Winnebago County DHS v. C. R. Q., II

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 17, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP81 Cir. Ct. No. 2022TP12

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.J.Q., A PERSON UNDER
THE AGE OF 18:

WINNEBAGO COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

C.R.Q., II,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Winnebago County:
BRYAN D. KEBERLEIN, Judge. Affirmed.
No. 2024AP81

¶1 GUNDRUM, P.J.1 C.R.Q, II, hereinafter referred to by the
pseudonym Craig Quentin, appeals from an order of the circuit court terminating
his parental rights to his daughter, Jamie.2 Quentin contends the circuit court
erroneously exercised its discretion in concluding termination was in Jamie’s best
interests. For the following reasons, we affirm.

Background

¶2 Jamie was born on August 26, 2019, to Quentin and K.G., who were
not married. Winnebago County Department of Health and Human Services
(Department) took temporary custody of Jamie and placed her outside her home
on November 5, 2019. The Department filed a petition alleging Jamie was a child
in need of protection or services, and on September 3, 2020, the circuit court
found Jamie to be a child in need of protection or services. The court set
conditions Quentin had to meet before Jamie could be returned home, which
Quentin failed to satisfy fully.

¶3 Quentin had been arrested the same date that Jamie was removed
from the home, and he remained incarcerated until March 15, 2021. After Quentin
was released, he began fully supervised visits with Jamie, which transitioned to
partially supervised visits in October 2021. Quentin was again arrested in
December 2021 and ordered to attend and complete AODA treatment. He was
admitted to a treatment facility on January 21, 2022, and was in treatment until
March 28, 2022, during which time he could not visit with Jamie in person, but he

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Jamie is also a pseudonym.

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No. 2024AP81

regularly spoke to her on the telephone, and the two had virtual visits. After his
discharge from treatment, Quentin again participated in fully supervised visits
with Jamie.

¶4 On July 21, 2022, the Department filed a petition to terminate
Quentin’s parental rights to Jamie.3 The petition alleged continuing need of
protection or services and failure to assume parental responsibility under WIS.
STAT. § 48.415(2) and (6). Quentin contested the petition. At the grounds hearing
in August 2023, a jury found the existence of the two grounds for termination
alleged in the petition: (1) Jamie was a child in need of protection or services, as
well as related essential findings, and (2) Quentin had failed to assume parental
responsibility for Jamie. The case then moved to the dispositional phase of
termination of parental rights (TPR) proceedings. The circuit court held a hearing
at which several witnesses, including Quentin, testified.

¶5 After reviewing the testimony and evidence, the circuit court
concluded that it was in the best interests of Jamie to terminate Quentin’s parental
rights. Quentin appeals.

Discussion

¶6 Quentin only takes issue with the second phase of TPR proceedings,
the dispositional phase. At the dispositional phase, “it is within the province of the
circuit court to determine where the best interests of the child lie, [however,] the
record should reflect adequate consideration of and weight to each factor” in WIS.

3
The petition also sought to terminate K.G.’s parental rights, but this appeal only
concerns Quentin.

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No. 2024AP81

STAT. § 48.426(3). State v. Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610
N.W.2d 475; see WIS. STAT. § 48.427; Dane Cnty. DHS v. Mable K., 2013 WI 28,
¶59, 346 Wis. 2d 396, 828 N.W.2d 198 (“[T]he best interests of the child” is the
“domina[nt]” and “paramount consideration” in the disposition phase of a
termination proceeding. (citation omitted)). “In considering the best interests of
the child … the court shall consider but not be limited to” the following:

(a) The likelihood of the child’s adoption after
termination.

(b) The age and health of the child, both at the time of
the disposition and, if applicable, at the time the child was
removed from the home.

(c) Whether the child has substantial relationships with
the parent or other family members, and whether it would
be harmful to the child to sever these relationships.

(d) The wishes of the child.

(e) The duration of the separation of the parent from the
child.

(f) Whether the child will be able to enter into a more
stable and permanent family relationship as a result of the
termination, taking into account the conditions of the
child’s current placement, the likelihood of future
placements and the results of prior placements.

Sec. 48.426(3).

¶7 We will affirm the circuit court’s decision to terminate parental
rights unless the court erroneously exercised its discretion. See Margaret H., 234
Wis. 2d 606, ¶27. “A circuit court properly exercises its discretion when it
examines the relevant facts, applies a proper standard of law, and using a
demonstrated rational process reaches a conclusion that a reasonable judge could
reach.” Mable K., 346 Wis. 2d 396, ¶39. “We look for reasons to sustain a

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No. 2024AP81

[circuit] court’s discretionary decision.” Farmers Auto. Ins. Ass’n v. Union Pac.
Ry. Co., 2009 WI 73, ¶32, 319 Wis. 2d 52, 768 N.W.2d 596.

