State v. H. C.

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.
March 5, 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. 2023AP1950 Cir. Ct. No. 2022TP86

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

H. C.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.
No. 2023AP1950

¶1 COLÓN, J.1 H.C. appeals from an order of the circuit court
terminating her parental rights to her son, John.2 On appeal, H.C. argues that WIS.
STAT. § 48.426(3) is unconstitutional on its face because it does not define a
specific burden of proof for the State at the dispositional phase of a proceeding to
terminate parental rights. She further argues that the circuit court erroneously
exercised its discretion following the disposition hearing when it found that it was
in her son’s best interest to terminate her parental rights.

¶2 Upon review, we conclude that due process requires that the best
interest of the child be proven by a preponderance of the evidence at the
dispositional phase. However, we also conclude that the circuit court did not
erroneously exercise its discretion when it found that it was in John’s best interest
to terminate H.C.’s parental rights. Thus, for the reasons set forth below, we
affirm the circuit court’s order terminating H.C.’s parental rights to her son.

BACKGROUND

¶3 On May 3, 2022, the State filed a petition to terminate H.C.’s rights
to her son, John, and alleged both continuing CHIPS3 and failure to assume
parental responsibility as grounds for termination.4

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
As a result of H.C. and her son having the same initials, we refer to H.C. using her
initials and to her son using the pseudonym used by the parties. See WIS. STAT. RULE
809.19(1)(g).
3
CHIPS is a commonly used acronym for child in need of protection or services. See
Eau Claire Cnty. DHS v. S.E., 2020 WI App 39, ¶1 n.3, 392 Wis. 2d 726, 946 N.W.2d 155.
4
The petition further sought to terminate the rights of John’s father, who remains
unknown. The father’s rights are not at issue in this appeal.

2
No. 2023AP1950

¶4 As described in the petition, H.C. lived in a group home with John,
and their whereabouts were frequently unknown. When they would return to the
group home, H.C. would no longer have certain items that were provided to her
for John’s care, such as bottles, pacifiers, and a stroller, and H.C. would disclose
that she spent the night at a “flop house” or an abandoned house. H.C. also lacked
an understanding of how to care for John and his medical needs, and staff took
John to the emergency room on at least one occasion.5 H.C. additionally failed to
address concerns related to drugs and alcohol, failed to address concerns related to
H.C.’s mental health, and generally failed to participate in any recommended
services to have John returned to her care. H.C. was also sporadic with her
visitation and involvement in John’s life following his removal from her care.

¶5 On January 23, 2023, H.C. pled no contest to the continuing CHIPS
ground alleged in the petition. The case proceeded to a hearing on the grounds
and the disposition on June 5, 2023. At the hearing, the former and current case
managers and John’s foster mother testified. The circuit court also took judicial
notice of the report prepared by one of H.C.’s case managers and the documents
from the CHIPS proceedings. H.C. did not personally attend the hearing.

¶6 The testimony at the hearing established that John was found to be a
child in need of protection or services on September 15, 2021, and the court
entered a CHIPS order containing conditions for H.C. to meet to have John
returned to her care. Since the time John was removed from H.C.’s care, H.C.’s

5
Indeed, John had several diagnoses, including global development delays, dysplasia,
optic nerve pallor, failure to thrive, growth delay, mycrocephaly, congenital cysts consistent with
prenatal stroke, and autism disorder. John also required regular weight checks that H.C. failed to
consistently attend.

3
No. 2023AP1950

visits were “sporadic” and remained supervised, and H.C. had “sporadic” contact
with John’s foster parents. H.C. also failed to complete any of the conditions to
have John returned to her care.

¶7 The testimony further established that John had been in the same
foster placement “[f]or about a year” and that his current placement was an
adoptive resource for him.6 John initially would not let his foster family interact
with or touch him, but he had adjusted well to the point where he eventually let his
foster mother hold him and “interact with him completely.” John’s medical and
behavioral conditions also improved. In particular, his self-abusive behaviors
related to his autism were improving, he was working on eating certain foods such
as oatmeal and blueberries, and he was working on standing.

