petition was filed, was diagnosed with Autism Spectrum Disorder, failure to thrive, a feeding problem, global developmental delays, Lennox-Gastaut Syndrome (a severe form of epilepsy), and myoclonic seizure disorder. (TB ¶ 2).
In August 2023, the mother and father petitioned to transfer the case to the Ho-Chunk Tribal Court. The child objected and advised that counsel for the Ho-Chunk Nation and the guardian ad litem concurred with the objection. The circuit court denied the petition.
After a five-day jury trial, the jury found that the child was in need of protection and services based on each parent’s inability to provide for the child’s medical needs such that continued custody with each of the parents would likely result in serious physical damage to the child. (TB ¶ 6). At the dispositional hearing, the circuit court ordered that the child continued to be placed with his aunt and authorized the Department to make all medical decisions for the child. (TB ¶ 7).
Transfer to Tribal Court
The parent of an Indian child who does not reside within the tribe’s reservation may petition the circuit court to transfer a CHIPS proceeding to the tribe’s jurisdiction Wis. Stat. § 48.028(3)(c). The circuit court shall transfer the proceedings unless, inter alia, “good cause exists to deny the transfer.” (Id.). When determining whether good cause exists to deny the transfer, the court may “not consider any perceived inadequacy of the tribal social services department or the tribal court of the Indian child’s tribe.” (Id.). The court may determine that good cause exists to deny the transfer “only if the person opposing the transfer shows by clear and convincing evidence” that one of three factors apply, including that the Indian child is age 12 or older and objects to the transfer. (Id.). The circuit court found that good cause exists based on the child’s objection, and that denying the transfer was warranted given that the GAL joined the child’s objection. (TB ¶ 21).
The COA interpreted § 48.028(3)(c)3. to require the circuit court to determine whether one of the three circumstances outlined by the statute exists and then consider, in its discretion, whether there is good cause to justify denying the transfer. (TB ¶ 23). Here, the circuit court determined good cause may exist because the child objected. The court then found that the child’s objection and GAL’s concurrence in the objection outweighed the parents’ request for transfer. (TB ¶ 24).
The mother and father argued that the circuit court improperly considered the resources available to the tribal social services department and tribal court. Although the circuit court remarked that the potential delays in the tribal court were concerning, the COA found that it “did so only after it had stated its decision and in response to remarks that the father made after the court stated its decision.” (TB ¶ 27).
The parents also argued that the circuit court’s decision denying transfer was invalid because it did not notify the tribal court of the transfer petition. However, § 48.028(3)(c)2. and 3. provide that a circuit court shall grant transfer “unless . . . the tribal court declines jurisdiction” or “[t]he court determines that good cause exists to deny the transfer.” The Court therefore held that the circuit court’s failure to determine whether the tribal court declined jurisdiction only invalidates denying transfer in the absence of good cause to deny. Because the COA rejected the parents’ argument that the circuit court denied transfer without good cause, it rejected their argument regarding notice to the tribal court. (TB ¶ 28).
Admissibility of Child and Caregiving Risk Assessments
A social worker prepared an assessment of the father in March 2022 related to a prior proceeding concerning the child’s brother, which was updated in December 2023. He testified at the trial regarding the methods he used to evaluate the parents’ caregiving abilities and he said most of the tests measure static factors that do not change over time. (GLB ¶ 35). The father objected to the social worker’s testimony and admission of the assessments because the social worker had not evaluated the parents since 2022. The circuit court overruled the objection because the assessments and testimony were relevant to the parents’ caregiving abilities. (GLB ¶ 35).
The COA rejected the father’s argument that the testimony and assessments were not relevant:
That the initial assessment predated the filing of the petition by 16 months and involved the child’s brother did not reduce its relevance on these issues given the unrefuted testimony that: most of the results reported in the initial assessment relate to static factors that are unchangeable and apply regardless of the needs of a particular child; the father had not made any gains on any of the factors; and the results remain applicable both to the father as a parent generally and to the father as a parent of the child at issue.
(GLB ¶ 44).
The father also argued that the social worker’s testimony, when he was asked to describe the father’s personality, was improper character and other-acts evidence. The COA found, however, that the testimony was not introduced to prove that the father committed certain acts, but that he has traits and levels of functioning that render him unable, for reasons other than poverty, to provide for the care of the child – which was an element the jury was required to determine. (GLB ¶ 51).
Granting Medical Decision-Making Authority to the Department
The circuit court ordered placement of the child with his aunt and provided the Department legal authority to sign all medical consents or authorizations for the child to receive medical care, but allowed the parents to access medical information online and meet with medical staff. (GLB ¶ 59).
The father argued that the court could not lawfully grant medical decision-making authority to the Department because it did not transfer legal custody of the child to the Department. The COA noted that, while § 48.345(3) provides the circuit court authority to place the child in the home of a relative and § 48.345(4) authorizes the court to transfer custody to the Department:
[T]here is no language in the statute precluding the court . . . from granting the county department decision-making authority over the medical care and treatment of the child as part of the out-of-home placement disposition, in the exercise of the circuit court’s discretion. In other words, there is no language in any part of § 48.345 that requires the court to transfer legal custody to the county department in order to grant medical decision-making authority to the county department as part of another disposition.
(GLB ¶ 61).
The mother argued that the circuit court’s order misapplied Wis. Stat. § 48.373, which provides that the circuit court may authorize medical services if the court determines that reasonable cause exists for the services and the minor consents, because it did include a provision that the medical care must be supported by reasonable cause. The Court rejected the argument because the circuit court did not proceed under § 48.373, but under § 48.345. (TB ¶ 36).
