State v. E. S.

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.
May 21, 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 Nos.
2024AP395 Cir. Ct. Nos. 2022TP74
2022TP75
2024AP396
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

APPEAL NO. 2024AP395

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

E.S.,

RESPONDENT-APPELLANT.
Nos. 2024AP395
2024AP396

APPEAL NO. 2024AP396

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

E.S.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.

¶1 DONALD, P.J.1 Emily appeals from circuit court orders
terminating her parental rights to her children, Nicole and Zachary.2 Emily argues
that the circuit court erroneously exercised its discretion when it determined that
the termination of Emily’s parental rights was in the best interests of the children.
Specifically, Emily argues that there is insufficient evidence to support the circuit
court’s findings that the children did not have substantial relationships with Emily
and that the children were too young to express their wishes. For the following
reasons, this court affirms the circuit court’s orders.

1
These appeals are 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
For ease of reading, the individuals in this confidential matter are referred to using
pseudonyms. See WIS. STAT. RULE 809.19(1)(g).

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BACKGROUND

¶2 On April 22, 2022, the State filed petitions to terminate Emily’s
parental rights to Nicole and Zachary. 3 The State alleged that Nicole and Zachary
were children in need of continuing protection or services pursuant to WIS. STAT.
§ 48.415(2) and Emily failed to assume parental responsibility pursuant to
§ 48.415(6).

¶3 The circuit court held a three-day jury trial starting on March 20,
2023. At trial, Emily, the initial assessment supervisor, a psychologist, the
ongoing case managers,4 and the ongoing case supervisor testified. Ultimately, the
jury found that the State had proven the grounds it had alleged to terminate
Emily’s parental rights. The circuit court then granted judgment on the jury’s
verdicts and found Emily unfit under WIS. STAT. § 48.424(4).

¶4 The circuit court then proceeded to the dispositional phase of the
termination of parental rights proceedings. The circuit court heard testimony from
the foster mother for the children, the current ongoing case manager, and Emily.
After reviewing the testimony and evidence, the circuit court concluded that it was
in the best interests of Nicole and Zachary to terminate Emily’s parental rights.

¶5 In its decision, the circuit court emphasized portions of testimony
from the jury trial and dispositional hearing that it felt were particularly important
to the disposition. The circuit court noted how this case started in July of 2020

3
The State also sought to terminate the parental rights of the children’s father; however,
the father’s rights are not at issue in this appeal.
4
The ongoing case manager who was first assigned this case in September of 2020 and
the current case manager, who was assigned this case in January of 2023, testified.

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with concerns about Emily’s mental health, including anxiety, depression, and
anger. The circuit court highlighted the initial assessment supervisor’s testimony
that when the children were living with Emily they were “filthy” and living in
“deplorable” conditions in a house that was ready to be condemned. The circuit
court discussed the testimony of the psychologist who did a standard evaluation of
Emily and testified that Emily struggled with post traumatic stress disorder that
caused symptoms including paranoia and auditory hallucinations.

¶6 The circuit court went on to discuss how both the current ongoing
case manager and ongoing case supervisor testified to concerns with Emily’s visits
with Nicole and Zachary. The circuit court noted that visitations are foundational
to determining the disposition. The ongoing case supervisor was concerned with
the lack of progress with Emily’s visits, the amount of prompting Emily needed
from visitation workers, and the number of visits Emily missed. The current
ongoing case manager testified that many of these visits were “chaotic” and
explained that Emily often became frustrated during visits, yelled at the children,
and cried.

¶7 Furthermore, the circuit court discussed how the visitation notes
indicated that Emily did not have age appropriate expectations of the children,
which was demonstrated by Emily’s comments and conversations with the
children that they were too young for. For example, Emily would “vent” to Nicole
about bills and rent. Additionally, Emily would threaten to cancel visits if the
children did not listen to her and stop “making her look bad.”

¶8 The circuit court also considered Emily’s testimony and found her
“for the most part, credible.” The circuit court discussed how Emily had lacked
the resources to care for herself and the children, and recognized that Emily had

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recently made progress by getting a job and securing safe housing stocked with
food and toys for Nicole and Zachary.

¶9 The circuit court then made findings with respect to each factor in
WIS. STAT. § 48.426(3) for each child and found that all of the factors either
weighed in favor of termination or were neutral. The circuit court discussed how
Nicole and Zachary had been out of Emily’s care for about thirty-two months and
were very healthy but had some behavioral issues that the foster mother was aware
of and has made efforts to remedy. The circuit court found that adoption by the
foster mother “[is] as certain as anything can be certain in life[.]” The circuit court
considered the children’s wishes and found that both Nicole and Zachary were too
young to express their wishes. Furthermore, the circuit court looked at Nicole’s
and Zachary’s relationship with Emily and found that these relationships were not
substantial ones. Instead, the circuit court characterized Emily’s role in her
relationships with both children as that of a visitor. Consequently, the circuit court
found that there would be no harm in legally severing these relationships.