¶8 Additionally, the witnesses testified that, as a result of his
conditions, John could not understand the termination proceedings or adoption, but
the witnesses still believed that he would not be harmed by severing the legal
relationship with H.C. In fact, John would be able to enter into a more stable and
permanent family relationship if H.C.’s parental rights were terminated because
his placement, where he was receiving the care he needed, would move from long-
term to permanent, and it was generally considered beneficial to close a CHIPS
case for a child who is in a safe and stable environment rather than have the case
“linger” until the child reaches the age of eighteen.

¶9 The circuit court found that it was in John’s best interest to terminate
H.C.’s parental rights. In reaching its decision, the circuit court found that John’s

6
John spent “roughly two years” with H.C. before being removed from her care, and he
had been out of the home for at least another two years at the time of the hearing.

4
No. 2023AP1950

foster mother “would keep him and take care of him and love him and continue to
do things to improve his life, to the extent it can be,” even if John remained in
foster care.

¶10 The circuit court also evaluated the factors found in WIS. STAT.
§ 48.426(3) and found that they generally weighed in favor of terminating H.C.’s
parental rights. As to the first factor, the circuit court found that “the likelihood of
adoption after termination is pretty certain here.” As to the second factor, the
circuit court observed “there’s substantial physical health issues [and] emotional
issues,” but John’s foster mother was “aware of all this … and nothing about his
health, physical health, behavioral health, emotional health, is in any way a bar to
adoption if termination were to go through.” The circuit court addressed the third
factor saying that there has not been “any testimony at all about maternal family
members, … so he certainly does not have any relationship whatsoever with
extended maternal relatives.” In regard to John’s relationship with H.C., the
circuit court found “there is no way under everything I’ve heard here, that we
could call their relationship substantial” and “it’s highly unlikely that there will be
any sort of visitation or contact between [H.C.] and [John].”

¶11 The circuit court continued by finding that the fourth factor was
“neutral” because John was only five years old and “cannot articulate any issues of
any sort that we could even analyze under the fourth factor here.” However, the
circuit court further found under the fifth factor that John had been separated from
H.C. for a “substantial” portion of his life, which “[i]t’s been close to 60% of
[John]’s life.”

5
No. 2023AP1950

¶12 Overall, the circuit court found that the third, fifth, and sixth factors
weighed heavily in favor of termination and the third and the sixth factors “are the
ones that come to the forefront.” The circuit court then concluded saying:

I do think that unquestionably, termination of parental
rights of [H.C.] … is in [John]’s best interest under [WIS.
STAT. §] 48.427(3). And if there were a civil burden of
proof that the State had to meet in this case such as
preponderance or even clear and convincing evidence, the
State has certainly met those two burdens here, and gone
beyond them, certainly. It’s really an overwhelming
situation.

¶13 H.C. now appeals.

DISCUSSION

¶14 “Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271
Wis. 2d 1, 678 N.W.2d 856. In the first phase, called the “grounds” phase, “the
petitioner must prove by clear and convincing evidence” that at least one of the
twelve grounds enumerated in WIS. STAT. § 48.415 exists. Steven V., 271 Wis. 2d
1, ¶¶24-25. If grounds exist, the court must find the parent unfit, and the
proceedings move to the second phase. WIS. STAT. § 48.424(4); Steven V., 271
Wis. 2d 1, ¶¶25-26. In the second phase, often referred to as the “dispositional
phase,” the court must decide if it is in the child’s best interest that “the parent’s
rights be permanently extinguished.” Steven V., 271 Wis. 2d 1, ¶¶26-27. At the
disposition hearing, the court may enter an order terminating a parent’s rights or
dismiss the petition. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶28, 255
Wis. 2d 170, 648 N.W.2d 402.