¶8 Here, the circuit court discussed each of the factors set forth in WIS.
STAT. § 48.426(3), and, after weighing the evidence presented, determined that
terminating Quentin’s parental rights was in Jamie’s best interests. As the court
applied the correct standard of law and the evidence supported its decision, the
court did not erroneously exercise its discretion.

¶9 Quentin “concedes” that the circuit court considered all of the WIS.
STAT. § 48.426(3) factors in terminating his parental rights to Jamie. He
nonetheless asserts that “certain facts introduced before the circuit court led to
only one conclusion that a reasonable judge could make: that termination was not
in the best interests of [Jamie].”

¶10 The circuit court found that the likelihood of Jamie’s adoption, the
first factor, was “no doubt, based on the testimony, significantly high.” It noted
that there had been “a great deal of testimony about a past adoption of a half
maternal sibling of [Jamie], that the foster family has essentially lived in the same
stable residence, that they’re willing and able to adopt.” As the Department
explains in its appellate briefing, the testimony indicated Jamie had been in the
care of the same foster parents since she had been removed from the home—
almost her entire life—and the foster parents intended to adopt her, having already
adopted Jamie’s half-sibling.

¶11 As to the second factor, Jamie’s age and health at the time of
disposition and at the time of removal from the home, the court noted that Jamie
was four years old at disposition and had been removed from the home within
months of her birth. Jamie’s age, the court concluded, “weighs heavily” in favor

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No. 2024AP81

of termination so as to “giv[e] [her] permanence,” a consideration the court
viewed as “paramount.”

¶12 Consideration of the third factor was “more difficult” for the circuit
court. It referenced the testimony by Dr. Kathryn White, a psychologist, “that
there is a relationship between [Jamie] and [Quentin],” which testimony “was
buttressed” by the testimony of other witnesses. The court noted the conflict
between White’s testimony that Jamie had a strong relationship with Quentin and
the testimony of Kathleen Peters, a social worker with the Department, indicating
the relationship is “minimal,” “plain,” and not a “parent-child relationship.” The
court discounted White’s opinion because she had testified that it would be
“difficult for me to imagine when I would evaluate a parent and child and
recommend that the parental rights be terminated.” Nevertheless, the court
ultimately found that Jamie and Quentin had “a big relationship,” which “may
even be a substantial relationship.” In addressing whether it would be harmful to
Jamie to sever the relationship with Quentin, the court noted that Jamie was
currently in counseling. It stated, “I don’t see how [Jamie] doesn’t end up
[continuing] counseling, regardless of what happens in court today, because there
has been a lot that’s occurred to her and that’s happened in her life.” In the end,
the court concluded that the third factor weighed in favor of not terminating
Quentin’s parental rights to Jamie because of the relationship that they have with
each other.

¶13 The circuit court expressed that it was “very difficult to ascertain”
Jamie’s “wishes,” which it was to consider under the fourth factor. The court gave
the least weight to this factor “because for a four-year-old to identify with any
certainty what it is her wish is would be very difficult.”

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No. 2024AP81

¶14 As to the fifth factor, “[t]he duration of the separation of the parent
from the child,” the circuit court noted Jamie had been separated from Quentin for
almost all of her four years of life. See WIS. STAT. § 48.426(3)(e). While the
court recognized Quentin’s efforts to have video contact with Jamie from prison
and a rehabilitation center, it noted such contacts were not as preferable and
meaningful as in-person contact. Thus, the court concluded that this factor
weighed in favor of termination.

¶15 In considering the sixth factor—whether Jamie would “be able to
enter into a more stable and permanent family relationship as a result of the
termination, taking into account the conditions of [her] current placement, the
likelihood of future placements and the results of prior placements”—the court
emphasized that “if there’s not a termination today, the case” would “in all
likelihood” continue to be a child in need of protection or services case. See WIS.
STAT. § 48.426(3)(f). The court observed that Jamie would not be going home
with Quentin even if there was not a termination, stating, “[I]f there’s not a
termination today, … does [Jamie] bounce into the [Quentin] household. … [S]he
doesn’t.” The court noted that Quentin “has not had more than 17 hours of time
with [Jamie] in any one given week over the last 48 months.”4

¶16 After addressing each of the WIS. STAT. § 48.426(3) factors, the
circuit court determined that termination was in Jamie’s best interest, and it
ordered the termination of Quentin’s (and K.G.’s) parental rights.

