Waukesha County DH&HS v. A. T.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 2, 2025
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. 2025AP167 Cir. Ct. No. 2023TP9

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

WAUKESHA COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. T.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
CODY J. HORLACHER, Judge. Affirmed.
No. 2025AP167

¶1 GROGAN, J.1 Amber appeals from an order terminating her
parental rights to her six-year-old daughter, Holly.2 She argues the circuit court
erroneously exercised its discretion at the dispositional phase when it found it was
in Holly’s best interests to terminate Amber’s parental rights. Specifically, she
contends the court failed to sufficiently consider the substantial relationship factor
in its analysis as required by WIS. STAT. § 48.426(3).3 This court affirms.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.
2
This court uses pseudonyms for all parties identified herein for purposes of
confidentiality. See WIS. STAT. RULE 809.19(1)(g).
3
WISCONSIN STAT. § 48.426(3) provides that a circuit court “shall consider” the
following factors in “considering the best interests of the child”:

(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.

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No. 2025AP167

I. BACKGROUND

¶2 Holly was removed from Amber’s home4 when she was two years
old due to Amber’s substance abuse.5 The circuit court found Holly to be a child
in need of protection or services and over the course of the next four years, Holly
was placed in three different homes. Initially, Holly was placed with Amber’s
grandmother, Blanche, who lived across the street. A year later, Holly’s
placement was changed to another family member—Amber’s cousin. After
realizing that the cousin would not be able to provide the type of care Holly
needed, placement was subsequently changed to a non-related foster family, the
Rohls, where Holly remained until the County filed the Petition seeking to
terminate Amber’s parental rights (TPR).

¶3 The TPR Petition alleged two statutory grounds existed warranting
termination: (1) Holly continued to be a child in need of protection or services
because Amber failed to satisfy the conditions necessary for Holly to return to
Amber’s care, see WIS. STAT. § 48.415(2);6 and (2) Amber failed to assume

4
Holly’s father, whom Amber represented as her husband, also lived in the home;
however, he passed away in November 2021. Accordingly, this case involves only the
termination of Amber’s parental rights.
5
Amber had both drug and alcohol addictions.
6
WISCONSIN STAT. § 48.415 identifies ten grounds upon which termination of a parent’s
rights may be found. As applicable here, subsection (2) provides:

(2) CONTINUING NEED OF PROTECTION OR SERVICES.
Continuing need of protection or services, which shall be
established by proving any of the following:

(continued)

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No. 2025AP167

parental responsibility since the time Holly was removed from Amber’s home in
2020, see WIS. STAT. § 48.415(6).7 Amber contested the TPR and the grounds

(a) 1. That the child has been adjudged to be a child or an
unborn child in need of protection or services and placed, or
continued in a placement, outside his or her home pursuant to
one or more court orders under s. 48.345, 48.347, 48.357,
48.363, 48.365, 938.345, 938.357, 938.363 or 938.365
containing the notice required by s. 48.356 (2) or 938.356 (2).

2. a. In this subdivision, “reasonable effort” means an earnest
and conscientious effort to take good faith steps to provide the
services ordered by the court which takes into consideration the
characteristics of the parent or child or of the expectant mother
or child, the level of cooperation of the parent or expectant
mother and other relevant circumstances of the case.

b. That the agency responsible for the care of the child and
the family or of the unborn child and expectant mother has made
a reasonable effort to provide the services ordered by the court.

3. That the child has been placed outside the home for a
cumulative total period of 6 months or longer pursuant to an
order listed under subd. 1., not including time spent outside the
home as an unborn child; that the parent has failed to meet the
conditions established for the safe return of the child to the
home; and, if the child has been placed outside the home for less
than 15 of the most recent 22 months, that there is a substantial
likelihood that the parent will not meet these conditions as of the
date on which the child will have been placed outside the home
for 15 of the most recent 22 months, not including any period
during which the child was a runaway from the out-of-home
placement or was residing in a trial reunification home.
7
WISCONSIN STAT. § 48.415(6) identifies a failure to assume parental responsibility as a
ground for termination. It provides:

(a) Failure to assume parental responsibility, which shall be
established by proving that the parent or the person or persons
who may be the parent of the child have not had a substantial
parental relationship with the child.

