Rock County Human Services Department v. T. S.

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COURT OF APPEALS DECISION DATED AND FILED
October 15, 2026 Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Appeal Nos. 2026AP1628 2026AP1629 STATE OF WISCONSIN
Cir. Ct. Nos. 2024TP26 2024TP46
IN COURT OF APPEALS DISTRICT IV
NO. 2026AP1628 IN RE THE TERMINATION OF PARENTAL RIGHTS TO T.S., A PERSON UNDER THE AGE OF 18:
ROCK COUNTY HUMAN SERVICES DEPARTMENT,
PETITIONER-RESPONDENT,
V.
T.S.,
RESPONDENT-APPELLANT.
NO. 2026AP1629
IN RE THE TERMINATION OF PARENTAL RIGHTS TO T.S., A PERSON UNDER THE AGE OF 18:
ROCK COUNTY HUMAN SERVICES DEPARTMENT,
PETITIONER-RESPONDENT,
V.

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T.S.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Rock County:
MICHAEL A. HAAKENSON, Judge. Affirmed.
¶1 NASHOLD, J.1 T.S. appeals the termination of his parental rights
to his two children. He raises three issues. He argues that the circuit court was
objectively biased against him due to the court’s representation of T.S. in a
criminal case approximately 13 years prior to the termination of parental rights
(“TPR”) trial. T.S. further contends that, during the grounds phase, the court erred
by permitting testimony about T.S.’s emergency detention under WIS. STAT.
ch. 51 approximately seven years before the TPR trial. Finally, T.S. asserts that
the court should have declared a mistrial after the jury heard a reference to a prior
TPR proceeding against him; the court instead ordered the testimony stricken and
instructed the jury to disregard it. Because I conclude that none of the claimed
errors merit reversal, I affirm.
BACKGROUND
¶2 The County removed T.S.’s children from his care in March 2017.
In July of that year, the circuit court entered orders that the children were in need
1 These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-
24). All references to the Wisconsin Statutes are to the 2023-24 version.
These appeals were consolidated for briefing and disposition by an order dated July 23,
2026. See WIS. STAT. RULE 809.10(3).

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of protection and services (“CHIPS” orders). Both children remained placed
outside of T.S.’s home through the pendency of these cases.
¶3 In July and November 2024, Rock County filed petitions to
terminate T.S.’s rights to the children. As pertinent here, the petitions alleged two
grounds as to each child: continuing CHIPS under WIS. STAT. § 48.415(2) and
failure to assume parental responsibility under § 48.415(6).2
¶4 Trial was set for August 2025. A few months before the scheduled
trial, the County filed a document stating that it had learned that in 2012, the
circuit court represented T.S. in a criminal case. The County requested a hearing
to address the matter.
¶5 At the resulting hearing, the circuit court stated for the record that it
was looking at Wisconsin’s Consolidated Court Automation Programs (“CCAP”)
record for the criminal case, and that CCAP confirmed that the court had
represented T.S. The court stated that it had not been aware of the previous
representation when these TPR cases had been assigned to the court. The criminal
case had been charged as two counts of child abuse intentionally causing bodily
harm. During the court’s representation of T.S., T.S. pleaded to reduced charges:
one count of misdemeanor battery and one count of disorderly conduct. Looking
at the criminal complaint, the court said that it did not know if the victim in the
criminal case, who was referred to by initials, was one of the children subject to
2 A third ground was also alleged as to each child—continuing parental disability under
WIS. STAT. § 48.415(3)—but that ground was dismissed before trial and is therefore not discussed
further here.