¶15 On appeal, H.C. raises two main arguments related to the second
phase of the proceedings. First, she argues that WIS. STAT. § 48.426 is facially

6
No. 2023AP1950

unconstitutional because it does not define a burden of proof for the State at the
dispositional phase of a proceeding to terminate parental rights. Second, she
argues that the circuit court erroneously exercised its discretion when it found that
it was in her son’s best interest to terminate her parental rights. We address each
argument in turn.

I. Whether due process requires a burden of proof at the
disposition

¶16 H.C. argues that WIS. STAT. § 48.426 is facially unconstitutional
because it does not define a burden of proof for the State to meet at the disposition
hearing for a proceeding to terminate parental rights. Specifically, H.C. cites to
Santosky v. Kramer, 455 U.S. 745 (1982), and argues that procedural due process
requires the State to prove by clear and convincing evidence that termination is in
the best interest of the child.

¶17 On the other hand, the State argues that H.C.’s argument ignores the
process leading up to the dispositional phase and the plethora of rights and
procedures afforded to the parent prior to the dispositional phase. See Julie A.B.,
255 Wis. 2d 170, ¶24 (describing that “the burden is on the government, and the
parent enjoys a full complement of procedural rights” during the grounds phase).
The State argues that, considering these rights and processes, WIS. STAT. § 48.426
is constitutional and compliant with the requirements of due process and Santosky.

¶18 The State further argues that placing a burden of proof on the State
at the disposition ignores the structure of the disposition and the determination of
what is in the best interest of the child. The State contends that the disposition is
structured to allow the circuit court to receive and consider as much information as
possible in determining the child’s best interest and that all parties are invited to

7
No. 2023AP1950

present evidence to support what each party deems to be in the best interest of the
child. See WIS. STAT. § 48.427(1) (“[A]ny party may present evidence[.]”).
Placing a burden solely on the State, then, would be imprudent as the burden of
proving what is in the best interest of the child is shared by all parties at the
disposition and a burden on the State would limit the information received by the
circuit court.

¶19 Taking a third approach, the guardian ad litem (GAL) argues that a
preponderance of the evidence burden of proof should be applied at the disposition
hearing.7 In making this argument, the GAL contends that the disposition is a
proceeding that is different in kind from the grounds phase where the State is
directly pitted against the parent. Rather, the GAL compares the disposition
hearing to a court trial that provides all parties the opportunity to call witnesses,
present evidence, and make arguments to establish their respective positions.
Thus, the GAL maintains that a preponderance of the evidence standard would be
appropriate at the disposition.

¶20 Having considered the arguments of the parties, we conclude that the
appropriate burden of proof at the dispositional phase is the preponderance of the
evidence. Due process, while it does not require proof of a child’s best interest by
clear and convincing evidence, does require, at a minimum, proof of a child’s best
interest by a preponderance of the evidence. Therefore, we conclude that WIS.

7
The GAL also argues that a clear and convincing evidence burden of proof could be
applied but nevertheless recognizes that it is not constitutionally required under Santosky v.
Kramer, 455 U.S. 745 (1982). Overall, the GAL simply requests that a burden of proof be
applied for the orderly administration of justice.

8
No. 2023AP1950

STAT. § 48.426 requires proof of the child’s best interest by a preponderance of the
evidence to satisfy due process requirements.

¶21 “A parent’s interest in the parent-child relationship and in the care,
custody, and management of his or her child is recognized as a fundamental liberty
interest protected by the Fourteenth Amendment.” Steven V., 271 Wis. 2d 1, ¶22.
“Thus, due process requires that ‘[w]hen the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair procedures.’”
Id., ¶23 (alteration in original; citation omitted). As stated, H.C. argues here that
WIS. STAT. § 48.426 does not satisfy the requirements of due process because it
fails to hold the State to a burden of proof of clear and convincing evidence.

