Jackson County DHS v. R. H. H.

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.
November 16, 2023
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 Nos.
2023AP1229 Cir. Ct. Nos. 2020TP2
2020TP3
2023AP1230 2020TP4
2023AP1231 2020TP5
2023AP1232
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NO. 2023AP1229
IN RE THE TERMINATION OF PARENTAL RIGHTS TO N.H.,
A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.

R.H.H.,
RESPONDENT-APPELLANT.
Nos. 2023AP1229
2023AP1230
2023AP1231
2023AP1232

NO. 2023AP1230
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.R.H.,
A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.

R.H.H.,
RESPONDENT-APPELLANT.

NO. 2023AP1231
IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.H.H.,
A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.

R.H.H.,
RESPONDENT-APPELLANT.

NO. 2023AP1232
IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.R.M.K.,
A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.

R.H.H.,
RESPONDENT-APPELLANT.

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APPEALS from orders of the circuit court for Jackson County:
TODD W. BJERKE, Judge. Affirmed.

¶1 GRAHAM, J.1 This is a consolidated appeal of circuit court orders
that terminated R.H.H.’s parental rights to four children. On appeal, R.H.H.
argues that the court erroneously granted partial summary judgment in favor of the
Jackson County Department of Human Services (the “Department”) at the grounds
phase of the proceedings, and that the court erred when it admitted a 2013
psychological report during the dispositional phase of the proceedings. I reject
both arguments and affirm.

BACKGROUND

¶2 In 2010, the Department removed R.H.H.’s four children, N.H.,
A.R.H., M.H.H., and M.R.M.K., from their mother’s home and placed them in
foster care. The Department commenced child in need of protection and services
(CHIPS) proceedings on behalf of the children, who were between the ages of two
months and four years old. In support of the CHIPS petitions, the Department
alleged that the children’s mother was unable to meet their needs, and that R.H.H.
was unavailable to care for them because he was confined in prison with an
unknown release date.

¶3 By dispositional orders issued in February 2011, the CHIPS court
found that the children were at risk of neglect, ordered that the children remain in

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.

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foster placement, and set conditions that each parent would be required to meet
before the children could be returned to that parent’s home.

¶4 In September 2011, R.H.H. was charged with repeated sexual assault
of a child (the “Ashland County case”).2 R.H.H. was convicted in the Ashland
County case and, as a result of the conviction, he was sentenced to a 30-year
prison term and ordered to have no contact with anyone under the age of 17.

¶5 In 2013, the Department asked the CHIPS court to revise the
dispositional orders to prevent contact between R.H.H. and the children. In
support of its motion, the Department introduced reports by Dr. Stephen Dal
Cerro, a psychologist who opined that R.H.H. should not have custody of the
children due to his history of “child sexual victimization and interpersonal
violence coupled with career criminality, personality pathology and parenting
deficits.” The CHIPS court granted the Department’s request and suspended all
contact between R.H.H. and the children. Then in 2016, the CHIPS court again
revised the dispositional orders, this time setting new conditions for return,
including that R.H.H. “complete intensive, high-risk sex offender treatment” and
“complete domestic violence programming.”

¶6 R.H.H’s conviction in the Ashland County case was vacated in 2016
pursuant to a federal habeas corpus proceeding. The Ashland County case was
ultimately resolved when R.H.H. pled no contest to a felony charge of causing
mental harm to a child.

2
The victim in the Ashland County case was not biologically related to R.H.H. and is
not one of the children at issue in this appeal.

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¶7 R.H.H. was released from prison in 2017 but, within months of his
release, he was arrested based on a new criminal charge of first-degree sexual
assault of a different child (the “Dane County case”). R.H.H. was convicted of
sexual assault in the Dane County case and remains in prison for that crime.
According to his briefing in this appeal, he currently “has an active direct appeal
challenging the conviction” in the Dane County case.

¶8 Meanwhile, in 2017, the Department filed termination of parental
rights (TPR) petitions which sought orders terminating R.H.H.’s parental rights to
the four children, and the circuit court ultimately granted that relief. However, on
appeal, the TPR orders were reversed due to the Department’s failure to show that
the CHIPS dispositional orders upon which the TPR petitions were based
contained statutorily required written notices. See Jackson Cnty. DHHS v.
R.H.H., Jr., Nos. 2018AP2440, 2018AP2441, 2018AP2442, 2018AP2443,
unpublished slip op. (WI App. April 4, 2019).

