Kristi L. M. v. Dennis E. M.
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2007 WI 85 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2005AP1034 Kristi L. M., J. K. M. and J. M., Petitioners-Respondents, v. Dennis E. M., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (No Cite) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 3, 2007 April 11, 2007 Circuit Dodge Richard J. Callaway JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs by Brian A. Pfitzinger and Elbert & Pfitzinger, Ltd., Juneau, and oral argument by Brian A. Pfitzinger. For the petitioners-respondents there was a brief by Kenneth R. Sipsma, Erika L. Bierma, and Sipsma, Hahn & Brophy, L.L.C., Madison, and oral argument by Kenneth R. Sipsma. An amicus curiae assistant corporation Corporation Counsel. brief was filed by Zev counsel, on behalf of D. Kianovsky, Dodge County 2007 WI 85 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP1034 (L.C. No. 2005CV192) STATE OF WISCONSIN : IN SUPREME COURT Kristi L.M., J.K.M. and J.M., FILED Petitioners-Respondents, v. JUL 3, 2007 Dennis E.M., David R. Schanker Clerk of Supreme Court Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 LOUIS B. BUTLER, JR., J. Affirmed. Dennis E.M. seeks review of an unpublished summary disposition order of the court of appeals1 affirming a circuit court order that imposed a child abuse injunction against Dennis, restricting his contact with his two children, J.K.M. and J.M. The injunction was imposed after Dennis's wife, Kristi2 L.M., filed a petition alleging that she 1 Kristie L.M. v. Dennis E.M., No. 2005AP1034, unpublished order (Wis. Ct. App. September 14, 2006). 2 The petitioner-respondent's name is spelled incorrectly in the case caption. The record indicates the petitionerrespondent's first name is "Kristi." We use the correct spelling in this opinion, and we direct the Clerk of the Supreme Court to amend the caption accordingly. No. found bruises on the head of the couple's 2005AP1034 11-month-old J.K.M., after the child's visitation with Dennis. boy, Kristi also alleged Dennis had made numerous statements suggesting he posed a threat to the safety of Kristi, the children and himself. ¶2 Following a hearing, the Dodge County Circuit Court, Honorable Richard Callaway, Reserve Judge, ordered the injunction pursuant to Wis. Stat. § 813.122(5)(a)3. (2005-06).3 Dennis appealed the decision, arguing that the circuit court erroneously exercised its discretion in granting the injunction. The court of appeals issued a summary order, reversing the circuit court's decision as to J.M. and affirming its decision as to J.K.M.4 Dennis sought review of the court of appeals' order affirming the injunction as to J.K.M. ¶3 We conclude that the circuit court acted within its discretion in issuing the injunction as to J.K.M. because Dennis's prior conduct, including the bruising of J.K.M., gave the circuit court reasonable grounds to believe engaged in abuse and may engage in abuse of J.K.M. that Dennis We therefore affirm the summary order of the court of appeals. I ¶4 On December 13, 2004, Dennis separated after six years of marriage. E.M. and Kristi L.M. Dennis filed a petition 3 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 4 Kristi L.M. did not seek cross-review of the court of appeals' reversal of the circuit court's injunction as to J.M. We therefore do not address the court of appeals' order as it concerns J.M. 2 No. for divorce on February 28, 2005. 2005AP1034 The couple had two minor children, J.K.M., born April 14, 2004, and J.M., born February 8, 2002. A temporary order in the divorce proceeding directed that Dennis was to have the children Monday through Friday from 7:30 a.m. to 1:00 p.m., unless he was off work, in which case placement would be from 7:30 a.m. until 5:00 p.m. Dennis also had visitation for one overnight per week and for one four-hour period of time each weekend. ¶5 On temporary April child 4, 2005, abuse Wis. Stat. § 813.122 Kristi filed restraining alleging Dennis a order had petition for pursuant inflicted a to physical injury on J.K.M. and had caused emotional damage to J.M. In a statement in support of the petition, Kristi averred she found bruises on J.K.M's head "consistent with fingerprints" J.K.M. returned from a visitation with Dennis. after Kristi alleged that Dennis had a "long history of mental illness." She stated that Dennis had called in December 2004 to tell her that he "had made his final goodbyes to the children and told me he wasn't coming home after work and I wouldn't see him again." She