Dane County v. J. B.

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.
July 25, 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. 2024AP985 Cir. Ct. No. 2023TP1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

DANE COUNTY,

PETITIONER-RESPONDENT,

V.

J.B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
EVERETT D. MITCHELL, Judge. Affirmed.
No. 2024AP985

¶1 NASHOLD, J.1 J.B. appeals an order terminating her parental
rights to her biological son, R.B. She argues that the circuit court erroneously
exercised its discretion in determining that termination was in R.B.’s best interests.
I reject J.B.’s argument and affirm.

BACKGROUND

¶2 J.B. is the biological mother of R.B., born in 2015. In 2019, a child
in need of protection or services (“CHIPS”) action was filed on behalf of R.B.
based on allegations that J.B. had neglected or abused R.B. on multiple occasions.
The CHIPS petition alleged, among other things, the following: J.B. had been
named as the alleged maltreater in fourteen child protective services reports
relating to R.B., these “reports indicated a pattern of angry and violent outbursts”
toward R.B. and others, and J.B. herself had reported thoughts of harming R.B.2
R.B. was ultimately placed outside of J.B.’s home by a CHIPS dispositional order
setting conditions that J.B. was required to meet before R.B. could be returned to
her care.

¶3 In January 2023, the County filed a petition commencing this
involuntary termination of parental rights (“TPR”) action against J.B. As grounds

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.
2
This description of the allegations in the CHIPS petition is taken from a summary of
the petition later filed with the circuit court, because the CHIPS petition itself is not in the record
on appeal. Indeed, it appears that no documents from the underlying CHIPS action were made
part of the record in this termination of parental rights action. Rather, in its filings before the
circuit court in this action, the County referred to docket entries in the underlying CHIPS action
without attaching the referenced documents themselves. I note that this practice may complicate
appellate review, because appellate courts do not have ready access to circuit court docket entries
that have not been made part of the record on appeal. However, in this appeal, the documents in
the CHIPS action are not directly pertinent to any issue raised.

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No. 2024AP985

for termination, the County alleged that J.B. had failed to meet return conditions
and R.B. was in continuing need of protection or services.3 See WIS. STAT.
§ 48.415(2)(a). The County also sought to terminate the parental rights of R.B.’s
biological father; however, R.B.’s father was killed in a shooting during the course
of the TPR proceeding.

¶4 The circuit court set a trial on the issue of grounds for termination.
In October 2023, the court held a pretrial hearing. J.B. did not appear at this
hearing, despite warnings that her failure to appear would result in default. Based
on J.B.’s nonappearance, the court held a default hearing, took evidence, and
determined that grounds for termination existed.4

¶5 The circuit court proceeded to schedule and hold a dispositional
hearing. During the hearing, the court received a report prepared by the Dane
County Department of Human Services recommending termination. The report
summarized the allegations of maltreatment that led to R.B.’s removal from J.B.’s
care in 2019, including an incident in which J.B. allegedly assaulted a medical
provider and fled, “dragging” R.B. along with her “like a rag doll.” The report
also stated, among other things, the following: J.B. had “experienced periods of

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 petitioner 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
petitioner proves that grounds exist, 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
See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶24, 246 Wis. 2d 1, 629 N.W.2d 768 (in a
TPR case, before entering default judgment against a parent on grounds for termination, the
circuit court must take evidence and find by clear and convincing evidence that grounds exist).
J.B. does not challenge the circuit court’s decision to grant default judgment against her at the
grounds phase.

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No. 2024AP985

homelessness” and had been “banned” from homeless shelters on multiple
occasions for reasons including “verbal and physical attacks” toward R.B. and
others; J.B. has an extensive criminal history including numerous battery charges;
and J.B. has failed to make progress “in managing her mental health, developing
effective coping skills, or utilizing support services consistently.”

¶6 During the hearing, the County called witnesses who testified to the
following. R.B. was placed with a foster family in January 2020 and has resided
with that family continuously since that time. The foster family loves R.B. and
has provided for R.B.’s needs. For example, the foster family has been involved
in obtaining an individualized education plan for R.B. and ensuring his
participation in individual therapy to address mental health concerns. The foster
family has another adopted son whom R.B. considers to be a brother. The foster
family is willing and able to adopt R.B.

¶7 According to a psychological evaluation, J.B. is diagnosed with
post-traumatic stress disorder and borderline personality disorder, and the
attachment between J.B. and R.B. is “insecure.” J.B. has not successfully
managed her mental health issues, causing her to have difficulties prioritizing and
meeting R.B.’s needs.

¶8 J.B. has had scheduled visits with R.B. since he was removed from
her custody in 2019. J.B. has not consistently attended scheduled visits. For
example, out of 28 scheduled visits between May and August 2022, nine were
converted to video visits at J.B.’s request, and J.B. failed to attend eleven of the
visits at all. J.B. was offered opportunities to increase the frequency of her visits,
but J.B. did not take advantage of those opportunities. The missed visits caused

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No. 2024AP985

R.B. to experience sadness and confusion, and occasionally to display physical
aggression.

¶9 For a short time, J.B.’s visits were “partially supervised,” but were
returned to full supervision after J.B. took R.B. to unplanned locations and
concerns arose that J.B.’s behavior was causing R.B. emotional distress.

¶10 J.B. testified to the following. She and R.B. have a “great
relationship” and they read and play together during visits. J.B. has a “stable
home” and is “mentally stable.” However, R.B.’s relationship with her is
“strained because of what we have been through with” child protective services.
J.B. has not attended R.B.’s medical or school appointments since he has been
placed with the foster family because, as she testified, “I didn’t feel like I had a
place there.”