4
Quentin does not assert the circuit court erred in making these findings.

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No. 2024AP81

¶17 Quentin has his own take on the evidence presented at the hearing.
He acknowledges that the first statutory factor—the likelihood of adoption of
Jamie if his parental rights are terminated—“weighed heavily in favor of
termination,” but asserts that the third factor—related to whether Jamie had a
substantial relationship with Quentin and/or other family members and whether
harm would be caused to Jamie by severing the relationship—weighed “heavily
against termination.” In Quentin’s opinion, “the evidence before the court allowed
for alternate inferences to be drawn regarding” the second, fourth, fifth, and sixth
factors. He asserts that because of this, “the statutory factors, and supporting
evidence, were in conflict and opposition. Under such circumstances, no
reasonable judge could conclude that termination of [Quentin’s] parental rights
was in the best interests of [Jamie],” and, as a result, “[t]he circuit court
erroneously exercised it[s] discretion in doing so.”

¶18 Quentin acknowledges that the circuit court “did not specifically find
that the relationship [between him and Jamie] was a ‘substantial’ one.”
Nevertheless, he points to White’s testimony and maintains that it was clear to her
that Quentin and Jamie “have a strong and positive bond” and a “parent-child
relationship” that was more than just “playful” and in which Jamie referred to
Quentin as “daddy.” He further asserts White made it clear that terminating
Quentin’s relationship with Jamie would be a “traumatic event” and “tragic,
harmful in all sorts of ways” for Jamie in the present and future. As the
Department points out, however, White also conceded that severing Jamie’s
relationship with the foster parents would also be detrimental to Jamie.

¶19 Quentin points to the testimony of four other witnesses who testified
to observing a strong, healthy and overall positive bond between Quentin and
Jamie and to several “visitation log entries” documenting details of visits he had

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No. 2024AP81

with Jamie after the fact-finding hearing but before the dispositional hearing.
According to Quentin, the entries show loving interaction between him and Jamie,
including Jamie’s desire to spend time with him. Quentin also notes that even
though the guardian ad litem ultimately recommended the termination of
Quentin’s parental rights, she too noted the positive familial relationship between
Quentin and Jamie.

¶20 Quentin asserts that Jamie’s age at disposition—four years old—is
“significant” because she had more time to bond with Quentin than an infant or
toddler would have had and further asserts she would be “more difficult to place
for adoption than an infant.” Quentin’s latter assertion is significantly undermined
by his acknowledgement that the foster parents with whom Jamie resides testified
they intend to adopt her.

¶21 As to the fifth factor, “[t]he duration of the separation of the parent
from the child,” Quentin acknowledges that Jamie was “two months of age at
removal, and four years of age at disposition” but asserts that her age “weighed
against termination rather than for it, or was otherwise neutral.” See WIS. STAT.
§ 48.426(3). As noted, the circuit court observed that Jamie had been “outside the
home” for all but the first few months of her four years of life. And, as the
Department points out, Quentin was incarcerated or in a rehabilitation facility
from November 5, 2019, until March 2021, and then again from December 4,
2021, until March 28, 2022—accounting for nearly twenty months of the first two-
and-one-half years of Jamie’s life. While the court recognized Quentin’s
continued telephonic and video contact with Jamie while incarcerated and in
in-patient care, it concluded that such contact was not “as meaningful as it would
be in person.” Quentin, however, invites us to focus on his own testimony that
Jamie was his only child and he has consistently been in contact with her since she

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No. 2024AP81

was born as well as focus on other testimony indicating he and Jamie have a
strong bond that “withstood the duration of their physical separation, or flourished
in spite of it.”

¶22 Quentin takes issue with the circuit court giving the “least weight” to
consideration of Jamie’s “wishes.” See WIS. STAT. § 48.426(3)(d). He asserts that
“this [fourth] factor weighed against termination, or was otherwise neutral”
because the “log entries … demonstrate that [Jamie] wished to remain in the
presence of her father, and became quite emotional when forced to leave him.” As
the Department points out, however, other testimony undermined a determination
that Jamie wished to be with Quentin instead of her foster parents, specifically,
testimony from Dr. Susan Oestreicher and the foster mother regarding an
encounter at counseling during which Jamie was dramatically pulling away from
Quentin and only allowed the foster mother to comfort her. The foster parents
also testified to a similar incident that occurred when they saw Quentin at Packers
Family Night, and daycare provider Beth Caramanidis testified that Jamie resisted
leaving for visits with Quentin.