averred Dennis called her in February 2005 to tell her he was going to spend the day at the cemetery. Kristi stated she did not believe the children were safe in Dennis's care. ¶6 the On April 8, 2005, the circuit court held a hearing on motion. Kristi involving Dennis. gave testimony about several incidents She recounted a conversation she had with Dennis one night in early January 2005 when he called her on his way home from work: 3 No. 2005AP1034 KRISTI: He asked me if I read the article in the newspaper about what happened in Montello and I said I was not aware of it, what happened? And he said that there was a man who was served divorce papers by his wife, took himself and his 17-month-old son and killed him and himself. He became very quiet ATTORNEY: Was he who's "he" now? KRISTI: Dennis. He became very quiet, started crying and said [he could] relate to that. ¶7 Kristi also testified about a conversation she had with her three-year-old son, J.M.: KRISTI: [J.M.] said, mommy, can we talk and I said yeah. . . . So I sat down next to him on the step and he said we're going to die and I said, [J.M.], who said that to you and who told you that and he didn't say anything. And I asked him again, [J.M.], who told you that and he said daddy. And I said, well, what else did daddy say and he said words and I told him that, um, it was okay to say what daddy said and then he said mommy's a bitch and I asked him if it was just mommy that was going to die. He said, no, mommy, [J.M.], [J.K.M.] and daddy. ¶8 November Kristi testified that Dennis told her that one day in 2004, he "was downstairs doing laundry and thought about hanging himself" while he was supervising the children. She said that in June 2000 Dennis "was threatened to take an overdose of pills." very depressed and She said that since she and Dennis had separated in December 2004, Dennis had tried "several times" to get himself "emergency detained." ¶9 of In his testimony, Dennis admitted to having a history emotional Kristi's problems allegations. and depression, Dennis denied but disputed telling Kristi most of that he thought about hanging himself while the children were in his care, and denied telling Kristi he was going to spend the day at 4 No. the cemetery. to die. 2005AP1034 He denied telling J.M. that they were all going He admitted mentioning to Kristi the story of the Montello man who had killed himself and his son, but "just to see if [Kristi] had heard about it." He stated he told Kristi he'd said goodbye to the children and wasn't coming home because he was angry about a large fuel bill. Dennis said he'd talked about having himself "emergency detained" in a hospital, but his therapist at the time didn't think it was necessary. ¶10 Kristi also testified about an incident that occurred on March 25, 2005, while Dennis was supervising the children at his home. She said Dennis called her to say that J.K.M. had hit his head on the entertainment center. After J.K.M. was returned to Kristi's care later that day, she noticed swelling and a "fairly long mark" on the left side of the infant's head, a laceration on his forehead, a red mark on his chin, and redness on his knees and tops of his feet. Kristi discovered bruises three days later when "the swelling had gone down and you could see that there were three distinct marks on the side of his head that were round like a fingerprint." Kristi then took J.K.M. to the police department, where she was directed to take him to the hospital. ¶11 Dr. Halim Hennes treated J.K.M. in the emergency room at Children's Hospital in Milwaukee, and testified about his examination of J.K.M. Dr. Hennes said he discovered circular bruises on the side of J.K.M.'s head. two He ordered a head CT (computed tomography) scan, the results of which were normal, and a skeletal survey, 5 which showed no evidence of No. fractures. 2005AP1034 When asked to give his opinion as to the medical probability that the bruises were caused by child abuse, Dr. Hennes replied, "very minimal." "did not rule . . . out" Dr. Hennes later added that he child abuse as the cause of the bruises, but said its "likelihood" as the reason for the bruises "is small." ¶12 Dr. Virginia Greenbaum, Medical Director at the Child Protection Center at Children's Hospital of Wisconsin, testified about her examination of police photographs of J.K.M.'s bruises and relevant medical records. Dr. Greenbaum said the photographs showed three bruises on the left portion of J.K.M's scalp and a bruise on the right side of his forehead. She testified that the bruises