¶10 Additionally, the circuit court found that the termination of Emily’s
parental rights would allow Nicole and Zachary to enter into more permanent and
stable family relationships. The circuit court discussed how there are many
conditions that Emily would have to meet before the children could be returned to
her, including addressing her mental health. The circuit court emphasized that
uncertainty is never in a child’s best interest and it is unclear when and if Emily
would be able to address the necessary conditions for the children’s return to her
custody. The circuit court found that the stability and permanence offered by the
foster mother was in the best interests of the children. Ultimately, after
considering all of the factors, the circuit court held that termination of Emily’s
parental rights was in the best interests of Nicole and Zachary.

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¶11 Emily now appeals the circuit court’s orders.

DISCUSSION

¶12 Emily’s arguments take issue with the second phase of termination
of parental rights proceedings, the dispositional phase.5 At the dispositional phase,
the circuit court must consider the evidence and make a record that “reflect[s]
adequate consideration of and weight to each factor” in WIS. STAT. § 48.426(3).
State v. Margaret H., 2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475;
Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶29, 255 Wis. 2d 170, 648
N.W.2d 402. These factors include 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.

5
“[A] contested termination proceeding involves a two-step procedure. The first step is
the fact-finding hearing ‘to determine whether grounds exist for the termination of parental
rights.’” Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d
402 (citation omitted). “When the fact-finding step has been completed and the court has made a
finding of unfitness, the proceeding moves to the second step, the dispositional hearing.” Id.,
¶28.

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Sec. 48.426(3). The primary focus in the dispositional phase is on the best
interests of the child. Julie A.B., 255 Wis. 2d 170, ¶28.

¶13 Emily argues the circuit court erroneously exercised its discretion
asserting that there was insufficient evidence to support the circuit court’s findings
on the third and fourth statutory factors enumerated in WIS. STAT. § 48.426(3).
Although we only individually address the factors Emily challenges, our
independent review of the records confirms that the circuit court adequately
considered all of the statutorily required factors. We conclude that the circuit
court’s findings concerning the children’s wishes and the lack of substantial
relationships between Emily and both children are sufficiently supported by the
records.

¶14 The circuit court exercises its discretion by weighing factors at the
dispositional hearing to make its ultimate determination of whether to terminate
parental rights. Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d 855
(Ct. App. 1996). Wisconsin law does not “mandate the relative weight” to be
placed on any particular factor. Margaret H., 234 Wis. 2d 606, ¶29. “An
appellate court will sustain the circuit court’s ultimate determination in a
proceeding to terminate parental rights if there is a proper exercise of discretion.”
Id., ¶32.

¶15 “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.”
Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d
198. “We will search the record for reasons to sustain the [circuit] court’s exercise

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of discretion.” Lofthus v. Lofthus, 2004 WI App 65, ¶21, 270 Wis. 2d 515, 678
N.W.2d 393.

¶16 Emily argues that there is insufficient evidence supporting the circuit
court’s finding that Emily’s relationships with the children were not substantial
ones. See WIS. STAT. § 48.426(3)(c). Specifically, the circuit court found that
Emily’s and the children’s relationships were not substantial; instead, their
relationships were a “visitation type of a relationship, and that is it.” Emily points
to her own testimony regarding her relationships with Nicole and Zachary and
argues that the circuit court should have relied on her testimony to find that she
and the children had substantial relationships. Emily testified that the children
called her “mommy,” wanted to live with her, that she successfully fought for an
extra visitation day, and that she provided for the children’s care prior to their
removal.

¶17 The circuit court explained, and the records support, that Nicole and
Zachary had been out of Emily’s care for about thirty-two months and all of the
children’s daily supervision, care, support, education, and needs were met by the
foster mother. The foster mother also testified about her bond with the children
and that the children called her “mom.”6

¶18 Furthermore, Emily’s visits with the children never progressed from
supervised to unsupervised and Emily also missed and left visits early.
Additionally, the current ongoing case manager testified that Emily struggled to
manage the children during her supervised visits. The circuit court highlighted the

6
The circuit court found the foster mother’s testimony “very, very credible” and
acknowledged that the children call both Emily and the foster mother “mom.”