(continued)

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No. 2025AP167

phase proceeded to a jury trial. The jury returned a unanimous verdict finding
both grounds existed to terminate Amber’s parental rights. Based on the jury’s
verdict, the circuit court found Amber unfit and the case proceeded to a
dispositional hearing. At the conclusion of that hearing, the court found it was in
Holly’s best interests to terminate Amber’s parental rights and it entered an order
to that effect. Amber now appeals.

II. DISCUSSION

¶4 The sole issue raised on appeal involves a challenge to the circuit
court’s decision on the best interests of the child after the dispositional hearing.
The TPR procedure and this court’s standard for reviewing a TPR are well-known
and need not be repeated here. See State v. Shirley E., 2006 WI 129, ¶¶26-28, 298
Wis. 2d 1, 724 N.W.2d 623 (explaining the two-step process consisting of the
grounds and dispositional phases and standards applicable to each phase); WIS.
STAT. §§ 48.415-48.427 (governing TPR procedure); State v. Margaret H., 2000
WI 42, ¶32, 234 Wis. 2d 606, 610 N.W.2d 475. (“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.”).

(b) In this subsection, “substantial parental relationship” means
the acceptance and exercise of significant responsibility for the
daily supervision, education, protection and care of the child. In
evaluating whether the person has had a substantial parental
relationship with the child, the court may consider such factors,
including, but not limited to, whether the person has expressed
concern for or interest in the support, care or well-being of the
child, whether the person has neglected or refused to provide
care or support for the child and whether, with respect to a
person who is or may be the father of the child, the person has
expressed concern for or interest in the support, care or well-
being of the mother during her pregnancy.

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No. 2025AP167

¶5 This court’s review is limited to determining whether the circuit
court erroneously exercised its discretion when it found that termination was in
Holly’s best interests. See Gerald O. v. Cindy R., 203 Wis. 2d 148, 152-53, 551
N.W.2d 855 (Ct. App. 1996). This court will not overturn the circuit court’s
discretionary decision unless it failed to consider the pertinent law, apply the law
to the relevant facts, and reach a reasonable determination. See Margaret H., 234
Wis. 2d 606, ¶32. In making the best interests determination at the dispositional
phase, the Record must reflect that the circuit court considered and gave weight to
each of the six enumerated statutory factors set forth in WIS. STAT. § 48.426(3).
Margaret H., 234 Wis. 2d 606, ¶35.

¶6 Amber concedes that the circuit court properly considered five of the
six WIS. STAT. § 48.426(3) factors. Her sole challenge is to the consideration and
weight the court gave to § 48.426(3)(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.”

¶7 Having reviewed the briefs and Record, this court concludes the
circuit court adequately considered and weighed the substantial relationships
statutory factor when it made its best interests decision. Because full context is
necessary to demonstrate the circuit court properly considered the substantial
relationships factor, this court sets forth the circuit court’s best interests analysis in
full, with emphases added to those portions directly relevant to WIS. STAT.
§ 48.426(3)(c):

When making a determination on this, the best interest
phase, Court is guided by 48.426(3) and the factors laid out
there.

I’ll start with the easy ones. The likelihood of adoption
if TPR is granted. Here, there’s unrefuted testimony that

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No. 2025AP167

the [foster parents] would be a likely adoptive resource if
TPR is to go forward. The duration of separation in this
matter is, for all intents and purposes, four years. It’s two-
thirds of [Holly’s] young life.

The more difficult factors, though, that this Court has
weighed throughout the duration of not only the case in
which we heard a lot of testimony this week, but also the
testimony of the witnesses today, that being the substantial
relationship with parent and family and whether or not that
would be harmful to sever that legal and emotional
relationship with the parent and with the extended family.
We’ve heard that [Holly] has stayed with her [great-]
grandmother, …. with other family members prior to being
placed at the placement where she is now with the [foster
parents].