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the TPR cases. The County informed the court that the victim was a different
child who had since become an adult.
¶6 T.S. requested that the circuit court recuse itself, noting that the
County intended to introduce evidence related to the criminal case. Questioned
about this, the County said that this was “no longer true” and that it “[would] not
introduce anything from that 2011 case.”
¶7 The circuit court denied the recusal request. It cited WIS. STAT.
§ 757.19, which governs disqualification of judges. Noting that it had none of the
interests or relationships listed in the statute as requiring disqualification, the court
focused on § 757.19(2)(g), which disqualifies a judge when the “judge determines
that, for any reason, [the judge] cannot, or it appears [the judge] cannot, act in an
impartial manner.” The court stated that it believed it could act impartially and
that its presiding over the cases would not create an appearance of bias. The court
stated that it had presided over CHIPS cases involving T.S. and T.S.’s children in
the years since the criminal representation, and that these cases were the reason it
was familiar with T.S. It stated, “I have no recollection of representing [T.S.] in
the felony case. CCAP indicated I did, but I have no recollection as to what the
charges were, what the allegations were, it is a surprise for me.”
¶8 On the morning of the first day of trial, the circuit court revisited the
issue. In addition to WIS. STAT. § 757.19, the court discussed the commentary to
Supreme Court Rule 60.04, which requires recusal “when reasonable, well-
informed persons knowledgeable about judicial ethics standards and the justice
system and aware of the facts and circumstances the judge knows or reasonably
should know would reasonably question the judge’s ability to be impartial.”
SCR 60.04(4). The court observed that it had represented T.S. beginning in

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February 2012 and concluding in June 2012. The court reiterated that it had “no
recollection of my prior representation of [T.S].” The court said that, because of
its prior criminal defense work, it had routinely performed checks for conflicts in
criminal cases it was assigned, but had not done so in the CHIPS cases involving
T.S. and his children, over which it had presided since 2018. Despite the CHIPS
cases having involved “pretty intensive hearings,” the court said that it had not,
during its involvement in those cases, ever realized that it had previously
represented T.S. The court stated that, other than checking CCAP so that it could
accurately understand its prior representation, it had not looked at any files related
to the prior criminal case. The court reiterated its conclusion that it could be fair
and impartial and that it would therefore remain on the cases.
¶9 On the first day of trial, the County called a former employee of the
corporate guardian assigned to T.S., who has been under guardianship and
protective placement orders since 2018. This opinion will refer to the employee as
T.S.’s “guardian.” The guardian testified that the guardianship was established for
T.S. “due to a neurodegenerative disorder as well as some mental health issues.”
¶10 The guardian testified as follows about her interactions with and
observations of T.S. from 2018 to 2024, when she left her position with the
corporate guardian. She first met T.S. in July 2018, when T.S. was living in a
facility the guardian described as a “stabilization unit that’s often used for
individuals who are coming out of higher level inpatient psych units or having
some psychiatric instability in the community.” T.S. left this facility against
medical advice, and within a day was admitted to a local hospital.
¶11 Within a day of leaving the hospital, T.S. was detained on an
emergency basis under WIS. STAT. ch. 51. The guardian had been present at the

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emergency detention hearing held under WIS. STAT. §§ 51.15 and 51.20(7). Asked
about the nature of the hearing, the guardian testified that such hearings are
conducted “[w]hen somebody is either determined to be a risk to themselves, to
someone else, or completely incapable of taking care of themselves.” T.S.
objected that testimony about the ch. 51 proceeding was “other act[s]” evidence
that had not been included in the County’s pretrial filing describing any such acts
it intended to offer, and also that the proceeding had not been mentioned in the
County’s response to interrogatories about the subject of each witness’s proposed
testimony. Later, T.S. also argued that the guardian’s testimony about the court
proceeding would be hearsay.
¶12 The circuit court sustained T.S.’s objections in part, determining that
the guardian could testify about the fact that the hearing had occurred and about its
result, but “I don’t want to hear you say this is what the officer said or anything
like that.” The guardian then testified as follows. An emergency detention
hearing “is held within 72 hours of someone being detained for their safety, or
someone else’s safety, to determine if the grounds exist for them to have to
continue to be detained or they have to be discharged.” The result of T.S.’s
hearing was that the WIS. STAT. ch. 51 proceeding had been converted to a
guardianship and protective placement hearing. See WIS. STAT. § 51.67
(authorizing such conversions). This “means they felt that it was not necessarily
related to a severe and persistent mental illness, but that it was more appropriately
related to a diagnosis that would be better served under a guardianship such as a
neurodegenerative disorder.”
¶13 The guardian understood a protective placement to mean “that
somebody has a primary need for residential care and custody and is best served
by a supervised setting.” As a result of the protective placement proceedings, T.S.