were consistent with markings caused by fingers or knuckles pressing on the child's skull. Dr. Greenbaum testified the bruises were suspicious for abuse for several reasons: A child who is not too mobile, who is a pre-cruiser, typically has no bruises at all . . . they can't get themselves into trouble, can't generate that much force and can't move fast. Once in a while you see one bruise or perhaps two but to see four . . . is somewhat unusual and it's very unusual to see them clustered in one area over the scalp with absolutely no explanation from the caretaker. . . . . I asked the mother about [J.K.M. falling against] the entertainment center. . . . I would expect that the child is would have to either be crawling into it or standing and then fall and bump against it, either, which it's a very minor trauma, very low velocity. At most, I would expect to see a single bruise, probably 6 No. 2005AP1034 on the forehead. . . . Certainly you wouldn't expect to see a cluster of three individual bruises. . . . Dr. Greenbaum experience, However, testified she she that, suspected said she the could based bruises not on her were training caused determine who by and abuse. caused the bruises, nor could she say whether the bruises occurred at the same time. ¶13 Dennis denied grabbing J.K.M. by the head, and stated that he believed his hands were too small to fit around J.K.M.'s head to cause the child's bruises. He testified that J.K.M. received the bruises by falling and striking his head on the door of the entertainment center while reaching for some toy blocks. ¶14 Dr. Michael Haight, a psychologist Dennis had been seeing for about four months, also testified at the hearing. He stated Dennis had been diagnosed with major depressive disorder and had been hospitalized in 2000 or 2001. Dennis was still January 2005. somewhat depressed but He reported that had improved since Dr. Haight said Dennis told him that he was taking his medication. He said Dennis had reported that he had been suicidal at one time in the past, but that he did not believe Dennis was now a suicide risk, and that Dennis had given no indication he would be a danger or threat to his children. Dr. Haight testified that "there would be greater potential" for Dennis to be a threat to his own safety and that of others "if he were not on his medication." 7 No. ¶15 2005AP1034 When Dennis was asked if he was taking his medication, he said that he had been taking it regularly since the middle of December. He said that prior to the middle of December, "I did take it sporadically. medicine." When If I'd feel good, I'd take myself off the asked if he might take himself off his medication again in the future, he responded, "I can't answer that." ¶16 Judge Callaway granted the motion for an injunction at the conclusion of the hearing, stating his reasons as follows: I'm very concerned about the fact that a psychologist will say, when I asked him the question that if he would not take his medication, that, yes, [failure to take the medication] . . . could result in a a problem for the children. . . . . If [a person prescribed medication is] on the medication, it seems to keep them very, very calm and less likely to [cause problems]. . . . . But I am concerned about the fact that we have a[n] 11-month-old child who ends up with some bruises; that they're they're really not consistent with hitting your head against something. They're it's an unusual marking. And that's sort of scary. . . . I agree with the guardian ad litem in this case: It's a very close call. . . . . [T]here are reasonable grounds to believe that [Dennis] has engaged in, or threatened to engage in, abuse to the child. That abuse can mean mentally as well as physically and I'm afraid, under the circumstances, we might have both. . . . . 8 No. 2005AP1034 I'm concerned about the cumulative aspect of the evidence. I see no reason why [Dennis] would call his wife and ask her if have you heard about the fellow in Montello that killed his child and himself. There's no reason to bring that up. It may be of interest in an in the newspaper but not to call her and ask her about it. The doctor, his own psychologist, indicated that he was suicidal at one time. That he also testified that if he refused to take his medication he could be could cause danger to himself or to others. That's pretty important. ¶17 Judge Callaway granted the motion for an injunction as to both children. form, marking On April 8, 2005, he signed an injunction boxes that ordered Dennis to "avoid the child[ren]'s residence and/or