¶23 Quentin also disagrees with the circuit court’s view of the last
statutory factor—“[w]hether the child will be able to enter into a more stable and
permanent family relationship as a result of the termination, taking into account
the conditions of the child’s current placement, the likelihood of future placements
and the results of prior placements.” See WIS. STAT. § 48.426(3)(f). He opines
that the circuit court erred in determining this factor favored termination, as he
asserts that it was “inconsistent with the significant evidence tendered by [him]
demonstrating that he was able to safely parent [Jamie], and could himself provide
[her] with a stable and permanent household.” Quentin directs us to testimony of
two “in-home safety supervisor[s]” indicating that throughout 126 safety checks,

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No. 2024AP81

they observed nothing that concerned them as to Jamie’s safety; a “parent mentor”
indicating she did not “really” have “significant concern regarding the stability of
the household or [Quentin’s] mental status”; and a caseworker agreeing Quentin
had “maintained … adequate and stable housing,” as well as stable employment,
and “demonstrated an ability to meet [Jamie’s] needs” during his supervised
visitation periods with her. Quentin notes that his fiancée testified they live
together, Quentin is a “great father figure” for her ten-year-old son, and she and
Quentin are a “team.” The fiancée stated that Jamie is “very comfortable” with
her, gives her “a hug right away every time she comes over,” and they do mother-
daughter type of activities together.

¶24 Quentin further notes the testimony of his employer, for whom he
does general maintenance work, which testimony was provided at the fact-finding
hearing a month earlier. His employer testified Quentin was a good, reliable
employee, and there was “hopeful advancement” for him in terms of both title and
compensation. He also directs us to the testimony at that same hearing of a doctor
specializing in “the treatment of opioid addiction” who had been treating Quentin
for approximately a year. During that time, Quentin did not miss any
appointments and urine tests did not show the presence of any illicit drugs other
than marijuana. The doctor considered Quentin to be “in early sustained remission
from illicit opiate use” and explained that he was taking opiate medication daily
that the doctor prescribed to him to help him stay free of other opiate use. The
doctor further testified Quentin is “following our protocols and doing very well in
the program.” Quentin insists in his briefing that “the foster parents were not the
only option for familial stability and permanence” for Jamie. He concludes that
“this factor weighed against termination, or was otherwise neutral.”

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No. 2024AP81

¶25 At bottom, Quentin’s appeal asks us to second-guess the circuit
court, reweigh the evidence in a manner similar to how he weighs it, and consider
the statutory factors anew. Those are not our functions on appeal. Rather, we are
to search the record for evidence supporting the court’s exercise of discretion.
State v. Thiel, 2004 WI App 225, ¶26, 277 Wis. 2d 698, 691 N.W.2d 388 (“We
will affirm discretionary determinations if they have a reasonable basis and are
made in accord with the facts of record.”); see also Noble v. Noble, 2005 WI App
227, ¶15, 287 Wis. 2d 699, 706 N.W.2d 166 (stating that “appellate courts search
the record for evidence to support findings reached by the [circuit] court, not for
evidence to support findings the [circuit] court could have reached but did not”).
Furthermore, the weighing and balancing of the evidence, the credibility of the
witnesses, and the findings of fact are left to the circuit court unless the appellant
can demonstrate that the court clearly erred. See Nicholas C.L. v. Julie R.L., 2006
WI App 119, ¶23, 293 Wis. 2d 819, 719 N.W.2d 508 (“[T]he [circuit] court is the
ultimate and final arbiter of the credibility of witnesses, and we must accept the
[circuit] court’s credibility determination[s].”); State v. Carter, 2010 WI 40, ¶19,
324 Wis. 2d 640, 782 N.W.2d 695 (“[T]his court will not exclude the circuit
court’s articulated assessments of credibility and demeanor, unless they are clearly
erroneous.”); State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95
(“We will not reverse the circuit court’s findings of fact unless they are clearly
erroneous.”).

¶26 In sum, we conclude the record clearly shows that the circuit court
reasonably exercised its discretion in terminating Quentin’s parental rights to
Jamie. Quentin has not met his burden to demonstrate to us that the circuit court
erred, and we affirm the court’s order.

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No. 2024AP81

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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