¶9 In October 2019, the CHIPS court issued new dispositional orders,
which undisputedly contain the appropriate statutory notices. The October 2019
dispositional orders again set return conditions, including conditions that required
R.H.H. to complete sex offender treatment and domestic violence programming
before having any contact with the children. It is undisputed for the purposes of
this appeal that R.H.H. never completed sex offender treatment or domestic
violence programming.

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¶10 The Department filed new TPR petitions in 2020.3 Among other
grounds for termination, the Department alleged continuing denial of periods of
physical placement or visitation under WIS. STAT. § 48.415(4) (“continuing
denial”). Generally speaking, to prove the continuing denial ground, a petitioner
must show that the parent has been denied placement or visitation by an order
containing statutory termination of parental rights warnings, and that at least one
year has passed since that order was issued without the court subsequently
modifying its order to permit periods of placement or visitation. See § 48.415(4);
Dane Cnty. DHS v. P.P., 2005 WI 32, ¶26, 279 Wis. 2d 169, 694 N.W.2d 344.4

3
Involuntary termination of parental rights cases follow a “two-part statutory
procedure.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856. “In the
first, or ‘grounds’ phase,” the Department must prove that “one or more of the statutorily
enumerated grounds for termination of parental rights exist.” Id.; WIS. STAT. § 48.31(1). If the
Department proves that grounds exist, “the court shall find the parent unfit.” WIS. STAT.
§ 48.424(4). The court then proceeds to the second, or “dispositional” phase, in which it decides
whether it is in the best interests of the child that the parent’s rights be terminated. Steven V., 271
Wis. 2d 1, ¶27; WIS. STAT. § 48.426(2).
4
More specifically, in Dane County DHS v. P.P., 2005 WI 32, ¶26, 279 Wis. 2d 169,
694 N.W.2d 344, our supreme court identified five steps that must occur before a parent can be
found unfit under the continuing denial statute:

(1) [T]here is an initial decision to hold a child in governmental
custody; (2) if the child is held in custody, then there must be a
factual determination that the child is in need of protection or
services …; (3) if a child is found in need of protection or
services, then the decision about whether to place the child
outside the parental home is made; (4) if the child is placed
outside the home, only after finding that parent-child visitation
or physical placement would be harmful to the child may a
parent be denied visitation and physical placement; and (5) if an
order denying visitation and physical placement is entered, it
must contain conditions that when met will permit the parent to
request a revision of the order to afford visitation or periods of
physical placement.

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¶11 The Department moved for partial summary judgment on the
continuing denial ground. In support of its motion, the Department submitted
affidavits to prove its allegations, and it argued that there was no genuine dispute
that R.H.H. had been denied placement and visitation by the October 2019
dispositional orders; that these orders contained the requisite TPR warnings; and
that over a year had passed since these orders had been issued, and they had not
been modified to permit placement or visitation.

¶12 In his response, R.H.H. did not dispute any of the facts that the
Department presented in support of its partial summary judgment motion. He
instead argued that there was a material dispute about whether a finding of
unfitness on the continuing denial ground would violate his due process rights
because, R.H.H. contended, the dispositional orders placed him in an “impossible
situation.” R.H.H. asserted that his conviction in the Dane County case was “on
appeal,” and that complying with the condition requiring sex offender treatment
“could jeopardize his appeal.” R.H.H. also asserted that the condition requiring
domestic violence programming was “baffling” because he has “no history of
domestic violence.” R.H.H. did not submit an affidavit or any other evidentiary
materials in opposition to partial summary judgment; the only evidentiary material
cited in his response was R.H.H.’s own deposition testimony that sex offender
treatment “would take away my constitutional right to an appeal” in the Dane
County case and that domestic violence programming is “not something that I
need whatsoever.”5

5
This excerpt from the transcript of R.H.H.’s deposition had been introduced by the
Department in its own affidavit supporting partial summary judgment.

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¶13 R.H.H.’s trial counsel elaborated on this argument during the
hearing on the Department’s summary judgment motion. According to counsel,
“it is known that one must,” under Wisconsin Department of Correction rules,
“admit to any sex offenses” as part of sex offender treatment; therefore, to
complete the program, R.H.H. would have to “admit[] to something that’s [on]
appeal.” Trial counsel did not cite any material in the record, nor to any other
authority, in support of these representations.

¶14 The circuit court rejected R.H.H.’s due process argument and
granted the Department’s motion for partial summary judgment. Among other
things, the court observed that, by failing to present his concerns about the
“impossibility” of complying with the dispositional orders to the CHIPS court,
R.H.H. “did not pursue the due process rights he had available to him.” The court
also noted the lack of evidentiary support for R.H.H.’s argument, observing that
“[t]here is no evidence in the record that [R.H.H.] must admit or acknowledge any
element in the Dane County conviction in order that he receive [sex offender
treatment].” Finally, the court determined that “[t]here has been no demonstrated
progress by” R.H.H. toward meeting the sex offender treatment condition or other
return conditions, observing that, for example, “[c]ompliance with the domestic
violence programming would have nothing to do with [R.H.H.’s] appeal, yet he
diagnosed himself as not needing that program and did not participate in that
program.”

