Waukesha County Dept. of Health & Human Services v. M.M.M., 2024AP1622, 10/30/24, District II (one-judge decision; ineligible for publication); case activity
In a straightforward case addressing sufficiency of the evidence, the COA affirmed the circuit court’s order to terminate M.M.M’s (referred to as Mary) parental rights. The Court found that the evidence was sufficient to support the jury’s verdict finding grounds to terminate her parental rights, and the circuit court did not erroneously exercise its discretion when it determined terminating Mary’s parental rights to her son (referred to as Neal) was in his best interest.
Grounds Trial
The County alleged two grounds for termination: 1) that Neal continued to be in need of protection or services; and 2) that Mary failed to assume parental responsibility for Neal. The only witnesses at the grounds trial were Mary and the social worker assigned to Neal’s case. Mary testified that she used cocaine and opioids while she was pregnant with Neal, which led to him being removed from her care shortly after he was born. She acknowledged using cocaine after Neal’s birth and said she was incarcerated for violating conditions of her probation for three months. Mary confirmed she had “multiple drug relapses” since Neal was born and did not always have stable housing. (¶¶ 4-5).
Mary testified that she participated in therapy and drug treatment, but did not complete the program and did not complete a court-ordered psychological evaluation. She declined her case worker’s request that she undergo random drug testing because she was already required to submit to random drug testing by her probation agent. Mary acknowledged she could not always be reached by her social worker, declined working with a parenting aide, and admitted that her treatment at a clinic was terminated because the clinic discovered her romantic relationship with a person who physically abused her and was subject to a no contact order. (¶¶ 6-7).
Mary said she worked with an organization called Welfare Warriors because her assigned social worker did not provide her with sufficient information to meet the conditions of return. Welfare Warriors helped her obtain housing and assisted her attendance at required meetings. (¶ 8). Regarding visits that were set up for her and Neal, Mary said they initially occurred at her aunt’s house, but her aunt was concerned that she was under the influence during the visits. The visits were moved to Mary’s house, but ended when Mary lost her housing. Virtual visits were then coordinated, but Mary agreed she did not attend them consistently. Finally, Mary said she was not employed since Neal was born in 2020 and was never his day-to-day primary caregiver. (¶ 9).
The social worker testified that Mary did not meet any of the nine court-ordered conditions of return. For example, she did not consistently attend therapy sessions, did not keep in contact with her social worker, had “numerous” positive drug tests, was unable to provide a safe and stable living environment for Neal, did not consistently attend Neal’s medical and therapy appointments, associated with persons who had a history of violence or substance abuse, cancelled or rescheduled multiple visits with Neal due to her own health issues, went weeks without seeing Neal, tested positive for drugs on a day she had a scheduled visit with Neal, and her probation was revoked for testing positive for drugs. (¶¶ 12-19).
Mary argued on appeal that the evidence was insufficient because her testimony showed that she went “beyond what was necessary” to have Neal returned to her and the County did not make reasonable efforts to assist her with meeting the conditions of return. (¶ 30). The Court, however, found that Mary’s testimony was contradicted by the social worker, who testified “that she attempted to maintain regular communication with Mary, helped connect her with mental health and substance abuse treatment providers, facilitated visits with Neal, and scheduled meetings with Mary to review her progress in meeting the conditions of return.” (¶ 31). The Court concluded that Mary did not offer any reason why the jury could not have found the social worker’s testimony more credible or why the jury could not find that the County made a reasonable effort to provide court-ordered services. (¶ 31). The Court also determined the social worker’s testimony was sufficient to establish that Mary did not meet the conditions of return and Mary did not “carry her burden of establishing the absence of credible evidence in the record supporting the jury’s’ verdict.” (¶ 32).
Regarding Mary failing to assume parental responsibility, the Court observed that Mary’s argument focused exclusively on her own testimony how her visits with Neal and expressions of concern for his welfare to others established a substantial relationship with him. But the Court noted that the social worker’s testimony about Mary’s drug use, inability to consistently attend visits with Neal, and that she never assumed day-to-day responsibility for Neal, were sufficient to sustain the verdict: “Though Mary expressed love and concern for her son and made some efforts to be a parental presence in his life, the trial record contained credible evidence from which the jury could conclude that she did not have a substantial relationship with him.” (¶ 34).
The Dispositional Phase
Neal’s foster mother testified at the disposition hearing that she fostered him since he was 16 months old was in the process of adopting him. She said he became part of the family with her husband and six biological children. The social worker confirmed that the foster parents were committed to adopting Neal and interacted well with the family. The social worker did not think Neal would be harmed if Mary’s parental relationship to him were terminated because he never lived with her and she was never his primary caregiver.
Mary testified “about her loving bond and experiences with Neal” and that she made efforts to help Neal overcome a speech difficulty. Mary said she was willing to continue working with the County if her rights were not terminated. (¶ 24). The circuit court found that terminating Mary’s parental rights was in Neal’s best interest. (¶ 25).
Mary argued on appeal that the trial court erroneously weighed the factors it was required to consider under Wis. Stat. § 48.426(2) because the circuit court emphasized Mary’s history of addiction, but did not give sufficient weight to Mary expressing her love and desire to have Neal returned to her. The Court found that the circuit court did not erroneously exercise its discretion because a parent’s arguments about her progress toward reunification and love for her children are not controlling considerations; rather, the circuit court’s concern at the dispositional hearing is the child’s best interest. (¶ 38). The Court observed that the circuit court “cited the likelihood that Neal would be adopted, his young age and overall good health, the fact that he had been separated from Mary for nearly his entire life, the lack of a substantial relationship with Mary and the resulting harm to him if that relationship were terminated, and the likelihood that Neal would enter into a more stable and permanent family relationship if he were to be adopted by his foster parents.” (¶ 39).