any premises temporarily occupied by the child[ren] now and in the future" and "avoid contacting or causing any person other than a party's attorney to contact the child[ren] unless [Kristi] consents in writing and the court agrees the contact is in the best interest of the child[ren]." In an attachment to the injunction, Judge Callaway ordered that Dennis's visitation with the children be limited to "supervised visitation at times agreed to by [the guardian ad litem]." ¶18 The On April 15, 2005, Dennis filed a notice of appeal. court of appeals disposed of the appeal disposition order dated September 14, 2006. by a summary Kristie L.M. v. Dennis E.M., No. 2005AP1034, unpublished order (Wis. Ct. App. September 14, 2006). circuit court acted The court of appeals concluded that the within its discretion in granting the injunction as to J.K.M because the bruises to J.K.M.'s head were either "severe" bruises or a nonenumerated 9 "physical injury" No. Wis. Stat. § 48.02(14g)5 constituting under "abuse" 2005AP1034 within the meaning of the child abuse restraining orders and injunctions statute. 3-4. Kristie L.M., No. 2005AP1034, unpublished order, pp. As to J.M., however, the court of appeals concluded the circuit court erroneously exercised its discretion by issuing the injunction because no evidence was presented to show that J.M. suffered "abuse" within Wis. Stat. § 813.122(5)(a)3., "physical injury" (not as alleged in the meaning demonstrated J.M's case) damage," see Wis. Stat. § 48.02(14g) and (1)(gm). ¶19 by or of either "emotional Id., pp. 5-7. Judge Charles P. Dykman dissented from the court of appeals' summary disposition order as to J.K.M. on grounds that J.K.M.'s bruises were not "severe" within the meaning of § 48.02(14g) and therefore reasonable grounds did not exist to issue the injunction. Kristie L.M., No. 2005AP1034, unpublished order, pp. 7-8 (Dykman, J. dissenting). Judge Dykman also noted that a child abuse injunction creates a rebuttable presumption in child custody proceedings that joint legal custody is not in the best interest of the child under Wis. Stat. § 767.24(2)(b)2.c. (2003-04),6 and expressed a concern that "some 5 the summary order whether the court of the bruises to J.K.M. constituted they were "severe" bruises, or whether "not limited to" catch-all under See Kristie L.M., No. 2005AP1034, 6 to It is unclear from appeals believed that "physical injury" because they fell under the Wis. Stat. § 48.02(14g). unpublished order, p. 3. Wisconsin Stat. § 767.24(2)(b)2.c. was renumbered Wis. Stat. § 767.41(2)(b)2.c. by 2005 Wis. Act 443. 10 No. child abuse brought on actions, for injunctions questionable the custody judgment." ¶20 and sole domestic evidence as purpose of abuse injunctions precursors insuring a 2005AP1034 to are divorce favorable legal Id., p. 8. Dennis filed a petition asking this court to review the court of appeals' order affirming the circuit court's order of an injunction to determine whether the injunction infringed upon his constitutional right to have a relationship with his child.7 We granted review. We subsequently granted a motion of the Dodge County Corporation Counsel to file an amicus brief, which has been received. We now affirm. II ¶21 This is the first time that this court has reviewed an order granting a motion for an injunction under the child abuse restraining order and injunctions statute, Wis. Stat. § 813.122, 7 Dennis casts the issue presented in this case in constitutional terms, but fails to develop the constitutional arguments in his appeal. We note that a petition for an injunction under Wis. Stat. § 813.122 enjoining a parent from having contact with the parent's child, like a judicial proceeding for termination of parental rights (TPR), implicates the fundamental rights of the parent. See T.M.F. v. Children's Serv. Soc'y of Wis., 112 Wis. 2d 180, 184-85, 332 N.W.2d 293 (1983) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.")). Unlike a TPR proceeding, the degree to which these rights are implicated may vary from case to case, depending upon the duration and terms of the injunction. We do not address further the constitutional issues involved in this review. See Clean Wisconsin, Inc. v. Pub. Serv. Comm'n, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (undeveloped arguments need not be addressed). 