¶15 Having established that grounds for termination existed, the circuit
court found R.H.H. to be unfit and moved on to the dispositional phase of the
proceeding. During the dispositional hearing, the Department presented testimony
from Dr. Dal Cerro, who, as noted above, had evaluated R.H.H. in 2013 and

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authored psychological reports recommending that R.H.H. have no contact with
the children. The court received Dal Cerro’s 2013 reports into evidence over
R.H.H.’s objection.

¶16 The circuit court determined that it was in the children’s best
interests to terminate R.H.H.’s parental rights and issued orders doing so. R.H.H.
appeals.

DISCUSSION

¶17 As noted, R.H.H. argues that the circuit court erred at the grounds
phase by granting partial summary judgment on the continuing denial ground, and
at the dispositional phase by admitting one of Dr. Dal Cerro’s reports. I address
these arguments in turn.

I. Grounds Phase

¶18 In his argument regarding the grounds phase, R.H.H. challenges the
constitutionality of WIS. STAT. § 48.415(4), the continuing denial ground for
termination, as applied against him on partial summary judgment. R.H.H. argues
that, under the circumstances, application of the continuing denial statute violated
his substantive due process rights.

¶19 “Substantive due process rights are rooted in the Fourteenth
Amendment of the United States Constitution, and Article I, Sections 1 and 8 of
the Wisconsin Constitution.” Kenosha Cnty. DHHS v. Jodie W., 2006 WI 93,
¶39, 293 Wis. 2d 530, 716 N.W.2d 845. “The right of substantive due process
protects against a state act that is arbitrary, wrong or oppressive, regardless of
whether the procedures applied to implement the action were fair.” Id. (quoting

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P.P., 279 Wis. 2d 169, ¶19). In Jodie W., our supreme court determined that a
parent’s substantive due process rights were violated in a TPR proceeding when
the TPR court found the parent unfit based on her failure to meet “an impossible
condition of return, without consideration of any other relevant facts and
circumstances particular to the parent.” Jodie W., 293 Wis. 2d 530, ¶56.

¶20 As I understand his argument, R.H.H. contends that at least one of
the conditions of return in the October 2019 dispositional orders put him in an
“impossible position” because fulfilling it would jeopardize his appeal in the Dane
County case. R.H.H. represents that, to fulfill the return condition requiring him
to complete a sex offender treatment program, R.H.H. would have to admit to
committing sexual offenses; however, he has maintained his innocence of the
charge in the Dane County case, and the admission required to complete the
treatment program would jeopardize his chances of prevailing on appeal.6 R.H.H.
argues that, as in Jodie W., the continuing denial statute pursuant to which the
circuit court found him unfit is unconstitutional as applied in these circumstances,
and the court erroneously granted summary judgment on that ground.

¶21 As explained below, R.H.H.’s argument fails for at least two
independent reasons. As a procedural matter, R.H.H. failed to identify any

6
R.H.H. does not specifically explain how an admission to having committed sexual
offenses would jeopardize his appeal in the Dane County case. Presumably, R.H.H.’s reasoning
is that his admission could be used against him in postconviction proceedings or if his judgment
of conviction is reversed and the case remanded for a new trial. However, R.H.H. fails to make
this (or any other theory about the legal effect of an admission) clear in his briefing. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (arguments must be supported by
legal reasoning, rather than “general statements”). I nevertheless assume for purposes of this
appeal that the admission purportedly required to complete sex offender treatment would, in fact,
jeopardize R.H.H.’s appeal.

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evidence in the summary judgment record to show that he was required to admit to
sexual offenses as part of a sex offender treatment program, and he therefore failed
to create a genuine dispute of material fact. And as a substantive matter, even if
R.H.H. had presented such evidence, R.H.H.’s argument would nevertheless have
failed because Jodie W. does not apply where, as here, the circuit court’s finding
of unfitness is not based solely on an impossible return condition.

A. Evidentiary Showing

¶22 The statutory summary judgment procedure generally applies to
TPR proceedings, and partial summary judgment may be granted at the grounds
phase. See Steven V., 271 Wis. 2d 1, ¶¶32, 44. Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2).

