State v. S.H., 2023AP1786, 12/19/23, District I (one-judge decision; ineligible for publication); case activity
S.H. raises a very specific challenge to the order terminating her parental rights to her son, H.C.: that the circuit court failed to consider the age of H.C.’s foster mother with regard to the best interests of the child at disposition. The court of appeals rejects the challenge, and S.H.’s reliance on several prospective adoption cases, because the focus in the TPR context is whether the child is adoptable and whether the TPR would provide stability and permanence to the child, not on “whether a proposed adoptive resource is going to be approved in later proceedings.” Op., ¶19.
After S.H.’s no contest plea to grounds, the court held a contested disposition hearing, at which the foster mother testified. The foster mother testified that she would love to adopt H.C., that she was 64 years old, and that she did not have any concerns about her ability to provide for H.C. until he turned 18 and beyond, if needed.
In considering the statutory factors, the circuit court found that there was a “strong likelihood of adoption,” even if H.C.’s foster mother did not ultimately adopt. Op., ¶9. Nevertheless, S.H. argued that the court failed to consider the effect of the foster mother’s age on the likelihood of H.C.’s adoption. The court rejects the argument for a variety of reasons. First, as noted above, the court had a TPR petition before it, not an adoption petition. The court did not err when considering whether H.C. was adoptable, whether or not the foster mother’s desire to adopt would later be fulfilled. Second, the court noted that in the adoption context, the cases demonstrate that “age alone is not determinative.”
With regard to whether H.C. would enter into a more permanent and stable family relationship if the TPR were granted, the court concludes that the circuit court properly considered the sixth factor even if it didn’t explicitly consider the foster mother’s age or the chances that something could happen to the foster mother after S.H.’s parental rights were terminated. Again, the court holds that the foster mother’s age, health, and financial resources are simply not relevant to the court’s consideration of the TPR petition. Op., ¶24. This last statement on the lack of relevance of the foster mother’s likelihood of being approved to adopt H.C. falls flat. With the best interests of H.C. in mind, and specifically with regard to increasing his chances of having permanence and a stable family relationship, potential issues related to the foster mother would certainly appear to be relevant, even if not determinative.
