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In re C.R.

Court of Appeals of Wisconsin, District I

February 17, 2016

In the interest of C.R.
v.
T.R., Respondent-Appellant. S.O., Petitioner-Respondent, In the interest of D.R S.O., Petitioner-Respondent,
v.
T.R., Respondent-Appellant.

APPEALS from orders of the circuit court for Milwaukee County Cir. Ct. Nos. 2013JI22 2013JI23 MARY E. TRIGGIANO, Judge.

Before Curley, P.J., Kessler and Brennan, JJ.

CURLEY, P.J.

¶1 Todd appeals from the trial court's orders granting child abuse injunctions against him as to his two minor children, Adam and Kyle, after their mother (Todd's ex-wife), Susan, filed petitions pursuant to Wis.Stat. § 813.122 (2013-14)[1] alleging that Todd had abused them.[2] On appeal, Todd argues that the trial court: (1) improperly raised legal issues that were waived due to the issues not having been argued at trial or in Todd's prior appeal; (2) that the trial court improperly engaged in statutory interpretation of Wis.Stat. § 48.02(1)(gm) because the statute is unambiguous; and (3) that even if § 48.02(1)(gm) is deemed ambiguous, the trial court's interpretation was incorrect and should be reversed. We disagree and affirm.

Background

¶2 This case is before this court for the second time and involves child abuse injunctions ("CAIs") entered against Todd as to his two minor children, Adam and Kyle, pursuant to Wis.Stat. § 813.122.

¶3 This matter began when Susan filed petitions seeking CAIs against Todd for Adam and Kyle on February 14, 2013.[3] The petition filed in Adam's case alleged that Adam had recently been the victim of mental/emotional abuse from witnessing Todd physically and verbally abusing Kyle, who is Adam's younger brother. The petition further alleged that Adam was verbally abused and that Todd had pulled his hair, pushed him, yelled at him, embarrassed him, and intimidated him when he was younger, as well as that he had been spanked in the past and that he most recently had suffered blows to the head. The petition filed in Kyle's case alleged that Kyle had recently complained that his head hurt after returning from Todd's house, that Todd recently hit Kyle on the head when Todd became angry with Kyle about his homework, and that Adam had an audio recording of the incident on his phone. The petition in Kyle's case further stated that an Oak Creek police officer listened to the recording and thereafter called Child Protective Services.

¶4 A Temporary Restraining Order and Notice of Injunction Hearing ("TRO") was issued on February 14, 2013, in each case, and the injunction hearing was set for February 28, 2013.[4] By agreement of the parties, the injunction hearing was later rescheduled for March 5, 2013, at which time the parties appeared before the court. After discussing the matter with the parties, some of which occurred off the record, the parties voluntarily requested that the court adjourn the injunction hearing for a period of approximately ninety days in the hopes that they could resolve the issues on their own. The parties thereafter entered a written agreement to that effect, and the injunction hearing was adjourned to May 31, 2013.

¶5 When the parties appeared for the adjourned injunction hearing on May 31, 2013, they informed the trial court that they had been unable to reach a satisfactory resolution and that it would be necessary to move forward with the injunction hearing.

¶6 Multiple parties, including Adam, Todd, Adam's and Kyle's therapist, and Todd's therapist, testified at the injunction hearing. The trial court heard considerable testimony as to Adam's and Kyle's relationship with Todd, their fear of Todd, the alleged verbal and physical abuse that Todd subjected Adam and Kyle to, and the therapy that Adam and Kyle had been receiving. The trial court also heard testimony from Todd regarding his desire to improve his parenting skills and relationship with Adam and Kyle, as well as testimony regarding the therapy sessions and parenting classes that Todd had begun participating in after the filing of the petitions.