11 No. 2005AP1034 to determine whether reasonable grounds existed to issue the injunction.8 The question of whether a court or circuit court commissioner may grant such an injunction is addressed to the discretion of the court or circuit court commissioner that hears the petition. See M.Q. v. Z.Q., 152 Wis. 2d 701, 708, 449 N.W.2d 75 (Ct. App. 1989). However, an injunction may not issue unless the judge finds reasonable grounds to believe that the respondent has engaged in or may engage in abuse of the child victim. ¶22 Id. We review the question grounds exist in two parts. of See id. whether such reasonable First, we will affirm the court or circuit court commissioner's findings of fact unless they are clearly erroneous. Id. Second, we review de novo the court or circuit court commissioner's conclusion of law as to whether, based on the facts of existed to grant the injunction. record, See id. reasonable grounds We may independently review the record to determine whether sufficient evidentiary grounds exist to sustain the court commissioner's exercise of discretion. or circuit court See State v. Dumler, 2003 WI 62, ¶11, 262 Wis. 2d 292, 664 N.W.2d 525. 8 Wisconsin Stat. § 813.122(5)(a) was cited in another case before this court in State v. O'Dell, 193 Wis. 2d 333, 343-44, 532 N.W.2d 741 (1995), which concerned the effect of a circuit court judge's oral statements on the terms of a written injunction under Wis. Stat. § 813.122(5)(a). However, the substantive provisions of § 813.122 were not addressed in O'Dell. 12 No. 2005AP1034 III ¶23 The child abuse restraining orders and injunctions statute, Wis. Stat. § 813.122, provides that a child victim, or a parent, stepparent or legal guardian of the child victim, may initiate an contact with action a for child an by filing circuit court commissioner. may grant the injunction injunction a restricting petition with a a party's court § 813.122(2) and (6)(a). "if . . . [a]fter [a] or A judge hearing, the judge finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and the respondent may engage in, abuse of the child victim." § 813.122(5)(a)3.9 9 Wisconsin Stat. § 813.122(5)(a) provides, in full: A judge may grant an injunction ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, and to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents to that contact in writing and the judge agrees that the contact is in the best interests of the child victim, if all of the following occur: 1. The petitioner files a petition alleging the elements set forth under sub. (6)(a). 2. The petitioner serves upon the respondent a copy of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction. 3. After hearing, the judge finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and 13 No. ¶24 2005AP1034 For purposes of Wis. Stat. § 813.122, the word "abuse" has the meaning given in the Children's Code, Chapter 48 of the Wisconsin Statutes. Wis. Stat. § 813.122(1)(a). "Abuse" as defined by Wis. Stat. § 48.02(1)(a) includes "[p]hysical injury inflicted on a child by other than accidental means."10 48 defines "physical injury" as "includ[ing] but limited to lacerations, fractured bones, Chapter . . . burns, not internal injuries, severe or frequent bruising or great bodily harm, as defined in s. 939.22(14)." § 48.02(14g). The Children's Code contains a statement of legislative purpose which directs that Chapter 48 following "shall express be liberally legislative construed purposes," to effectuate which include the "[t]o recognize that children have certain basic needs which must be provided for, including . . . the physical . . . injury." ¶25 need to be free from Wis. Stat. § 48.01(1)(ag). Dennis contends that reasonable grounds did not exist to support the circuit court's order granting the motion for an injunction because the bruises on J.K.M.'s head were not, as a matter of law, "severe bruis[es]" Wis. Stat. § 48.02(1) and (14g). appeals, in affirming the respondent victim. may the constituting 10 under Dennis argues the court of circuit engage "abuse" in, court's abuse of the injunction, child Other forms of abuse defined in Wis. Stat. § 48.02(1)(a)(gm) are not pertinent to this matter and will not be described here. 14 No. 2005AP1034 erroneously construed "severe bruising" to include any bruise, no matter its severity. ¶26 Kristi exercised its responds discretion that the because circuit the court were bruises properly "severe," constituting abuse under Wis. Stat. § 48.02(1) and (14g), taking into account that the bruises were to the child's head, the child's age and vulnerability, bruises were caused. Counsel contends "severe" for and the manner in which the Likewise, amicus Dodge County Corporation that purposes the of question the of child whether abuse a bruise injunction is statute should not