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was placed in a group home. While at that home, T.S. would “intermittently”
refuse any prescribed medications, including insulin for his diabetes. T.S. moved
to an assisted living facility in 2021, and while T.S. was in this facility, the
guardian could recall three occasions when T.S. was intoxicated while the
guardian was present. The guardian could smell alcohol on T.S.’s breath, and T.S.
had marijuana in his room. Eventually, the assisted living facility gave notice that
it could no longer meet T.S.’s needs, and he had to be placed elsewhere.
¶14 The County also called a former case manager for T.S. The case
manager’s testimony included a description of a period during the COVID-19
pandemic when the children at issue in these cases were living with a foster family
in Virginia. She testified that the County had decided to have the case manager
“continue working with the family so that I could continue trying to support the
placement and maintain their placement in Virginia because at that time there was
a pending trial coming up for the children -- termination of parental rights [for
T.S.]” T.S.’s counsel requested a sidebar or to remove the jury from the
courtroom; counsel for the County stated that she was “fine with moving on.” The
following exchange between the court and T.S.’s counsel then occurred with the
jury still present:
[COUNSEL]: Well, then I’d ask to strike the last comment.
THE COURT: I’ll strike the last comment regarding --
[COUNSEL]: The TPR trial.
THE COURT: TPR trial. All right. I’ll strike that comment.
¶15 Later, when the jury had left the courtroom for a break, T.S. moved
for a mistrial. Counsel for T.S. noted that, although he had tried to avoid drawing

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attention to the case manager’s mention of a previous TPR proceeding, the
subsequent conversation had resulted in the jury hearing multiple references to a
prior TPR case or trial. T.S. argued that the potential for unfair prejudice was high
and was unlikely to be cured by a jury instruction, saying the mention of the prior
TPR proceeding “might be a bell that can’t be unrung.” Counsel for T.S. also
stated that he had seen several jurors writing notes immediately after the prior
TPR proceeding was mentioned. The circuit court determined that any unfair
prejudice would be cured by giving the jury the standard instruction to disregard
stricken testimony. The jury was ultimately given this instruction.
¶16 The jury found both TPR grounds proved as to each child. After a
dispositional hearing, the circuit court terminated T.S.’s parental rights to both
children. T.S. appeals.
DISCUSSION
¶17 In Wisconsin, there is a “two-part statutory procedure” for a TPR
proceeding. Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d
856. In the first phase, which is the factfinding or “grounds” phase, the petitioner
(here, the County) must prove the existence of “one or more of the statutorily
enumerated grounds for termination of parental rights” by clear and convincing
evidence. Id.; WIS. STAT. § 48.31(1). If such grounds are found to exist, the
circuit court then proceeds to the second phase, the “dispositional” phase, in which
the court decides whether it is in the best interests of the child or children that the
parent’s rights be terminated. Steven V., 271 Wis. 2d 1, ¶27; WIS. STAT.
§ 48.426(2). Two of T.S.’s three claims relate only to the grounds phase. His
judicial bias claim implicates both phases, because the circuit court both presided
over the jury trial at the grounds phase and served as the decisionmaker in the