¶23 I review a circuit court’s grant of summary judgment de novo,
“applying the same methodology as the circuit court but benefiting from the circuit
court’s analysis.” State v. Bobby G., 2007 WI 77, ¶36, 301 Wis. 2d 531, 734
N.W.2d 81. In evaluating a motion for summary judgment, a court first
“examine[s] the moving party’s submissions to determine whether they establish a
prima facie case for summary judgment.” Estate of Oaks v. Stouff, 2020 WI App
29, ¶11, 392 Wis. 2d 352, 944 N.W.2d 611. If the moving party makes such a
showing, the court then “examine[s] the opposing party’s affidavits to determine
whether a genuine issue exists as to any material fact.” Id.

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¶24 R.H.H. does not contest that the Department has made a prima facie
case that he is unfit based on the continuing denial statute; he instead argues that
the statute cannot be constitutionally applied to his situation.7 In an as-applied
challenge, the burden is on the challenger to “prove that the challenged statute has
been applied in an unconstitutional manner beyond a reasonable doubt.” State v.
Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765. “[T]o survive
summary judgment, the party with the burden of proof on an element in the case
must establish that there is at least a genuine issue of fact on that element by
submitting evidentiary material ‘set[ting] forth specific facts,’ pertinent to that
element ….” Dahm v. City of Milwaukee, 2005 WI App 258, ¶4, 288 Wis. 2d
637, 707 N.W.2d 922 (citations omitted) (quoting WIS. STAT. § 802.08(3)).

¶25 Here, R.H.H.’s constitutional challenge depends on the factual
premise that, in order to complete sex offender treatment, he must admit to having
committed sexual offenses. To survive partial summary judgment, he must
therefore identify evidentiary material in the summary judgment record sufficient

7
“There are two major types of constitutional challenges: facial and as-applied.” State v.
Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765. In a facial challenge, the
challenger “must show that the law cannot be constitutionally enforced under any circumstances,”
id., ¶17, but in an as-applied challenge, “the court assesses the merits of the challenge by
considering the facts of the particular case before it,” id., ¶8.

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to show that there is “at least a genuine issue of fact” as to this factual premise.8
R.H.H. identifies no such evidentiary material.

¶26 R.H.H. refers to a statement he made at his deposition, in which he
described sex offender treatment as something that “would take away my
constitutional right to an appeal.” However, this vague statement does not
constitute evidence that sex offender treatment requires any admission—it is
merely R.H.H.’s own legal conclusion about his constitutional rights, without
reference to any facts that would support that conclusion. Thus, it is not
admissible evidence that can be used to defeat summary judgment. See Hopper v.
City of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139 (1977) (averments “made
by persons who do not have personal knowledge or which contain allegations of
ultimate facts, conclusions of law or anything other than evidentiary facts do not
meet the [summary judgment] requirements and will be disregarded”).

¶27 R.H.H. also relies on the assertion by his trial counsel that “it is
known” that a person must admit to sex offenses to complete sex offender
treatment. However, counsel’s statement does not constitute evidence. R.H.H.’s

8
This court has considered the evidentiary showing required by a parent attempting to
defeat summary judgment in this same context. See Dane Cnty. DHS v. Evelin O.-L.,
Nos. 2011AP1168, 2011AP1169, 2011AP1170, 2011AP1171, 2011AP1243, 2011AP1244
2011AP1245, 2011AP1246, 2011AP1247, unpublished slip op. (WI App Aug. 11, 2011). The
Evelin O.-L. opinion can be cited for persuasive value under our rules of procedure, WIS. STAT.
RULE 809.23(3), and I find it to be persuasive. In Evelin O.-L., the parents sought to avoid
partial summary judgment by arguing that the continuing denial statute was unconstitutional as
applied to them because the dispositional order set “impossible” return conditions. Id., ¶6. As
the Evelin O.-L. court explained, “to avoid partial summary judgment under [WIS. STAT.]
§ 48.415(4),” the parents needed to show, among other things, “that there is a reasonable
inference from the facts in the record that one or more conditions were impossible to meet ….”
Id., ¶19.

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counsel did not represent that he had any personal knowledge of sex offender
treatment requirements, and instead stated vaguely that such requirements are
“known.” But even if counsel did have personal knowledge, such representations
by counsel are not evidence. See Merco Distrib. Corp. v. O & R Engines, Inc., 71
Wis. 2d 792, 795-96, 239 N.W.2d 97 (1976) (“Arguments or statements made by
counsel during argument are not to be considered or given weight as evidence.”).
An attorney cannot manufacture a factual dispute by making assertions during a
summary judgment hearing that are unsupported by the record.