¶22 “Statutes are generally presumed constitutional,” and H.C. as the
challenger “must persuade us that the ‘heavy burden’ to overcome the
presumption of constitutionality has been met, and that there is proof beyond a
reasonable doubt that the statute is unconstitutional.” Tammy W-G. v. Jacob T.,
2011 WI 30, ¶46, 333 Wis. 2d 273, 797 N.W.2d 854. We review independently
whether WIS. STAT. § 48.426 satisfies the requirements of due process. See
Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶22, 293 Wis. 2d 530, 716 N.W.2d
845.

¶23 In Santosky, the United States Supreme Court addressed whether a
New York statute for a “permanent neglect proceeding” comparable to
Wisconsin’s termination of parental rights proceedings met the requirements of
due process. Santosky, 455 U.S. at 747-48. Similar to our proceedings, the New
York proceeding was bifurcated into a fact-finding hearing and disposition
hearing. Id. at 748. The fact-finding hearing required the state to prove by “a fair
preponderance of the evidence” that the child was “permanently neglected,” and

9
No. 2023AP1950

the disposition hearing required the court to consider “what placement would
serve the child’s best interests.” Id. The Court addressed the fair preponderance
of the evidence standard applied at the fact-finding hearing and ultimately held
that “due process requires that the [s]tate support its allegations by at least clear
and convincing evidence.” Id. at 747-48.

¶24 To reach its conclusion, the Court evaluated three factors from
Mathews v. Eldridge, 424 U.S. 319 (1976), to determine “the nature of the process
due in parental rights termination proceedings”: “the private interests affected by
the proceeding; the risk of error created by the State’s chosen procedure; and the
countervailing governmental interest supporting use of the challenged procedure.”
Santosky, 455 U.S. at 754. Evaluating these three factors with respect to the New
York statute, the Court described the private interest affected as “commanding,”
the risk of error “substantial,” and the countervailing governmental interest
“comparatively slight.” Id. at 758. Thus, the Court reached the conclusion that a
“fair preponderance of the evidence” standard is “inconsistent with due process.”
Id. With this framework in mind, we turn to our statute at issue here.

¶25 WISCONSIN STAT. § 48.426 sets forth the standards and factors that
govern at the disposition, and the statute provides in full:

(1) COURT CONSIDERATIONS. In making a decision about
the appropriate disposition under s. 48.427, the court shall
consider the standard and factors enumerated in this section
and any report submitted by an agency under s. 48.425.

(2) STANDARD. The best interests of the child shall be the
prevailing factor considered by the court in determining the
disposition of all proceedings under this subchapter.

(3) FACTORS. In considering the best interests of the child
under this section the court shall consider but not be limited
to the following:

10
No. 2023AP1950

(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.

¶26 As the present dispute makes plain, WIS. STAT. § 48.426 is silent on
the burden of proof applied at the disposition hearing. At first glance, Santosky
appears to require a clear and convincing burden of proof at the disposition
hearing. However, Santosky addressed a fact-finding hearing equivalent to our
grounds phase of a termination of parental rights proceeding, and it did not address
the dispositional phase of the proceedings. Nevertheless, we find Santosky
instructive in this situation as Santosky spells out the “Supreme Court’s three-part
test for determining what process is constitutionally due in TPR cases.” See
Steven V., 271 Wis. 2d 1, ¶40.

¶27 Turning to the first factor, the Court recognized in Santosky that the
state, in a termination proceeding, seeks to end “a natural parent’s ‘desire for and
right to the companionship, care, custody, and management of his or her
children.’” Santosky, 455 U.S. at 758-59 (citation omitted). The Court, therefore,
concluded that the parent’s interest at stake was a commanding one. Id. at 759.