She’s been with the [foster parents] for the last two
years. We know that both [paternal grandfather] and
[great-grandmother] continue to have visits with [Holly]
with her foster placement. We do know that [Amber] still
remains engaged in attempting visitations. There’s been a
lot of conversation back and forth about missed visits,
about those still being supervised visits, and those only
being once a week.

We do know that there is a relationship there; that
[Amber] is known as mama [Amber]; that [Holly] knows
that she is her mom and that she knows her [great-]
grandmother and her biological grandfather. The wishes
of the child. That’s also been testimony that’s kind of a
mixed bag. Here, because [Holly] is six years old, for all
intents and purposes, she cannot actually speak for herself.

We do know that she has told the [foster parents] that
she’s wanted to go home, meaning either with [Amber] or
with her [great-] grandmother. There’s some refuted
testimony as far as what that is. We know it’s happened a
couple of times. But again, [Holly]’s six years old and
much like any other six year old that has any type of
relationship with their parent, they -- there’s an instinctual
bond there.

It doesn’t matter facts of any case that are before you,
there’s always going to be a parent and child relationship.
Doesn’t matter how good that relationship is or how poor
the surrounding circumstances are. We do know that
[Amber] is in a better place than she’s likely been during
the pendency of this case. She has, again, for all intents
and purposes, worked on her addiction and seems to be,

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No. 2025AP167

based off of the UA’s, working to overcome that. That’s to
be commended, right. She’s done a lot of good work on
that.

She’s worked towards that sobriety, virtually on her
own, having reached out and trying to do what she could,
although certainly there were things, even as she has
indicated, she could’ve did differently, could’ve done
better. She has certainly undergone more trauma in the last
decade than a vast majority of people out there. Between
family deaths, addiction, and this and likely other traumas
that are not in evidence, she is working on herself as she
needs to and she should be commended for that.

Ultimately, the determination on this and what this
Court needs to rule on in 48.426(3) is not the best interest
of parents, but what’s in the best interest of the child. Here,
it’s [Holly]. So what evidence do we have here? The
conditions of current placement, likelihood of future
placement, results of prior placement.

We know that [Holly’s] had a rocky past. She’s been
moved from her [great-]grandmother’s to a biological
cousin’s place where she had an accident. I’m sure that
caused trauma. Now, she’s with the [foster parents] for
about the last two years. From all indications, the [foster
parents] are a fit and proper placement at this juncture.
They’ve taken care of her. They’ve tended to her medical
and educational needs and emotional.

They’ve brought her in, just as any other member of the
family. We know that there’s a bond between her and the
[foster parents’] other child, that of a brother sister.
Maybe not always the most smoothest of relationships, but
still, a very familial-like bond. The likelihood of future
placements. As what’s been testified to and this Court
certainly has no reason to refute it, if the TPR is denied,
where does [Holly] go?

[Holly] likely stays in the foster care system and doesn’t
realize permanency. We do have [Amber’s friend] who
took the stand both during the trial and today during the
dispositional hearing saying that she could stay with them;
however, [Amber’s friend] has not been cleared by the
department, hasn’t seen the department in four years. We
don’t have any sort of basis to believe that would be in her
best interest.

[Holly’s] moved around a lot in her young life. She
needs to find permanency. She needs to know at the end of

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No. 2025AP167

the day this is where she is. This is what the structure of
her life is. Based off of that, I do find that the factors do
weigh in favor of the termination of parental rights to give
[Holly] a more permanent setting based off of the other
outlined factors and the evidence that has been presented,
the testimony that’s been taken regarding the ability for
[Holly] to enter into a more permanent and stable living
environment and know where she’s going to be.

The unfortunate thing about this type of hearing is I
can’t order placement to ensure that relationship between
[Holly] and [Amber] continues. It’s this Court’s sincere
hope and desire it does. Unfortunately, it’s outside the
scope of the law that I’m given to be able to order that.
This case is four years in the making, four years worth of
upheaval for everybody, but particularly [Holly][.]

She knows, and she’s struggling with that. I sincerely
wish her, [Amber] and the [foster parents] all the best going
forward in the future and peace that comes with that. I do
find that it is in the best interest, again, to continue on with
the termination of parental rights.