¶28 Finally, R.H.H. contends that the circuit court “agreed with
[R.H.H.]’s argument that an admission was necessary to successfully complete sex
offender treatment.” R.H.H. cites an exchange between his trial counsel and the
court at the dispositional hearing, which occurred weeks after the summary
judgment hearing. In this exchange, which occurred during argument on an
evidentiary objection, R.H.H.’s trial counsel represented that “an admission is
necessary to complete sex offender treatment,” and the court responded, “That’s to
complete it. He could have started it. I’ve had plenty of offenders that have
started sex offender treatment and can’t get to that stage ….”

¶29 R.H.H.’s reliance on this statement by the circuit court is misplaced
for at least two reasons. First, the court made this statement at the dispositional
hearing, weeks after summary judgment had already been granted. The
dispositional hearing transcript was not, and could not have been, part of the
summary judgment record, and R.H.H. cannot rely on statements made at that
hearing to defeat a well-supported motion for summary judgment. Second, R.H.H.
cites no law for the proposition that a statement by the circuit court judge can be
used as evidence to defeat summary judgment. Generally, such statements cannot

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be evidence, because “[t]he judge presiding at the trial may not testify in that trial
as a witness.” WIS. STAT. § 906.05; see also State v. Anson, 2005 WI 96, ¶33,
282 Wis. 2d 629, 698 N.W.2d 776 (a court “may not rely on its own personal
observations of events not contained in the record,” because in so doing it is
“essentially acting as a witness in the case”).

¶30 In sum, R.H.H. has pointed to no evidentiary material in the
summary judgment record that would create a genuine dispute of material fact. As
the circuit court noted in its summary judgment decision, “[t]here is no evidence in
the [summary judgment] record that [R.H.H.] must admit or acknowledge any
element in the Dane County conviction in order that he receive [sex offender
treatment].”9 Therefore, R.H.H. has failed to make the evidentiary showing
required to survive partial summary judgment.

B. Jodie W.

¶31 It may not be especially surprising that R.H.H.’s trial counsel did not
attempt to support R.H.H.’s constitutional argument with admissible evidence;
even if supported, the argument would nevertheless have failed. R.H.H.’s
argument relies on our supreme court’s reasoning in Jodie W. regarding
“impossible” return conditions. However, as explained below, the holding from
Jodie W. is inapplicable in situations like this, in which the finding of unfitness

9
R.H.H. also fails to identify any evidentiary material in the record supporting an even
more fundamental premise underlying his argument: that he has appealed or otherwise
challenged the Dane County conviction. However, the Department and the circuit court appear to
have accepted this premise, and I do not further address this issue.

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was based on the parent’s failure to meet multiple conditions and there is no
argument that it was based solely on an impossible condition.

¶32 Jodie W. involved CHIPS and then TPR proceedings against a
mother who was incarcerated. Jodie W., 293 Wis. 2d 530, ¶¶4, 8. In that case, the
county health department initiated the CHIPS proceeding and the child was placed
in a foster home because the mother’s incarceration rendered her unable to care for
her child. Id., ¶¶4-5. The CHIPS court entered a dispositional order setting
several return conditions, including a condition that the mother maintain a
“suitable residence” for her child. Id., ¶7. The department later filed a TPR
petition, alleging the mother was unfit due to the child’s continuing need of
protection or services under WIS. STAT. § 48.415(2) (“continuing CHIPS”). To
prove the continuing CHIPS ground, a petitioner must generally show, among
other things, that the child has been placed outside the home pursuant to a court
order and that, despite reasonable efforts to provide services to the parent, the
parent has failed to meet return conditions. See § 48.415(2).

¶33 The circuit court found the mother unfit under the continuing CHIPS
statute based solely on the fact that, as an incarcerated person, she was unable to
provide a suitable residence for her child. Jodie W., 293 Wis. 2d 530, ¶52. In
making the unfitness finding, the court did not consider other evidence, including
evidence that the mother had completed or made significant progress toward the
other attainable return conditions. Id., ¶¶52-54 & n.23. Our supreme court
reversed, concluding that the continuing CHIPS statute was unconstitutional as
applied to the mother’s circumstances. Id., ¶56. As the Jodie W. court explained,
the unmet return condition “was impossible” for the mother to meet due to her
incarceration, id., ¶47, and the circuit court violated the mother’s substantive due

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process rights by finding her “unfit solely by virtue of her status as an incarcerated
person without regard for her actual parenting activities or the condition of her
child,” id., ¶55.