be limited to the appearance of the bruise, but may include the location of the bruising, the child's stage of development, and the means by which the alleged abuser caused the bruise. ¶27 We reasonable conclude grounds that existed the to record justify demonstrates the circuit that court's exercise of discretion in granting the injunction as to J.K.M. on its reasonable belief that Dennis either engaged in abuse or may engage in abuse of J.K.M. based on Dennis's prior conduct, including but not limited to the severity of J.K.M.'s bruising. ¶28 with Our analysis of the circuit court's decision begins the court's determinations. factual findings and See M.Q., 152 Wis. 2d at 708. credibility Judge Callaway's oral ruling indicates he found Kristi to be a more credible witness than Dennis. The judge disbelieved Dennis's testimony that he called Kristi about the murder-suicide in Montello "just to see if [Kristi] had heard about it." 15 The judge concluded: No. 2005AP1034 "I see no reason why [Dennis] would call his wife and ask her if have you heard about the fellow in Montello that killed his child and himself. ¶29 There's no reason to bring that up." The judge was skeptical of Dennis's explanation for the cause of J.K.M.'s bruises, stating that the bruises were "really not something." consistent with hitting your head against This statement also indicates the judge believed Dr. Greenbaum's testimony about the suspicious nature of the bruising and gave her testimony significant weight. See Adams Outdoor Advertising, Ltd. v. City of Madison, 2006 WI 104, ¶27, 294 Wis. 2d 441, 717 N.W.2d 803 ("The weight and credibility to be given to the opinions of expert witnesses is 'uniquely within the province of the fact finder.'") (citation omitted). Greenbaum testified that the bruises to J.K.M.'s head Dr. were suspicious for abuse because they were inconsistent with the bruising one would normally see on an 11-month old child. noted that a child of that age is a "pre-cruiser" who can't get themselves into trouble, can't generate that much force and can't move fast. Once in a while you see one bruise or perhaps two but to see four . . . is somewhat unusual and it's very unusual to see them clustered in one area over the scalp with absolutely no explanation from the caretaker. I asked the mother about [J.K.M. falling against] the entertainment center. . . . I would expect that the child is would have to either be crawling into it or standing and then fall and bump against it, either, which it's a very minor trauma, very low velocity. At most, I would expect to see a single bruise, probably on the forehead. . . . Certainly you wouldn't expect to see a cluster of three individual bruises. . . . 16 She No. 2005AP1034 Dr. Greenbaum testified that the bruises were consistent with markings caused by fingers or knuckles pressing on the child's skull. ¶30 We must determine whether, on these factual findings and credibility determinations of the circuit court, reasonable grounds exist "severe" to conclude constituting that the abuse within Wis. Stat. § 48.02(1) and (14g). evidence contained in the bruises to the J.K.M. were meaning of We note that the photographic record (the same photographs upon which Dr. Greenbaum based her opinion) does not show a high degree of bruising discoloration was or "severe." other We visual indicators therefore conclude that that the the appearance of the bruising alone does not provide a sufficient basis on which constituting to conclude that within the "abuse" the bruising meaning of was "severe" the relevant statutes. ¶31 Nevertheless, circumstances Kristi surrounding the and amicus bruise are contend also that relevant the to whether bruising may be "severe" for purposes of the child abuse injunction statute. The meaning and scope of the phrase "severe bruising" is a matter of statutory interpretation subject to our independent review. Landwehr v. Landwehr, 2006 WI 64, ¶9, 291 Wis. 2d 49, 715 N.W.2d 180. ¶32 Bruising is the only category of injury enumerated in Wis. Stat. § 48.02(14g) that must be "severe" or "frequent" to constitute abuse. See § 48.02(14g). The Children's Code does not define what may constitute "severe bruising." 