11
No. 2023AP1950

¶28 While the parent retains an interest at the dispositional phase that
requires protection, we must also recognize that the parent’s interest is the highest
at the ground stage, not the disposition stage. See Julie A.B., 255 Wis. 2d 170,
¶¶24, 28. Rather, when the court reaches the second step of the termination
proceeding, the parent’s interest must also accommodate the best interest of the
child as the paramount concern at the disposition. See id., ¶30. Indeed, the Court
in Santosky recognized that “the child and his foster parents are also deeply
interested in the outcome” of a termination proceeding and these interests compete
with the interests of the parent at the dispositional phase of the proceedings.
Santosky, 455 U.S. at 759-61; see also Julie A.B., 255 Wis. 2d 170, ¶22 (stating
that “other vital interests must be accommodated” in a termination proceeding).
Thus, we consider that this factor strongly favors imposing a preponderance of the
evidence burden of proof to accommodate the different vital interests at play in the
dispositional phase.

¶29 As to the second factor, the Court in Santosky considered that the
fact-finding phase was “an adversary contest” between the state and the natural
parents, and “[a]t such a proceeding, numerous factors combine to magnify the
risk of erroneous factfinding.” Id. at 761-62. Similar to the first factor, we
recognize that the adversary contest between the parent and the State that drove
the Court’s analysis in Santosky survives the fact-finding hearing, but the risk of
error is reduced given that the parent has been deemed unfit.

¶30 We must also account for the changed dynamics at the disposition
hearing to recalibrate for the best interest of the child. We must further account
for the changed structure because, in contrast to the fact-finding hearing, “[a]ny
party may present evidence relevant to the issue of disposition, including expert
testimony, and may make alternative dispositional recommendations to the court.”

12
No. 2023AP1950

WIS. STAT. § 48.427(1). Furthermore, “the court ‘should welcome’ any evidence
relevant to the issue of disposition[.]” Steven V., 271 Wis. 2d 1, ¶27 (citation
omitted). Thus, we consider that this factor weighs in favor of applying a
preponderance of the evidence standard at the dispositional phase.

¶31 Under the third and last factor, the Court in Santosky recognized
“[t]wo state interests are at stake in parental rights termination proceedings—a
parens patriae interest in preserving and promoting the welfare of the child and a
fiscal and administrative interest in reducing the cost and burden of such
proceedings.” Santosky, 455 U.S. at 766.

¶32 As with the first two factors, we consider that preserving and
promoting the welfare of the child changes at the dispositional phase after a parent
has been found unfit. “As parens patriae, the State’s goal is to provide the child
with a permanent home.” Id. at 766. “The State’s interest in finding the child an
alternative permanent home arises only ‘when it is clear that the natural parent
cannot or will not provide a normal family home for the child.’” Id. at 767
(citation omitted). By the time the proceedings reach the dispositional phase, the
State’s interest in finding an alternative permanent home for the child has risen
given that the parent has been deemed unfit.

¶33 Turning to any fiscal and administrative considerations, we observe
that a preponderance of the evidence burden of proof would not impose substantial
fiscal burdens upon the State, nor would such a burden of proof “create any real
administrative burdens for the State’s factfinders.” Id. at 767-68. As a practical
matter, the State is already being held to a burden of proof as evident by these very
proceedings where the circuit court stated at the disposition hearing, “And if there
were a civil burden of proof that the State had to meet in this case such as

13
No. 2023AP1950

preponderance or even clear and convincing evidence, the State has certainly met
those two burdens here, and gone beyond them, certainly.” Therefore, we
consider that the third factor weighs in favor of imposing a preponderance of the
evidence burden of proof at the time of disposition.

¶34 Having considered all three factors, we therefore conclude that due
process requires that the best interest of the child be proven by a preponderance of
the evidence at the dispositional phase of a proceeding to terminate parental rights.

¶35 In reaching our conclusion, we note that this burden is not solely
placed on the State. Rather, to account for the ability of all parties to present
evidence and arguments at the disposition, we consider it a common burden of
proof wherein each party bears the burden to show by a preponderance of the
evidence that its desired outcome—be it termination or preservation of parental
rights—is in the best interest of the child.

