State ex rel. Bohren v. Circuit Court for Milwaukee County

532 N.W.2d 135, 192 Wis. 2d 407, 1995 Wisc. App. LEXIS 293
CourtCourt of Appeals of Wisconsin
DecidedMarch 3, 1995
DocketNos. 95-0001-W, 95-0036-W
StatusPublished
Cited by1 cases

This text of 532 N.W.2d 135 (State ex rel. Bohren v. Circuit Court for Milwaukee County) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Bohren v. Circuit Court for Milwaukee County, 532 N.W.2d 135, 192 Wis. 2d 407, 1995 Wisc. App. LEXIS 293 (Wis. Ct. App. 1995).

Opinion

CANE, P.J.

As a result of a 1990 determination that they were children in need of protection or ser[413]*413vices, Tiffany W. and her sister, Myokra W., were placed in the legal custody of the Milwaukee County Department of Human Services (MCDHS). Since 1990, they have resided at the licensed Waukesha County foster home of David and Beverly C., and the circuit court for Milwaukee County has reviewed various permanency plans proposed for the children by MCDHS, including MCDHS's decision to arrange for the children to visit with their maternal aunt as a prelude to a potential permanent placement with her.

In November 1993, the foster mother, dissatisfied with MCDHS's decisions regarding visitation, filed a petition under § 48.64(4)(c), STATS.,2 asking the circuit court for Waukesha County, the Honorable J. Mac Davis presiding, to review MCDHS's decisions in this regard. The circuit court for Waukesha County entered an order regulating visitation. In December 1994, the foster mother petitioned the circuit court for Waukesha County for guardianship of the children, to terminate parental rights and to review MCDHS's decisions regarding visitation and its plan to permanently place the children with their maternal aunt. The circuit court for Waukesha County found MCDHS in contempt for violating its order regulating visitation; the guardianship and termination of parental rights proceedings are pending.

Clifford O'Connor, acting director of MCDHS, petitions this court to exercise its supervisory jurisdiction over the circuit court for Waukesha County and the Honorable J. Mac Davis to prohibit the following proceedings in that court: (1) review of MCDHS's decisions involving Tiffany W. and Myokra W.; (2) contempt proceedings against MCDHS under ch. 785, Stats.; and (3) [414]*414the foster mother's petitions for guardianship and termination of parental rights (TPR) under ch. 48, STATS. We have received and considered responses to O'Connor's petition. Proceedings in the circuit court for Waukesha County have been stayed pending disposition of O'Connor's petition.

The first issue is whether the circuit court for Waukesha County has concurrent jurisdiction with the circuit court for Milwaukee County in matters relating to the guardianship, care and placement of the children as well as jurisdiction to hear the petitions to terminate parental rights. We conclude that it does. The second issue is whether the Waukesha court erroneously exercised its discretion to entertain those proceedings. We conclude that it did, and we hold that the principles governing the exercise of concurrent jurisdiction require the Waukesha court to refrain from exercising its jurisdiction over the children. The final issue is whether this court has authority to issue a supervisory writ of prohibition to remedy the Waukesha court's decision to exercise jurisdiction. We conclude that we do. Therefore, we grant O'Connor's petition for a supervisory writ of prohibition to the circuit court for Waukesha County.

The record in this matter consists of materials accompanying O'Connor's petition and the responses. A more detailed recitation of the relevant facts follows.

MILWAUKEE COUNTY PROCEEDINGS

In February 1990, ten-month-old Tiffany and her newborn sister, Myokra, were placed in separate foster homes. Myokra was placed with David and Beverly C., and Tiffany joined her sister there in August 1990. On May 2, 1990, the circuit court for Milwaukee County determined that Tiffany and Myokra were children in [415]*415need of protection or services (CHIPS) under § 48.13(10), STATS., because their mother could not care for them and placed them in the legal custody of MCDHS.3 The CHIPS dispositional order has been extended yearly, and the children continue to reside with the Waukesha County foster parents.

Since the entry of the dispositional order, MCDHS's permanency plans have been reviewed administratively and by the circuit court for Milwaukee County ("the Milwaukee court"). A November 1991 administrative review board permanency plan compliance report envisioned returning the children to their mother once she complied with certain requirements. By November 1992, the administrative review board permanency plan compliance report reflected that MCDHS favored "TPR/adoption" as a permanency plan because their mother remained unable to care for them. The report indicated that a "TPR is currently in process" and that a "TPR referral has been made to the Adoption Unit as an adoptive resource has been located." The report does not identify the adoptive resource, but it appears to have been the foster parents.

On March 15, 1994, Bonnie Finkler, the MCDHS social worker assigned to the case, submitted a "court report for extension and revision of dispositional order and permanent plan review and extension." The report indicated that as of November 1993, the permanency plan had changed from TPR/adoption to relative placement because "a viable relative resource is available for the care of these children." The report stated that the children's maternal aunt, Gwendolyn E., contacted Finkler in February 1993 to request custody of them [416]*416and to express her concern that the biological family would lose contact with the children if they were adopted by non-relatives.4 After being contacted by Gwendolyn E., MCDHS began arranging visits between her and the older child in furtherance of its new permanency plan and recommended an independent home study of Gwendolyn E. to evaluate her potential as a long-term placement resource for the children. The report asked the Milwaukee court to extend the CHIPS dispositional order for a year.

At a May 19, 1994, hearing before the Milwaukee court, which the foster parents attended, there was extensive discussion about MCDHS's relative-placement permanency plan and the roles the foster parents and the biological family, specifically the aunt, would play under the new plan. Visitation issues were also discussed. The Milwaukee court adopted a permanency plan which provided that the children would continue in foster care with a goal of greater association and potential placement with the biological family. In an October 31 order memorializing the May 19 hearing, the Milwaukee court recommended that a neutral therapist supervise the children's visits with their aunt and extended biological family.

The Milwaukee court reviewed visitation again on August 23 and ordered that visitation continue under the supervision of MCDHS and subject to the professional opinion of the therapist working with the biological and foster families and the children. The permanency plan and visitation matters were again reviewed by the Milwaukee court on November 18. In an order memorializing the hearing, the Milwaukee court extended weekly visitation with the aunt to over[417]*417night visitation. The court again expressed its approval of MCDHS's plan that the children continue in foster care with the goal of greater association and potential placement with their aunt.

A December 9,1994, order of the Milwaukee court ordered MCDHS to implement a specific visitation schedule for December 8, 1994, through January 9, 1995. A December 22 order established the Christmas visitation schedule.

WAUKESHA COUNTY PROCEEDINGS

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Bluebook (online)
532 N.W.2d 135, 192 Wis. 2d 407, 1995 Wisc. App. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bohren-v-circuit-court-for-milwaukee-county-wisctapp-1995.