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dispositional phase; however, T.S.’s argument on this claim focuses on the
grounds phase as well. This opinion will address each claim in the order T.S. has
presented them.
I. Judicial bias
¶18 T.S. argues that the circuit court judge was obligated to recuse
himself because of his previous representation of T.S. in a criminal case. An
impartial judge is a fundamental component of due process, and if a party is able
to demonstrate bias, the error is structural and thus not subject to a harmless error
analysis. Miller v. Carroll, 2020 WI 56, ¶¶15-16, 392 Wis. 2d 49, 944 N.W.2d
542. Judges are presumed to act impartially, and the party asserting bias must
overcome this presumption by a preponderance of the evidence. Id., ¶16.
¶19 Wisconsin courts take both a subjective and an objective approach in
evaluating whether a judge is biased. Id., ¶21. While subjective bias “is not at
issue” if the court believes itself to be fair and impartial, objective bias—actual
bias or a serious risk of actual bias or prejudgment—depends on the perception of
an objective and reasonable observer. Id., ¶21-22. Here, the circuit court judge
determined that he was able to remain impartial, and T.S. does not raise a claim of
subjective bias. Rather, T.S. argues that the circumstances demonstrate objective
bias.
¶20 To assess whether the probability of bias rises to the level of a due
process violation, Wisconsin courts apply the standard from Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 884 (2009). Miller, 392 Wis. 2d 49, ¶24. That is
whether there is “a serious risk of actual bias—based on objective and reasonable
perceptions.” Caperton, 556 U.S. at 884. “Due process requires an objective
inquiry” into whether the circumstances “‘would offer a possible temptation to the

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average ... judge to ... lead [the judge] not to hold the balance nice, clear and
true.’” Id. at 885 (omissions in original) (quoting Tumey v. Ohio, 273 U.S. 510,
532 (1927)). It is the exceptional case with “extreme facts” that rises to the level
of a “serious risk of actual bias.” Id. at 884, 886-87. “[M]ost matters relating to
judicial disqualification [do] not rise to a constitutional level.” Id. at 876 (second
alteration in original; quoted source omitted).
¶21 T.S. argues that here, the circuit court judge “possessed confidential
information related to [T.S.]’s character and fitness as a parent such that it created
the appearance of bias.” T.S. observes that in representing a client charged with
physical abuse of a child, and in negotiating a plea to lesser charges, an attorney
will learn information from and about the client that is confidential. T.S. implies
that information the judge gathered about T.S. during the representation may have
included information that would make it unacceptably likely that the judge could
not be impartial toward T.S.
¶22 A fundamental problem with this argument is that the circuit court
consistently asserted that it had no recollection of representing T.S., nor of the
case in which it represented him. This is a finding of fact, and this court must
sustain it if it is not clearly erroneous. Dickman v. Vollmer, 2007 WI App 141,
¶14, 303 Wis. 2d 241, 736 N.W.2d 202. Although T.S. suggests that the court’s
viewing of the criminal complaint and CCAP docket must have jogged the court’s
memory, the court stated otherwise. T.S. points to no evidence gainsaying the
court’s finding that it lacked recollection of briefly representing T.S. 13 years
earlier. This defeats T.S.’s argument that the court “possessed confidential
information related to [T.S.]’s character and fitness as a parent”—the court found
that it had no such information.

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¶23 T.S. anticipates this problem, arguing that the circuit court’s own
assessment of objective bias is not entitled to deference. This is true in the sense
that the ultimate question of objective bias is subject to de novo review. Miller,
392 Wis. 2d 49, ¶15. But T.S. cites no authority for the proposition he advances:
that a circuit court’s determination of the underlying facts relevant to an objective-
bias claim—in this case, the court’s determination that it did not remember
anything about its representation of T.S.—is also subject to de novo review.
¶24 T.S. next seeks to support his judicial bias claim by analogizing to
the Rules of Professional Conduct for Attorneys. He cites the rule forbidding an
attorney from representing a party with interests materially adverse to those of a
former client in “the same or a substantially related matter” that the attorney
represented the former client. See SCR 20:1.9(a). T.S. argues that the criminal
case in which the circuit court judge previously represented him is “substantially
related” to these TPR cases because the child-abuse charges, although they
concerned a different child, resulted in the removal from T.S.’s home of the
children at issue here. T.S. notes as well that, although the County did not
introduce evidence about the criminal case, it did elicit testimony referring to the
underlying facts of that case; that is, the County elicited testimony that the 2011
removal of the children at issue in these cases was precipitated by concerns about
physical abuse of a different child.
¶25 T.S. argues that the reasoning adopted in cases about adverse-party
representation should logically apply when a court presides over a case involving a
former client. See, e.g., Berg v. Marine Tr. Co., N.A., 141 Wis. 2d 878, 889-90,
416 N.W.2d 643 (Ct. App. 1987) (discussing what it means for matters to be
“substantially related”).