Based off of today’s hearing, this Court finds that notice
has been given to all those entitled to notice. Provisions of
ICWA do not apply. The parents are [Amber and her
deceased husband].

There was no declaration of paternal interest. The
following grounds for termination of parental rights of
[Amber] were found to exist: Continuing need of
protection or services, as well as failure to assume parental
responsibility. [Amber] had this matter tried to a jury.
[Amber] was found unfit based off of the jury’s verdict.

This Court finds that it is in the best interest of the child
that the parental rights of [Amber] be terminated, after
considering the laid out factors. Reasonable efforts to
achieve the permanency goal for the permanency plan,
including through an out-of-state placement, if appropriate,
were made by the department or agency responsible for
providing services. The child is placed in an adoptive
resource home.

Court makes the finding that the placement of the child
in the parental home is contrary to the welfare of the child.
This Court orders that the parental rights of [Amber] are
hereby terminated and transferred, pending adoption, to the
State of Wisconsin. Information on any appeal shall be

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No. 2025AP167

released to the agency who has guardianship of the child.
This is the final order for purposes of appeal.

(Emphases added.)

¶8 This court notes that the law requires that “the record should reflect
adequate consideration of and weight to each factor[,]” but there is no required
formula as to which factor the circuit court must place the most emphasis.
Margaret H., 234 Wis. 2d 606, ¶35. Sometimes factors overlap and intertwine.
Here, the Record reflects the circuit court adequately considered each factor.

¶9 As it relates specifically to the issue Amber raises on appeal, the
circuit court considered the relationships Holly had with Amber and other family
members. While the court’s analysis may not have been extensive, it was
adequate given the specific factual circumstances of this case. Moreover, this
court notes that the statute does not require consideration of any and all family
relationships the child has, but rather only those that are substantial. See WIS.
STAT. § 48.426(3)(c). Presumably, this is because the legislature recognized that
when considering the best interests of the child, severing substantial relationships
could be harmful.

¶10 WISCONSIN STAT. § 48.426(3) does not define “substantial
relationships.” However, a related statute—WIS. STAT. § 48.415(6)(b)—defines a
similar phrase, “substantial parental relationship,” as “the acceptance and exercise
of significant responsibility for the daily supervision, education, protection and
care of the child.” Although § 48.415(6)(b) applies during the grounds phase
rather than the dispositional phase, it is nevertheless instructive in assessing what a
substantial relationship looks like under § 48.426(3)(c).

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No. 2025AP167

¶11 Amber contends that she had a substantial relationship with Holly
from the time of her birth until she was two years old and that she attempted to
maintain that relationship during the four years Holly was out of her home. Based
on the Record, it does appear that Amber had a substantial relationship with Holly
during the first two years of her life. The same cannot be said, however, of the
following four years when Holly was placed outside of Amber’s home. While
Amber may not have had an opportunity to “exercise significant responsibility”
for Holly’s care during those four years, see WIS. STAT. § 48.415(6)(b), she could
have taken all steps necessary to attend every single scheduled visit, particularly in
2024, but failed to do so.8 For example, the dispositional hearing transcript
indicates that at the time of the May 2024 hearing, Amber had already missed
seven visits in 2024, the Petition indicates that Amber missed or left
approximately one-third of her weekly visits with Holly early during the course of
her out-of-home placement, and the Record as a whole reflects that Amber’s
attendance at those visits was inconsistent and never progressed to more frequent
or unsupervised visits.

¶12 Likewise, the Record also reflects that aside from when Holly was
placed with her great-grandmother, Amber was generally uninvolved in Holly’s
medical care, dental care, and therapy and she did not request information about
those providers after Holly’s placement with her great-grandmother ended.

8
Had Amber consistently attended the supervised visits and met conditions required for
return, she could have progressed to more visits or unsupervised visits. The social worker
testified that when Holly was living with her great-grandmother just across the street from
Amber, visitation was inconsistent and occurred “when it was a convenient time for” Amber
“rather than what [Holly] needed.” When Holly lived with Amber’s cousin, Amber “attended
about 50 percent of visits in full[.]” In the two years Holly has lived with the foster parents,
Amber has missed “about one-third of” the visits, not counting the total lack of visits during the
months after Amber’s husband died.