¶34 There are several significant distinctions between the instant case
and Jodie W., and these distinctions call into question the extent to which the
reasoning from Jodie W. applies here. As one example, Jodie W. involved an as-
applied constitutional challenge to a different statutory ground for unfitness
(continuing CHIPS under WIS. STAT. § 48.415(2), rather than continuing denial
under § 48.415(4)). R.H.H. cites no case in which Jodie W.’s reasoning has been
extended to a constitutional challenge to the continuing denial statute, or to any
other statutory ground for unfitness. As another example, the CHIPS court in
Jodie W. set a return condition that appeared to have been impossible on its face—
under most circumstances, it is evident that a parent will be unable to maintain a
suitable home for their child while incarcerated. Here, by contrast, the
requirement to complete sex offender treatment is not impossible on its face.
Rather, R.H.H. contends that it was impossible for a reason that is not obvious,
and is unique to his situation—that it would require him to make an admission that
would jeopardize his appeal in a separate criminal case. And R.H.H. identifies no
evidence in the record showing that he ever informed the CHIPS court or the
Department that he did not believe he could complete this return condition, or

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even that he believed that the condition would have negative implications for his
appeal.10

¶35 However, I need not and do not examine the potential significance of
these or other distinctions. Rather, I assume without deciding that, as R.H.H.
contends, it was impossible for him to complete sex offender treatment, and also
that the reasoning in Jodie W. could apply here, despite any differences between
the applicable statutory grounds for the unfitness findings. I will also set aside any
question of whether R.H.H. forfeited his argument by failing to inform the CHIPS
court or the Department that he believed that it was impossible for him to
complete sex offender treatment. See State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612 (forfeiture is the failure to timely assert a right). I
need not address these issues because this court has already concluded that
Jodie W. does not govern situations where, as here, a finding of unfitness is not
based solely on an impossible return condition, but is also based on failure to meet
other conditions that were attainable. See Waukesha Cnty. DHHS v. Teodoro E.,
2008 WI App 16, ¶24, 307 Wis. 2d 372, 745 N.W.2d 701.

¶36 In Teodoro E., the dispositional order issued by the CHIPS court
required the father to complete return conditions, including regular visits with the
children, which were impossible to complete because the father had been deported
and could not re-enter the country. Teodoro E., 307 Wis. 2d 372, ¶¶5, 22. In the

10
R.H.H. contends that the Department was required to “tailor the conditions” of the
October 2019 dispositional order to his “particular needs,” and that the Department instead “set[]
up [R.H.H.] to fail.” The implication of this argument appears to be that the Department
intentionally set a return condition it knew was impossible for R.H.H. to complete; yet, as noted
above, R.H.H. identifies no facts in the record that would support such an accusation.

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ensuing TPR proceeding, the circuit court found the father unfit under the
continuing CHIPS ground based on his failure to meet multiple return conditions.
Id., ¶21.

¶37 On appeal, the father argued that, as in Jodie W., the finding of
unfitness violated his due process rights because it was based on an impossible
return condition. Id., ¶¶20-23. In rejecting that argument, we noted that the father
“remained free to work on and meet many of the conditions of return” while he
was out of the country—such as communicating with the child’s doctors and
teachers and regularly paying child support—but the circuit court had found that
he failed to do so. Id., ¶23. We concluded that the finding of unfitness was “not
based solely on impossible conditions,” and Jodie W. therefore did not “govern
this case.” Id.

¶38 R.H.H. makes the same argument that we rejected in Teodoro E.
Like the father in that case, R.H.H. was not found unfit based “solely” on a
purportedly impossible condition. Instead, among other conditions, the October
2019 dispositional order also requires R.H.H. to complete a domestic violence
program. R.H.H. does not argue that this condition was impossible to complete;
rather, by his own admission, he chose not to participate because he unilaterally
determined that a domestic violence program would not benefit him.11 Nor does

11
In the summary judgment response that R.H.H. filed in the circuit court, he asserted
that compliance with the domestic violence programming condition would be “unattainable,” or
at least that he would be “possibly unable to complete” domestic violence programming, because
“he’s not admitting to something he didn’t do.” However, R.H.H. has not identified any record
support for the assertion that domestic violence programming would, in fact, require an admission
that he committed domestic violence, and he appears to have abandoned this assertion on appeal.

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R.H.H. dispute that he failed to complete or even work toward other attainable
return conditions, including conditions requiring him to “[a]cknowledge and
demonstrate an understanding of the effect [that] his incarceration has on his
children.” The circuit court considered R.H.H.’s failure to meet these attainable
conditions, observing that R.H.H. made “no demonstrated progress … toward
meeting the CHIPS court[-]ordered conditions that impacted his contact,
visitation, and placement with his children.”12 This is in stark contrast to the
mother in Jodie W., who, despite her incarceration, worked diligently on the return
conditions she was able to complete. See Jodie W., 293 Wis. 2d 530, ¶54 & n.23.
We concluded in Teodoro E. that the father’s substantive due process argument
failed under such circumstances, and R.H.H. identifies nothing in the summary
judgment record that would lead to a different result in this case.