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¶26 Leaving aside the merits of T.S.’s argument about what the law
should be, this court is not free to depart from the analysis for judicial bias laid out
in Miller and Caperton. This analysis, described above, does not incorporate the
rubric for assessing an attorney’s responsibility to former clients. Further, even
ignoring that the professional rule T.S. cites governs an attorney’s representation
of clients rather than a judge’s presiding over a case, Caperton expressly states
that judicial bias, in a due-process sense, is not controlled by legislative judicial
disqualification rules. Caperton, 556 U.S. at 876 (“‘most matters relating to
judicial disqualification do not rise to a constitutional level,’” and “‘matters of
kinship, personal bias, state policy, [and] remoteness of interest[] would seem
generally to be matters merely of legislative discretion’” (first alteration in
original, quoted sources omitted)). Still less, then, would the due process inquiry
be controlled by attorney disqualification rules.
¶27 T.S. also argues that the circuit court itself “acknowledged the
appearance of bias.” This argument, though, relies on taking a single statement by
the court out of context. At the hearing held in response to the County’s alerting
the court of its prior representation of T.S., the court began its discussion of the
potential appearance of bias by saying, “I can certainly understand why somebody
might be concerned about it.” But the court then went on to say that, considering
the court’s entire history with T.S., “if people took that into account,” they would
not think the court was biased. As the court elsewhere noted, its history with T.S.
included a 13-year gap between the representation and the TPR trial, and its
extensive involvement with T.S.’s CHIPS cases over the course of many years,
which never caused the court to recall the representation.
¶28 In sum, I conclude that T.S. has not demonstrated that the court was
objectively biased in contravention of due process.

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II. Evidence about the 2018 emergency detention hearing
¶29 T.S. argues that the guardian’s testimony about the 2018 emergency
detention hearing under WIS. STAT. ch. 51—which resulted in a conversion to a
guardianship and protective placement case—was erroneously admitted and
prejudicial to him. As he did in the circuit court, T.S. contends on appeal that this
testimony was inadmissible hearsay, and further that the County violated the
court’s pretrial orders by failing to include the 2018 hearing, either in response to
interrogatories about the subject of each witness’s proposed testimony or in its
filing detailing any “other acts” evidence it intended to present. I conclude that
the testimony was not hearsay or “other acts” evidence, and further conclude that
if it was (or if, as I assume without deciding, that it was elicited contrary to pretrial
orders), any error in admitting this testimony was harmless.
¶30 On the first point, T.S. does not offer any argument that the
guardian’s testimony was hearsay; he simply asserts that it “undoubtedly” was. I
could reject T.S.’s contention for the lack of a developed argument alone, but it is
worth observing that, to be hearsay, evidence must comprise a “statement” not
made by the declarant while testifying that is offered “to prove the truth of the
matter asserted.” WIS. STAT. § 908.01(3). It is not clear what out-of-court
statements T.S. believes the guardian’s testimony communicated, nor whether
those statements were offered for their truth. The guardian’s descriptions of what
an emergency detention hearing is, or her report that T.S.’s hearing resulted in
conversion to a guardianship and protective placement case, or her description of
what those terms implicate, do not necessarily communicate any out-of-court
statements offered for their truth. As appellant, it is T.S.’s obligation to show that
the circuit court erroneously exercised its discretion in permitting the guardian to
testify to these matters; for example, by applying an incorrect view of the law. See

