(Cite as: 154 Wis.2d 868,  455 N.W.2d 678,  1990 WL 57500 (Wis.App.))


(The decision of the Court is referenced in the North Western Reporter in a table captioned "Wisconsin Court of Appeals Table of Unpublished Opinions".)


Court of Appeals of Wisconsin.

In the Interest of S.L., A Person Under the Age of Eighteen

D.M., Appellant,



No. 89-1380.

Feb. 7, 1990. [FN†]

Appeal from an order of the circuit court for Winnebago county:  THOMAS S. WILLIAMS, Judge.

Circuit Court, Winnebago County.


SCOTT, Judge.

***1 D.M.'s 14-year-old daughter, S.L., was found to be a child in need of protection or services (CHIPS) pursuant to sec. 48.13(4), Stats.   D.M. appeals from that portion of the dispositional order continuing S.L.'s foster home placement, contending that under 25 U.S.C. sec. 1912, the Indian child welfare act, the evidence was insufficient to support that action.   We are satisfied the record shows that active efforts were made to prevent the breakup of the Indian family, that those efforts were unsuccessful, and that continued custody by D.M. would likely result in serious emotional or physical damage to S.L.   We therefore affirm the order.

In October 1988, S.L. confided to a school counselor that her mother tried to choke her.   A county social worker took S.L. to the police department, where photographs were taken of the bruises to her neck and throat.   D.M. does not deny the incident.

A CHIPS petition was filed alleging S.L. was in need of protection or services pursuant to sec. 48.13(3), Stats.   D.M. later agreed to an amended petition stating that she was unable to care for S.L., pursuant to sec. 48.13(4), and waived a jury trial.   After the court was made aware of S.L.'s Indian heritage, the dispositional hearing was adjourned until January 25, 1989 to allow S.L.'s tribe to be notified.   See 25 U.S.C. sec. 1912(a).   At the hearing, D.M. moved to dismiss under 25 U.S.C. sec. 1914, alleging that the evidence was so insufficient as to violate 25 U.S.C. sec. 1912(d) and (e). The court denied the motion, transferred custody of S.L. to the Winnebago County Department of Social Services (department) and continued her placement in the foster home in which she was residing.

The Indian child welfare act, 25 U.S.C. secs. 1911 to 1963, supersedes the provisions of the children's code in actions for foster care placement. Sec. 48.028, Stats.;  see also 25 U.S.C. sec. 1911(a).  25 U.S.C. sec. 1912 provides in relevant part:

(d) Remedial services and rehabilitative programs;  preventive measures.   Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders;  evidence;  determination of damage to child.   No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

D.M. first contends that the evidence is insufficient to support the court's finding that the department made "active efforts" to provide the remedial services necessary to prevent the breakup of the family and that the efforts did in fact prove unsuccessful.   D.M. concedes that the department offered or provided a variety of services, but she claims that since most were provided before S.L. was removed from the home the efforts do not qualify as "active efforts" made to prevent the family's breakup.

***2 In a challenge to the sufficiency of the evidence, the evidence supporting the findings of the trial court need not constitute the great weight or clear preponderance of the evidence.  Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 663, 287 N.W.2d 742, 743 (1980). Rather, the evidence to support a reversal must itself constitute the great weight and clear preponderance of the evidence.  Id.  The trial court found that the county had offered D.M. numerous services to remedy the "substantial chaos" in D.M.'s home.   The court also found that department efforts were unsuccessful largely because D.M. had not actively cooperated with them.   A trial court's findings will be upheld on appeal if, upon review of the record, they are not clearly erroneous.  Micro-Managers, Inc. v. Gregory, 147 Wis.2d 500, 511, 434 N.W.2d 97, 101-02 (Ct.App.1988).

At the dispositional hearing, a department social worker, Patricia Wegman, testified that the department had become involved with D.M. approximately two years earlier because of money and home management problems.   The department mainly provided D.M. with assistance in budgeting and household organization, helping her with weekly grocery shopping, and planning and preparing meals.  In addition, the department's mental health clinic staff met with D.M. on at least three occasions regarding her depression.   They assessed D.M. for alcohol and other drug abuse (AODA), after which she was advised to undergo further assessment and possible treatment, a referral D.M. did not pursue.

Finally, Wegman testified that once S.L. was removed from the home, D.M. refused supervised visitation with her daughter and did not request any visitation between October 11 and December 21, 1988.   Wegman also testified that she had difficulty meeting with D.M. because D.M. sometimes canceled or failed to keep various appointments.   As an example, when S.L. was taken into custody, D.M. did not respond to messages left at her home by the department until two days later.   S.L. herself testified that she and her two small brothers were sometimes left alone for several days on end and that she did not want to return home because she felt ignored by and afraid of her mother.

We cannot say the court's findings are clearly erroneous.   The record indicates that the department offered or provided D.M. a variety of services over a nearly two-year period.   That the majority of these efforts occurred before the choking incident does not diminish the fact that they were aimed at actively preventing the breakup of the family.   Furthermore, since the amended petition alleged a general inability to care for S.L., rather than a discrete allegation of physical injury, the entire scope and duration of services are relevant to whether D.M. is able to care for S.L.   That the efforts were unsuccessful is shown by S.L.'s desire to remain in foster placement, D.M.'s refusal to pursue the recommended AODA treatment, D.M.'s failure to respond to the department for two days after S.L. was removed from the home, and by the attack itself of mother upon daughter after lengthy department intervention.

***3 D.M. next argues that the evidence is insufficient to support the determination required by 25 U.S.C. sec. 1912(e) that returning custody to D.M. would be "likely to result in serious emotional or physical damage" to S.L.   D.M. claims the county failed to sustain its burden because the psychologist who testified in favor of continued foster placement based his conclusion on only two sessions with S.L. and did not see her interact with D.M. or others.   Finally, D.M. argues that because S.L. exhibited troubled behavior while in foster care, continued placement there is as likely to result in serious emotional or physical damage.   We disagree.

Psychologist Michael Daehn, fully qualified as an expert, testified that after reviewing S.L.'s history, interviewing her twice, and administering several psychological tests to her, he concluded that returning S.L. to her mother's custody would result in serious emotional or physical damage.   He also testified that S.L.'s adamancy in wanting to remain in foster care, her suicidal gesture and her difficulties at school denoted an emotional fragility likely to be intensified by returning custody to D.M.

The court chose to give great deference to that opinion.   The credibility, sufficiency and weight of expert evidence are for the fact finder to determine.  Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis.2d 431, 441, 444 N.W.2d 743, 748 (Ct.App.1989).   The court recognized S.L.'s personality problems and concluded, based on the psychologist's testimony, that custody with D.M. likely would result in serious emotional damage to S.L. and that continued placement in foster care was in S.L.'s best interest.   Those conclusions are consistent with the requirements of both 25 U.S.C. sec. 1912(e) and sec. 48.01(2), Stats.

By the Court.--Order affirmed.

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