¶36 We further note that applying a burden of proof does not upset the
circuit court’s ultimate discretion in the decision to terminate parental rights. See
State v. Margaret H., 2000 WI 42, ¶¶27, 32, 234 Wis. 2d 606, 610 N.W.2d 475.
Rather, we consider that it remains within the circuit court’s discretion to
determine the best interest of the child.8

8
We observe that a similar question was addressed in In re D.T., 818 N.E.2d 1214 (Ill.
2004). In D.T., the court explained that “sound discretion” was not a burden of proof, and after
conducting an analysis of Santosky, the court concluded that due process required imposing a
preponderance of the evidence burden of proof at the dispositional phase. D.T., 818 N.E.2d at
1221-23, 1228.

14
No. 2023AP1950

II. Whether the circuit court erroneously exercised its discretion at
the disposition hearing

¶37 H.C. next argues that the circuit court erroneously exercised its
discretion when it found that it was in John’s best interest to terminate H.C.’s
parental rights. We disagree.

¶38 It is well-settled that the ultimate decision to terminate parental
rights is committed to the circuit court’s discretion. Id. This court will not
overturn a discretionary decision of the circuit court if it applied a correct standard
of law to the facts and reached a conclusion that a reasonable judge could reach.
Id., ¶32.

¶39 As previously described above, WIS. STAT. § 48.426 provides that
the best interest of the child “shall be the prevailing factor considered by the
court” and the court “shall consider” the six factors in evaluating the best interest
of the child.

¶40 At the time of the disposition, the circuit court listed each factor
found in WIS. STAT. § 48.426(3) on the record, assigned a weight to each factor,
and provided factual support from the testimony and other evidence introduced at
the disposition to support its analysis of each factor. Importantly, the circuit court
found, “[I]f there were a civil burden of proof that the State had to meet in this
case such as preponderance or even clear and convincing evidence, the State has
certainly met those two burdens here, and gone beyond them, certainly. It’s really
an overwhelming situation.” This court will not overturn the circuit court’s
findings at the disposition based on the record before us.

¶41 Nevertheless, H.C. argues that termination is inappropriate in John’s
case because, as a result of his medical conditions, John is unable to understand

15
No. 2023AP1950

and appreciate the difference between remaining under a CHIPS order or being
adopted, with the result being that termination ultimately provides no benefit to
him. We disagree that these considerations render John’s case any different from
that of any other child and require a conclusion that the circuit court erroneously
exercised its discretion when it found it was in John’s best interest to terminate
H.C.’s parental rights.

¶42 To be sure, John suffers from a number of medical conditions that,
for example, have resulted in his confinement to a wheelchair, have left him in
need of a feeding tube and on a liquid diet, and have left him nonverbal.
However, as the circuit court recognized, the legislature has provided an overall
purpose in these proceedings to provide stability and permanency to all children.
In fact, the stated purpose of “The Children’s Code” provides that it “shall be
liberally construed to effectuate the following express legislative purposes,”
including “[t]o promote the adoption of children into safe and stable families
rather than allowing children to remain in the impermanence of foster care” and
“[t]o allow for the termination of parental rights at the earliest possible time after
rehabilitation and reunification efforts are discontinued.” WIS. STAT.
§ 48.01(1)(gg), (gr). As we see it, John should be treated no differently in these
proceedings simply because he suffers from a variety of medical conditions that
have left him unable to appreciate and understand the proceedings with a capacity
that other children may have.

¶43 Consequently, we reject H.C.’s argument that the circuit court
erroneously exercised its discretion when it found that it was in John’s best
interest to terminate her parental rights.

16
No. 2023AP1950

CONCLUSION

¶44 This court concludes that due process requires that a burden of proof
be specified at the dispositional phase of a proceeding to terminate parental rights,
and we conclude that, under WIS. STAT. § 48.426, the best interest of the child
must be proven by a preponderance of the evidence. Nevertheless, this court also
concludes that the circuit court did not erroneously exercise its discretion at the
disposition hearing when it found that it was in John’s best interest to terminate
the parental rights of his mother, H.C. Accordingly, this court affirms the circuit
court’s order terminating H.C.’s parental rights to her son.

By the Court.—Order affirmed.

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

17