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State v. Tarlo, 2016 WI App 81, ¶6, 372 Wis. 2d 333, 887 N.W.2d 898. In the
absence of any identified out-of-court statements relayed to the jury, or any
argument that these statements were offered for their truth and thus potentially
hearsay, I conclude that T.S. has not demonstrated an erroneous exercise of
discretion.
¶31 Regarding his assertion that the County should have identified the
testimony about the 2018 hearing as “other acts” evidence, again, T.S. does not
contend with the meaning of that phrase. What is sometimes called “other acts”
evidence is defined as “evidence of other crimes, wrongs, or acts” and is generally
“not admissible to prove the character of a person in order to show that the person
acted in conformity therewith.” WIS. STAT. § 904.04(2)(a). T.S. identifies no
“crimes, wrongs, or acts” that the guardian’s testimony attributed to him regarding
the 2018 hearing. It is true that the events leading up to and bringing about the
2018 hearing included acts by T.S., such as leaving the stabilization unit against
medical advice and also leaving the hospital. But T.S. has not challenged on
appeal the guardian’s testimony about these events, or the circuit court’s rulings
allowing the testimony. Once again, it is T.S.’s burden to show that the court’s
evidentiary rulings fell outside the range of reasonable discretionary decisions.
See Kennedy v. WEC, 2024 WI 37, 413 Wis. 2d 509, 11 N.W.3d 786. Without
showing how the emergency detention hearing plausibly constituted a crime,
wrong, or act by T.S., or how evidence about that hearing was used to prove his
character in order to show that he acted in conformity with that character, T.S.
cannot show that the court erroneously exercised its discretion in admitting the
evidence.
¶32 Finally, regarding the argument that the County ought to have
identified the 2018 hearing as a subject of the guardian’s testimony in response to

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interrogatories, I will assume without deciding that T.S. is correct, and further that
the circuit court should have excluded the testimony on this basis. With these
assumptions, I nevertheless conclude that the introduction of this evidence—
which, again, was evidence not about anything T.S. did, but about the resultant
court proceedings—was harmless beyond a reasonable doubt under WIS. STAT.
§ 805.18.
¶33 T.S. contends that he was prejudiced by the guardian’s testimony
because it undermined his theory of defense: that the County failed to provide him
the services that would permit him to parent his children appropriately. He argues
that the testimony about the 2018 hearing undermined this defense by portraying
him as too dangerous to parent. But the jury was repeatedly informed, without
objection, that T.S. was subject to both the guardianship and protective placement
orders that resulted from the 2018 proceeding, and was also told the facts about
T.S.’s condition that supplied the basis for those orders. What is more, T.S.
stipulated to the jury hearing about a second emergency detention proceeding
under WIS. STAT. ch. 51. This occurred in 2022, and was a response to T.S.’s
threatening to stab a caregiver and overdose on his medication. In light of the
jury’s unchallenged exposure to substantial evidence about T.S.’s neurocognitive
condition, as well as his more recent ch. 51 proceedings, I conclude there is no
reasonable probability that the guardian’s testimony about the bare procedural
facts of the 2018 hearing influenced the jury verdicts. See State v. Kleser, 2010
WI 88, ¶94, 328 Wis. 2d 42, 786 N.W.2d 144 (error is harmless if there is no
reasonable probability of a different outcome absent the error).

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III. The reference to a previous TPR proceeding
¶34 T.S. argues that the circuit court should have granted his motion for
mistrial after the County case manager mentioned that there had been, during the
COVID-19 pandemic, a “pending trial coming up for the children -- termination of
parental rights.” He argues that this testimony was both irrelevant and prejudicial.
¶35 The decision whether to grant a motion for a mistrial lies within the
sound discretion of the circuit court. State v. Pankow, 144 Wis. 2d 23, 47, 422
N.W.2d 913 (Ct. App. 1988). That court must determine, in light of the whole
proceeding, whether the basis for the mistrial request is sufficiently prejudicial to
warrant a new trial. Id. “[N]ot all errors warrant a mistrial and ‘the law prefers
less drastic alternatives, if available and practical.’” State v. Givens, 217 Wis. 2d
180, 191, 580 N.W.2d 340 (Ct. App. 1998) (quoted source omitted). An appellate
court must give the circuit court’s decision on this question “great deference.”
State v. Williams, 2004 WI App 56, ¶28, 270 Wis. 2d 761, 677 N.W.2d 691.
¶36 When T.S. moved for mistrial, the circuit court recited the correct
standard for a mistrial just noted. It remarked that the comment about the prior
TPR proceeding “could certainly be viewed as prejudicial,” though in the court’s
view, it was not clear who would be prejudiced: T.S. because the jury might
conclude there had been reason to terminate his rights previously, or the County
because the jury might conclude that “the [County] didn’t do what they needed to
do the first time; they’re still not doing what they need to do,” which would be
consistent with T.S.’s theory of defense. The court stated that it had considered
allowing further questioning or a stipulation to develop more facts about the prior
case in order to give the jury an accurate understanding of what had occurred, but
rejected those options as unlikely to be “effective.” It noted T.S.’s concern that