¶11 In her closing remarks, R.B.’s guardian ad litem (“GAL”)
recommended termination.5 The GAL said that R.B. has developed an emotional
attachment to his foster family, and that “he could imagine himself living with the
[foster family] forever.” The GAL also said that, because J.B.’s contact was
“inconsistent and unpredictable,” R.B. has not been able to get “emotional
support” from her, and their “attachment is frayed.”

¶12 Applying the statutory best interest factors set forth in WIS. STAT.
§ 48.426, the circuit court determined that termination was in R.B.’s best interests
and issued an order terminating J.B.’s parental rights. J.B. appeals.

5
In this context, a GAL is an attorney appointed by the circuit court to represent a minor
child and to “be an advocate for the best interests of a minor child.” See WIS. STAT.
§ 767.407(1), (4).

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No. 2024AP985

DISCUSSION

¶13 J.B.’s sole argument is that the circuit court’s decision that
termination is in R.B.’s best interests was an erroneous exercise of discretion.6

¶14 At the dispositional phase of a TPR proceeding, the circuit court
determines whether termination of the parent’s parental rights is in the best
interests of the child, guided by the best interest factors set forth in WIS. STAT.
§ 48.426(3). See Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶¶29, 37,
255 Wis. 2d 170, 648 N.W.2d 402. These factors are: (a) the “likelihood of the
child’s adoption after termination”; (b) the “age and health of the child”;
(c) whether the child has “substantial relationships with the parent or other family
members,” and whether severing those relationships would harm the child; (d) the
“wishes of the child”; (e) the “duration of the separation of the parent from the
child”; and (f) whether the child can “enter into a more stable and permanent
family relationship as a result of the termination.” See § 48.426(3). The court’s
decision is discretionary and will be affirmed so long as the court “employs a
rational thought process based on an examination of the facts and an application of
the correct standard of law.” Julie A.B., 255 Wis. 2d 170, ¶43.

¶15 In its oral ruling, the circuit court addressed each of the best interest
factors. The court noted the foster family wished to adopt R.B., and would be able

6
In her appellant’s brief, J.B. also asserts that there was “insufficient evidence” to
support the circuit court’s determination. However, J.B. fails to develop a clear sufficiency
argument, and the County argues that J.B.’s challenge is “more accurately framed as a challenge
to the circuit court’s exercise of discretion.” J.B. does not respond to this argument in her reply
brief, and I deem it conceded. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39,
304 Wis. 2d 750, 738 N.W.2d 578 (a party’s failure to respond may be taken as a concession).

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No. 2024AP985

to do so upon termination of J.B.’s parental rights.7 The court considered R.B.’s
age and health, observing that he had endured “a lot of traumas,” including the
recent death of his father, for his young age. The court acknowledged that R.B.
and J.B. love one another, suggesting a substantial relationship between the two,
but said that there had not been evidence that J.B. had substantial relationships
with J.B.’s family members. The court said that R.B.’s wishes “were articulated
through” the GAL, who recommended termination. The court said that R.B. had
not “had long separations” from J.B. because there had been “some visits,” but
also that R.B. had lived with his foster family for four years, which was “almost
half of his life.”

¶16 The circuit court placed particular emphasis on the factor of whether
termination would permit the child to enter into a more stable and permanent
family relationship, saying that it took stability “very serious[ly].” The court said
that the events leading to R.B.’s removal from J.B.’s care had taken an “emotional
toll” on R.B. and that J.B. was not able to provide a stable home. The court said
that termination and subsequent adoption would give R.B. the “opportunity to be
in that stable place,” and that “time is of the essence” due to R.B.’s young age.

¶17 J.B. concedes that the circuit court considered the required best
interest factors, but argues that the “weighing was erroneous.” J.B. contends
“there is a substantial relationship between J.B. and R.B. that would lead to harm
in its severance,” and this constitutes “overwhelming evidence against granting

7
See WIS. STAT. § 48.81(3) (a child may be adopted if “[t]he parental rights of one of
the child’s parents with respect to the child have been terminated … and the child’s other parent
is deceased”).

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No. 2024AP985

termination.”8 However, even assuming that this factor weighs against
termination, the weighing of the factors is for the circuit court, not this court. See
State v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475 (this
court “cannot mandate the relative weight to be placed” on any best interest
factor). As noted above, the court appears to have acknowledged that J.B. and
R.B. had a substantial relationship, but determined that other factors weighed in
favor of termination. In particular, the court emphasized that stability was crucial
for R.B. given his young age and traumatic history, and that termination would
permit R.B. to be adopted into a more stable home than J.B. could provide. J.B.
does not argue that the court erred by determining that there was a high
“likelihood of adoption” and that adoption would permit R.B. to “enter into a more
stable and permanent family relationship.” See WIS. STAT. § 48.426(3)(a), (f).
Based on the record and the applicable law, the court was well within its discretion
to place heavy weight on these factors and to determine that the best interest
factors, on the whole, favored termination. Accordingly, J.B. has not shown that
the court erroneously exercised its discretion.

CONCLUSION

¶18 For all of these reasons, I affirm the circuit court’s order terminating
J.B.’s parental rights.

8
J.B. also contends that “positive interactions” between her and R.B. suggest that
termination of her parental rights is contrary to R.B.’s wishes. However, as noted above, the
circuit court appeared to determine that the wishes of the child favored termination, presumably
based on the GAL’s representation that R.B. could “imagine himself living with the [foster
family] forever.” J.B. does not argue that the court erred by doing so, nor does J.B. identify any
specific material in the record showing that termination was contrary to R.B.’s wishes.
Accordingly, to the extent that J.B. intends to argue that termination would be contrary to the
“wishes of the child,” see WIS. STAT. § 48.426(3)(d), I reject this argument as undeveloped.
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2024AP985

By the Court.—Order affirmed.

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

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