¶39 Accordingly, R.H.H. has failed to show that there is any genuine
dispute of material fact that would prevent partial summary judgment on the
continuing denial ground for termination.13

12
More specifically, in its summary judgment order, the circuit court stated that “[t]here
is no evidence in the record that [R.H.H.] acknowledged and demonstrated an understanding of
the effects that his crimes have had on his children.” As to another condition of return, which
requires R.H.H. to complete “criminal thinking programming,” the court noted that, although
R.H.H.’s trial counsel represented that R.H.H. had completed this condition, “no evidence has
been provided to document completion of that programming.” In this appeal, R.H.H. does not
identify any record evidence showing that he completed or took any steps toward completing
either of these return conditions.
13
At times in the briefing, R.H.H. broadly argues that summary judgment was
inappropriate because “there are genuine issues of material fact that could have been presented at
a jury trial.” But the sole factual question that R.H.H. clearly identifies is the condition that is
addressed at length in the body of this opinion—“whether the [sex offender treatment] condition
was possible for [R.H.H.] to meet.” As explained above, even assuming that this condition was
“impossible” to meet, the constitutional argument still fails. Therefore, R.H.H. has not identified
any issue of material fact that needed to be decided by a jury.

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II. Dispositional Phase

¶40 I now turn to the argument that the circuit court erred by admitting
Dr. Dal Cerro’s 2013 psychological evaluation at the dispositional hearing. At the
dispositional phase of a TPR proceeding, the circuit court considers whether
termination of parental rights is in the best interests of the child, guided by the
factors set forth in WIS. STAT. § 48.426. Sheboygan Cnty. HHS v. Julie A.B.,
2002 WI 95, ¶¶29, 37, 255 Wis. 2d 170, 648 N.W.2d 402.

¶41 With limited exceptions that are inapplicable here, “neither common
law nor statutory rules of evidence are binding” at a dispositional hearing. WIS.
STAT. § 48.299(4)(b). Nevertheless, “[t]he court shall apply the basic principles of
relevancy, materiality, and probative value to proof of all questions of fact,” and
“shall exclude immaterial, irrelevant, or unduly repetitious testimony.” Id.
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” WIS. STAT. § 904.01.

¶42 “The admissibility of evidence is directed to the sound discretion of
the [circuit] court, and [an appellate court] will not reverse the [circuit] court’s
decision to allow the admission of evidence if there is a reasonable basis for the
decision and it was made ‘in accordance with accepted legal standards and in
accordance with the facts of record.’” State v. Brewer, 195 Wis. 2d 295, 305, 536
N.W.2d 406 (Ct. App. 1995) (quoting State v. Whitaker, 167 Wis. 2d 247, 252,
481 N.W.2d 649 (Ct. App. 1992)).

¶43 Multiple witnesses testified at the dispositional hearing in R.H.H.’s
case, including Dal Cerro. As previously stated, Dal Cerro is a psychologist who

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had evaluated R.H.H. in 2013, shortly after R.H.H. was convicted in the Ashland
County case. Over R.H.H.’s relevance objection, the circuit court admitted into
evidence two reports that Dal Cerro prepared in 2013. R.H.H. contends that the
court erred by admitting one of these reports, which is a psychological evaluation
of R.H.H.14

¶44 The evaluation presents biographical background about R.H.H. and
his extensive criminal history, including but not limited to his conviction in the
Ashland County case. The evaluation notes that R.H.H. “has lived an exclusively
criminal lifestyle,” has been convicted for offenses that include theft, burglary,
forgery, and battery, and has been “incarcerated or under community supervision
for the majority of his life, beginning in his early teens.”

¶45 The evaluation also presents the allegations of abuse that formed the
basis of the charge in the Ashland County case. It references the victim’s
videotaped interview, in which she alleged repeated acts of forced sexual
intercourse and other physical abuse that began when she was five or six years old.
The evaluation notes that R.H.H. believed he would prevail in an appeal of the
Ashland County conviction, but dismisses this belief as “likely unrealistic.” As
mentioned, the conviction in that case was, in fact, later vacated, and the case was
resolved when R.H.H. pled to a lesser felony following a remand.