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jurors had taken notes after the case worker’s answer, but it observed that the jury
had not, at that point, been instructed about stricken testimony, and thus might not
have known as they were taking notes that they were not to consider the answer in
their deliberations. The court stated that with the possible exception of one juror,
the jury had been attentive, and that based upon its interactions during the trial and
voir dire, it thought the jury was “taking this very seriously, and I think they will
take the instructions seriously as well.”
¶37 The circuit court described the reference to an earlier TPR
proceeding as “minimal in the sense of the entirety of the testimony that we’ve
heard. It was a brief comment.” The court noted that the case manager’s
comment had not been a direct response to the County’s question, but rather had
“flowed out.” The court determined that the instruction on stricken testimony
would be sufficient to cure any potential prejudice and denied the mistrial motion.
¶38 T.S. urges that these cases are similar to State v. Castillo,
No. 2020AP983-CR, unpublished slip op. (WI App June 29, 2021), in which this
court reversed a circuit court determination that a jury instruction, rather than a
mistrial, would remedy a witness’s volunteering of inadmissible testimony. This
court concluded that the testimony in Castillo was an “evidentiary bell” that
“could not be unrung.” Id., ¶3. This “bell” consisted of a statement by the eight-
year-old victim of Castillo’s alleged sexual assault who volunteered that “[h]e did
it to three other little girls,” and another witness’s answer that suggested that
Castillo was already incarcerated for a sexual assault. Id., ¶¶45-46.
¶39 The case worker’s mention of a prior TPR proceeding is not
comparable, in terms of prejudice, to the statements in Castillo. That case
amounted to a credibility contest between Castillo and the alleged victim about

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whether the assault had occurred; the allegation that he had assaulted three other
little girls, and the implication that he was imprisoned for these crimes, were
shocking and obviously bolstered the credibility of the accusations. Id., ¶¶56-58.
In contrast, the fact that the County had once before initiated TPR proceedings
against T.S. involving these same children, while potentially prejudicial, does not
carry nearly the same impact. Given that the jury was assembled to decide a TPR
case also involving T.S. and the same children, it was clear that T.S.’s parental
rights had not, in fact, been terminated in that earlier proceeding. Although there
could have been many reasons for this outcome, there is nothing about the
County’s earlier failed or abandoned attempt to terminate T.S.’s parental rights
that is nearly as inflammatory as the little girl’s accusation about other victims,
apparently confirmed by the implication of incarceration, that this court addressed
in Castillo.
¶40 T.S. does not argue that the circuit court’s explanation of its decision
failed to consider the relevant facts or apply the proper law, or that it was
otherwise not a proper exercise of discretion. See Tarlo, 372 Wis. 2d 333, ¶6. His
only other argument is that, given the number of times the court ordered testimony
stricken over the course of the trial, and the ambiguity of some of those instances,
the jury could not be trusted to recall, or perhaps to understand, that it was
required to disregard this particular testimony. While this argument is not without
some force, this court is obligated to presume that the jury followed the
instructions it was given. State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432
(Ct. App. 1989). T.S. has not persuaded me that the surrounding context of the
rest of the trial is sufficient to overcome this presumption. Given the “great
deference” this court owes to a circuit court’s mistrial decisions, I conclude that

Nos. 2026AP1628
2026AP1629
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T.S. has not shown that the court erroneously exercised its discretion in denying
T.S.’s motion for a mistrial.
CONCLUSION
¶41 The orders terminating T.S.’s parental rights are affirmed.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.