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current ongoing case manager’s testimony describing Emily’s visits with Nicole
and Zachary as “chaotic,” and that Emily and the children would often get
frustrated. For instance, the circuit court noted one visit in particular “where
things got out of control. The kids were crying, [and] [Nicole] was hiding behind
a chair.” Similarly, the foster mother testified that Nicole and Zachary exhibited
increased behavioral issues after visits with Emily.

¶19 Emily concedes that the current ongoing case manager’s “testimony
provided some evidence that [Nicole] and [Zachary] did not have [a] significant
emotional bond with [Emily].” However, Emily contends that the case manager’s
testimony is inadequate in light of Emily’s testimony supporting the contrary
finding because the case manager had only been working on this case for about
three months.

¶20 Emily’s contention with the case manager’s testimony requires this
court to judge the case manager’s credibility and weigh her testimony against
Emily’s. This court does not review the weight of testimony and credibility of
witnesses. Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980).
“[T]he trial judge, when acting as the factfinder, is considered the ‘ultimate arbiter
of the credibility of a witness,’ and [their] finding in that respect will not be
questioned unless based upon caprice, an abuse of discretion, or an error of law.”
Id. at 152 (quoting Posnanski v. City of West Allis, 61 Wis. 2d 461, 465, 213
N.W.2d 51 (1973)).

¶21 The circuit court was clear that it found the current ongoing case
manager “very credible” and Emily “for the most part, credible.” Furthermore, the
circuit court recognized that the current ongoing case manager had “only been on
the case for three months, and a lot of her information necessarily comes from the

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case notes.” Emily does not argue that the circuit court’s credibility findings were
based upon caprice, an abuse of discretion, or an error of law, so we will defer to
the circuit court’s determinations. See Johnson, 95 Wis. 2d at 151-52
(“[D]eference to the [circuit] court’s determination of the credibility of witnesses
is justified … because of the superior opportunity of the [circuit] court to observe
the demeanor of witnesses and to gauge the persuasiveness of their testimony.”
(Quotation omitted.)). Ultimately, when taking the ongoing case manager’s
testimony into account, there is sufficient evidence to support the circuit court’s
finding that Emily and the children did not have substantial relationships.

¶22 Emily also argues that the circuit court did not consider the harm to
be caused to Nicole and Zachary by the severance of their legal relationships with
Emily. “Under [WIS. STAT. § 48.426(3)(c)], the circuit court must evaluate the
existence of ‘substantial relationships’ between a child and the child’s family, and
then gauge whether the child will suffer harm from a severance of those
relationships.” Margaret H., 234 Wis. 2d 606, ¶16.

¶23 After reviewing the records, it is clear that the circuit court
considered whether Nicole and Zachary would suffer harm caused by severance of
the children’s legal relationship with Emily. The circuit court laid out its
reasoning for why Emily and the children did not have substantial relationships
and instead had “visitation type” relationships. The circuit court then considered
the foster mother’s testimony that, if she adopted Nicole and Zachary, she would
try to keep Emily in the children’s lives by continuing visits and going on family
outings. See id., ¶29 (“In its discretion, the [circuit] court may afford due weight
to an adoptive parent’s stated intent to continue visitation with family members.”).
Ultimately, the circuit court found that “it would not be harmful to the children to
sever these relationships.” Therefore, we conclude that the circuit court

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adequately considered this factor by gauging whether the children would suffer
harm from the legal severance of their relationship with Emily.

¶24 Finally, Emily argues that the circuit court’s finding that both
children were too young to meaningfully express their wishes was insufficiently
supported by the evidence because Emily’s own testimony that both children
expressed a desire to come live with her was “uncontroverted.”

¶25 There is no bright-line rule that governs what age a child is able to
understand termination of parental rights proceedings and meaningfully convey
their wishes regarding whether they would rather be adopted or live with their
biological parents. Nicole and Zachary were both young, five years old and three
years old respectively, at the time of the dispositional hearings. Notably, the
current ongoing case manager testified that neither of the children were old
enough to understand adoption and viewed their home as their current placement
with their foster parents. The circuit court found the current ongoing case
manager’s testimony “very credible.” This evidence is sufficient to support the
circuit court’s finding that Nicole and Zachary were too young to express their
wishes.

CONCLUSION

¶26 After reviewing the records, it is clear that the circuit court did not
erroneously exercise its discretion when it determined that terminating Emily’s
parental rights was in Nicole’s and Zachary’s best interests. The circuit court
examined the relevant facts, applied the proper standard of law and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach. See Mable K., 346 Wis. 2d 396, ¶39. Accordingly, we affirm.

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By the Court.—Orders affirmed.

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

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