¶7 At the conclusion of the hearing, the court found that grounds for the injunctions existed under Wis.Stat. § 813.122 based on its finding that Adam and Kyle had suffered emotional damage. Specifically, the court stated that it was "satisfied that there is a great deal of fear and anxiety" and that it was "satisfied to reasonable grounds to believe that the respondent did in fact engage in conduct that created a great deal of anxiety and fear in [Adam and Kyle]." The court thereafter entered the injunctions for a period of ninety days, running from May 31 to August 31, 2013.

¶8 Todd appealed that decision, S.O. v. T.R., Nos. 2013AP2242/2243, unpublished op. and order (WI App July 14, 2014), and argued that the injunctions should be reversed because the evidence was insufficient to support the trial court's finding that Adam and Kyle had suffered emotional damage and that the trial court had failed to make the required finding that Todd had neglected or refused to obtain treatment for Adam and Kyle as required by Wis. Stat . § 48.02(1)(gm).[5]

¶9 In the earlier appeal, we determined that the issuance of an injunction on the ground of emotional damage required a finding that the children were: (1) exhibiting one or more characteristics of emotional damage to a severe degree, see Wis. Stat. §§ 48.02(1)(gm) and 48.02(5j); and (2) that the respondent had neglected or refused to obtain treatment or take other steps to ameliorate those symptoms, see Wis. Stat. § 48.02(1)(gm). S.O., Nos. 2013AP2242/2243, unpublished op. and order at 3. While we concluded that the trial court's conclusion that Adam and Kyle suffered from fear and anxiety was not clearly erroneous, we agreed with Todd that the trial court had not made a finding as to whether Todd had neglected or refused to obtain treatment for Adam's and Kyle's symptoms of emotional damage. Id. at 2, 5. We therefore reversed and remanded the matter to the trial court and directed that court to determine whether Todd had neglected, refused, or was otherwise unable to obtain the necessary treatment or take steps to ameliorate Adam's and Kyle's symptoms. Id. at 5.

¶10 On remand, the trial court determined that in order to answer that question, it needed to first determine which time period it should consider-the time period leading up to the filing of the CAI petitions or the time period leading up to the injunction hearing-when reviewing the evidence presented as to whether Todd had failed or refused to obtain treatment or otherwise undertake steps to ameliorate Adam's and Kyle's symptoms. Finding no guidance in the Wisconsin Statutes or Wisconsin case law, the trial court concluded Wis.Stat. § 813.122 was ambiguous.

¶11 Based on its review of multiple subsections of Wis.Stat. § 813.122, the trial court concluded that only evidence of the steps the respondent made to obtain treatment or otherwise ameliorate the children's symptoms leading up to the filing of the petition should be considered when determining whether to grant a CAI. Specifically, the trial court considered that an injunctive relief hearing must be held within fourteen days after a petition is filed, see § 813.122(4)(c), and contemplated that in light of that short timeframe, a respondent would be unable to meaningfully obtain treatment or take other steps to ameliorate a child's symptoms in a way that would have a significant impact.

¶12 The trial court also looked to the plain language of the statute, which requires that a petition set forth facts showing that the respondent "engaged in" abuse or that the respondent may engage in abuse based on the respondent's "prior conduct." See Wis. Stat. § 813.122(6)(a)3. The court concluded that the use of the past tense "engaged in" and the reference to "prior conduct" suggested that only facts leading up to the filing of the CAI petition should be considered. Finally, the trial court considered the common sense meaning of the statute and concluded that because a respondent can only be required to respond to the facts alleged in the petition, only the facts as they existed at the time the petition was filed should be considered when determining whether to grant a CAI.

ΒΆ13 After determining that the time frame of evidence to consider for the purpose of determining whether Todd had neglected, refused, or was otherwise unable to obtain necessary treatment or take steps to ameliorate Adam's and Kyle's symptoms was limited to facts as of February 14, 2013-the date Susan filed the petitions-the trial court, in a very thorough written decision, concluded that Susan had established, and the evidence adduced at the injunction hearing supported, that Todd had neglected, refused, or was unable for reasons other than poverty to obtain treatment or take steps to ameliorate Adam's and Kyle's symptoms of emotional damage. The trial ...


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