State v. Tara S.

1. SCHUDSON, J.1 Tara S. appeals from the circuit court order terminating her parental rights to two of her children, Jashuan and Jashuana. She does not challenge the jury's finding that the evidence proved her abandonment of the children under Wis. Stat. § 48.415(1)(a)2 (1999-2000) and, therefore, that the statutory grounds for termination were established.2 She argues, however, that in ordering termination, the court erred because, she contends, it measured the best interests of the children as of the date of the termination petition rather than as of the date of the dispositional hearing. She is incorrect and, therefore, this court affirms.

2. On March 6, 2001, the State filed a petition for termination of Tara's parental rights to Jashuan, age nine, and Jashuana, age seven. On November 2, 2001, a jury returned unanimous verdicts finding that Tara had abandoned the children and that the children were in need of continuing protection and services.

3. The dispositional hearing was held on February 15 and May 16, 2002; the court presented its findings and conclusions and rendered its dispositional decision on May 20, 2002. Following a detailed recitation of the facts establishing Tara's abandonment of the children and their continuing need for protection and services, the court concluded that Tara's "unfitness" was "egregious and of such strength and magnitude that it ... undermined [her] ability to parent as of the date of the petition being filed." The court then went on, however, "to consider whether the inability to parent is seriously detrimental to the [children]." (Emphasis added.)

4. The court clarified that the test for termination "requires the [c]ourt to consider all the circumstances," and that, "for obvious reasons," those circumstances necessarily include the status of both the children and parent "as of the date of the termination." (Emphasis added.) Accordingly, the court went on to consider Tara's rehabilitative efforts and significant progress during the immediately preceding two years and "certainly at a minimum [the] period of the time that she spent in treatment at Me[]ta House and thereafter until today." (Emphasis added.)

5. The court then considered, among other things, that Tara had other children for whom she was "providing appropriate care." The court also commented that Tara "at this point has met all court conditions as they relate to Jashuan and Jashuana with the exception of the visitation which ha[s] been precluded by order." (Emphasis added.) And the court also considered Tara's testimony "that she feels bonded ... to both Jashuan and Jashuana" and believes that they "could be successfully integrated into her family." The court, complimenting Tara's efforts, examined the past and the current circumstances:

I guess what I'm saying is that there [sic] certainly seems that [Tara] at this point has made a tremendous amount of progress in terms of her ability to parent ... her children[,] including the children who are placed with her currently.

Those issues involving ... rehabilitation ... need to be weighed against the effect that the unfitness and inability to parent as of March [when the petition was filed] had and the continued effects it has on Jashuan and Jashuana, and that's what the statute rightfully requires courts to consider[-]what is deemed to be in the best interest of the children.

(Emphasis added.)

6. The court then commented on the evolving circumstances of Jashuan and Jashuana from the time of the petition "running to today's date." (Emphasis added.) The court reviewed their lengthy history in foster care and considered that "as of today" they "have expressed an intent and a desire to be adopted" by the foster parents. (Emphasis added.) The court commented on the current relationships of the children with Tara and with their foster mother and their integration into her family. Nearing its conclusion, the court reiterated that "it's really that assessment in weighing the circumstances today from the perspective of what's in the best interest of the children." (Emphasis added.)

7. In a termination-of-parental-rights case, "[t]he 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." Sheboygan County DHSS v. Julie A.B., 2002 WI 95, 4, 255 Wis. 2d 170, 176, 648 N.W.2d 402. See also Wis. Stat. § 48.426(2) ("The best interests of the child shall be the prevailing factor considered by the court in determining the disposition."). Whether a trial court has utilized the proper legal standard governing termination of parental rights presents a question of law subject to de novo review. See State v. Patricia A.P., 195 Wis. 2d 855, 862-63, 537 N.W.2d 47 (Ct. App. 1995). Here, the court applied the correct standard.

8. Tara primarily bases her appeal on a single premise; she asserts "that there is no legal precedent for using the time of filing the petition for determining the best interests of the children." She points out that "over fourteen months passed from the time the petition was filed and the dispositional hearing was concluded," and emphasizes that she "presented substantial evidence of her progress subsequent to the date the petition was filed." She contends that the court erred in failing to measure her children's best interests as of the day of disposition.

9. While Tara's legal premise is sound, her factual argument is refuted by the record. As quoted, the court repeatedly referred to Tara's and the children's current circumstances, right up to the day of disposition. The court repeatedly invoked the "best interests" standard, and explicitly addressed that standard in the context of all the facts and circumstances including Tara's significant recent progress and the children's current status with their foster parents in "the only home that they really know." The court carefully considered the facts and accurately applied the law.3

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