14
R.H.H. does not expressly identify which of the two Dal Cerro reports he means to
challenge. The only report referenced in R.H.H.’s briefing by its record citation is the 2013
psychological evaluation, and my analysis addresses the content of that report. To the extent
R.H.H. intends to challenge the admission of Dal Cerro’s other report, I reject any such argument
because it lacks citation to the record. See Lechner v. Scharrer, 145 Wis. 2d 667, 429 N.W.2d
491 (Ct. App. 1988) (I need not consider arguments that are not supported by references to the
record).

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¶46 The evaluation diagnoses R.H.H. with “Antisocial Personality
Disorder (psychopathic),” noting that he exhibits a “high level of psychopathy”
and scored “at the 98th percentile” on a psychopathy measure “in comparison to a
sample of male prison inmates.” According to the evaluation, psychopaths “show
impairment in their ability to form long-lasting bonds to people, principles, or
goals,” “are lacking in empathy, anxiety, and genuine guilt and remorse,” and are
predisposed to “criminality, substance abuse, and a failure to fulfill social
obligations and responsibilities.” The evaluation also states that R.H.H. “appears
to meet the criteria for Pedophilia,” and notes that “the combination of sexual
deviance and psychopathy has been empirically associated with the greatest risk
for sexual re[]offending.”15

¶47 The evaluation recommends against permitting contact between
R.H.H. and his children, opining that, “[i]f exposed to [R.H.H.] in any meaningful
fashion, his antisocial behaviors, beliefs, and attitudes would pose a psychological
risk to the children, in terms of modeling and influence.”

¶48 On its face, the evaluation appears to be directly relevant to whether
termination of R.H.H.’s parental rights would be in the children’s best interests.
As just one example, information about R.H.H.’s potential negative impact on his
children is relevant in determining whether severing R.H.H.’s ties to the children

15
R.H.H. appears to call into question the pedophilia diagnosis, citing Dal Cerro’s
dispositional hearing testimony that it had been “technically inappropriate” to diagnose R.H.H.
with pedophilia in 2013 because, at that time, there was “only … one established episode of
pedophilia.” However, Dal Cerro also testified that he nevertheless stood by this diagnosis,
which was supported by R.H.H.’s subsequent conviction in Dane County for sexual assault of a
second child.

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would be harmful to them, which is one of the enumerated best interest factors.
See WIS. STAT. § 48.426(c).

¶49 R.H.H. appears to make two arguments challenging the relevance of
the 2013 evaluation. He argues that: (1) the evaluation was made “in reliance on
a conviction that would later be reversed”; and (2) “the passage of time and the
dramatic change in circumstances” since 2013 “makes the doctor’s assessments
obsolete.” These arguments are unavailing.

¶50 It is overstatement to contend, as R.H.H. does, that the evaluation
was made “in reliance” on the vacated Ashland County conviction. Much of the
information in the evaluation (including R.H.H.’s prior criminal history and his
psychopathy diagnosis) does not relate in any direct way to the Ashland County
case. And, to the extent that the allegations underlying the Ashland County case
informed his evaluation, Dal Cerro explained during the dispositional hearing that
he did not base his assessments on the existence or absence of a criminal
conviction, but rather on the “behavior as reported by the victim and collaterals.”
Dal Cerro testified that he had extensive professional experience considering
victims’ reports of sexual assault and, based on this experience, he believed in
2013—and still believed at the time of the dispositional hearing—that the
allegations were true. R.H.H. was free to call this belief into question based on the
fact that the conviction had been vacated, and his trial counsel did so during the
dispositional hearing. But the fact that Dal Cerro’s belief can be challenged does
not render irrelevant any of his assessments based on that belief.

¶51 Nor does R.H.H. persuade me that the passage of time has rendered
the evaluation “obsolete.” At the dispositional hearing, Dal Cerro testified that

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psychopathy is “a very stable condition” and “there is no evidence that the
condition changes for the better” over time. R.H.H. points to the fact that the
children are now ten years older, arguing that “[c]ommon sense dictates that a
child under six has different emotional and intellectual capabilities than a teen.”
However, R.H.H. does not identify any specific information in the evaluation that
would be any less important—let alone rendered completely irrelevant—based on
the children’s current ages.

¶52 Accordingly, the record shows a reasonable basis for the circuit
court’s determination that the evaluation was relevant, and R.H.H. has not shown
that the court erroneously exercised its discretion in admitting it.

CONCLUSION

¶53 For all of these reasons, I affirm the circuit court orders that
terminated R.H.H.’s parental rights to N.H., A.R.H., M.H.H., and M.R.M.K.

By the Court.—Orders affirmed.

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

25