17 No. ¶33 We bruising" conclude that that includes an interpretation consideration of 2005AP1034 of the "severe circumstances surrounding the physical injury is reasonable and is consistent with the legislature's directive to "liberally construe" Chapter 48 to effectuate "recogniz[ing] its that legislative children have free from physical . . . injury." ¶34 purposes, which [a] . . . basic include need to be Wis. Stat. § 48.01(1)(ag). We further conclude on the factual findings of the circuit court that J.K.M.'s bruises were "severe" based on the combination location of of the the following bruising, factors: on the (1) child's the sensitive skull; (2) the vulnerability of a child of J.K.M.'s age; and (3) the means by which the court determined the bruises were created, by an adult hand pressing on the child's skull. that the bruising to J.K.M.'s Accordingly, we conclude head was "severe bruising" constituting "abuse" within the meaning of Wis. Stat. § 48.02(1) and (14g) and providing reasonable grounds for the circuit court's injunction order. ¶35 Callaway cumulative In addition explained aspect to that of the he the evidence was also evidence." of bruising, "concerned We agree Judge about the that the "cumulative aspect" of a variety of evidence regarding Dennis's past conduct provides reasonable grounds to conclude that Dennis may engage in abuse of J.K.M. Dennis admitted calling to tell Kristi about the Montello man who killed himself and his son. As noted, the circuit court found incredible Dennis's testimony that he called just to find out if she had heard about the 18 No. story. 2005AP1034 Kristi's testimony indicated Dennis became "very quiet" when he told her about it and that he "started crying." ¶36 Dr. Haight, Dennis's psychologist, testified about Dennis's past struggles with suicidal thoughts and the increased risk of harm Dennis would pose to himself and others if he were to go off of his medication. Dennis testified that, before December 2004, he took his medication only "sporadically," and that he would "take [himself] off the medicine" if he started to "feel good." "[couldn't] Significantly, answer" whether Dennis he might told take the court he himself off his medication again in the future.11 ¶37 that the Kristi testified that J.M. said Dennis had told him entire family was "going to die." Kristi also testified that Dennis said he considered hanging himself in the basement laundry while he was supervising J.M. and J.K.M. ¶38 Dennis denied that these events occurred, and Judge Callaway did not make explicit findings with regard to these allegations. However, some of Judge Callaway's explicit findings indicate that he found Kristi to be a more credible 11 The fact that Dennis has been prescribed medication is not relevant to whether reasonable grounds exist for a child abuse injunction. Many persons are prescribed medication to address mental health issues, and this reality has no bearing on whether they are a threat to engage in abuse of their children. What is relevant to the grounds for an injunction in this case is Dennis's demonstrated history of "taking himself off" of prescribed medication; his near admission that he might do so in the future; and expert testimony of his psychologist that, without the medication, he would be more likely to harm himself and others. 19 No. witness than Dennis. 2005AP1034 Kristi's testimony regarding these matters therefore supports the circuit court's exercise of discretion, although we ascribe less significance to this testimony than to the court's explicit findings. See State v. Davidson, 2000 WI 91, ¶53, 236 Wis. 2d 537, 613 N.W.2d 606 (an appellate court may independently review the record to ascertain a reasonable basis for a trial court's discretionary decision). ¶39 We agree with Judge Callaway's observation that this is a close case. And although no such allegation has been made in this case, we share Judge Dykman's concerns about child abuse injunctions being brought on questionable evidence to gain an advantage in subsequent custody proceedings. However, we conclude that the evidence as found by the circuit court in this case provided a sufficient basis to grant the motion for an injunction on the grounds that Dennis engaged in abuse and may engage in abuse of J.K.M. under Wis. Stat. § 813.122(5)(a)3. therefore affirm the circuit court's injunction order as We a proper exercise of its discretion. IV ¶40 In summary, we conclude that the circuit court acted within its discretion in issuing the injunction as to J.K.M. because Dennis's prior conduct, including the bruising of J.K.M., gave the circuit court reasonable grounds to believe that Dennis engaged in abuse and may engage in abuse of J.K.M. We therefore affirm the summary order of the court of appeals. By the Court. The decision affirmed. 20 of the Court of Appeals is No. 1 2005AP1034
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