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No. 2025AP167

Amber also had no knowledge of Holly’s more recent daycare attendance and did
not know the name of Holly’s current teacher, and it was only shortly prior to the
grounds trial that Amber learned where Holly attended school. The reason Amber
gave for not knowing any of this information is that she just did not ask for it.
Consequently, the Record clearly supports the conclusion that Amber did not have
a substantial relationship with Holly after Holly was removed from her home.

¶13 As for Holly’s other family relationships, the Record similarly
reflects no substantial relationships. At most, Amber brought Holly’s half-
brothers to the supervised visits once a month, which hardly supports any
suggestion that Holly had a substantial relationship with them.9 And, with respect
to Holly’s great-grandmother, testimony indicated she would have had a
substantial relationship with Holly during the year Holly was placed at her home.
However, after that placement ended in June 2021, Holly’s contact with her great-
grandmother was mostly limited to attending visits with Amber after her husband
died because Amber wanted her grandmother to come along to help. While the
exact dates of those visits are unclear, there was a period of time after Amber’s
husband passed away that there were no visits, and even once Holly’s great-
grandmother began attending visits with Amber, she did not attend weekly.

¶14 Having reviewed the Record, it is clear from the facts in this case
that the termination of Amber’s parental rights did not sever any substantial
family relationships—the only type of relationship that WIS. STAT. § 48.426(3)(c)
requires the circuit court to consider—and as set forth above, the only relationship

9
Amber testified at the grounds hearing that when Holly was placed with her cousin,
Holly would also see her half-brothers when the boys were racing go-carts. This, of course,
would not have been in the two years preceding the dispositional hearing.

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No. 2025AP167

that could have arguably fallen into that category (and it did not) would have been
with Amber.10 This court’s review therefore confirms that as is statutorily
required, the circuit court did consider and weigh the severing of Amber’s
relationship with Holly as required in ultimately finding that termination would
not harm Holly.11

¶15 Finally, although the circuit court did not explicitly state that it
would not “be harmful to sever” Amber’s relationship with Holly, the court’s
finding is readily discernable from the court’s decision. Specifically, the circuit
court indicated that without termination, Holly would be left in an indefinite state
of impermanency and instability, and it also emphasized that four years was a long
time for this six-year-old girl to be in that state. Despite Amber’s contention, this
case is simply not like State v. Bolstad, 2021 WI App 81, 399 Wis. 2d 815, 967
N.W.2d 164, in which this court reversed in a criminal case and remanded for
resentencing because there was “nothing in the record” to “discern” that the
sentencing court considered one of the three mandatory sentencing factors. Id.,
¶¶26-27. In reaching that conclusion, however, we also recognized that courts are
not required to use “magic words.” See id., ¶¶16, 23 n.7; see also State v. B.W.,
2024 WI 28, ¶78, 412 Wis. 2d 364, 8 N.W.3d 22 (requiring circuit courts to make
specific statements “would be requiring circuit courts to use ‘magic words’ to
exercise discretion appropriately[,]” which is discouraged).

10
There is nothing that would prevent the circuit court from specifically addressing other
familial relationships in making its determination; however, the statute requires only a
consideration of substantial relationships.
11
Like the circuit court, this court also hopes that Holly’s foster parents will follow
through with their indicated willingness to continue to allow Amber to have contact with Holly
following the termination of Amber’s parental rights.

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No. 2025AP167

¶16 Unlike in Bolstad, this court can discern from the circuit court’s
decision that it would not be harmful to sever Holly’s relationship with Amber.
And, as discussed, given the limited and inconsistent contact Amber had with
Holly, it would be difficult to identify the relationship as a substantial one. This,
combined with all the other statutory factors—particularly the opportunity for
Holly to find permanency and stability instead of having to continue to live in a
state of uncertainty—confirms there is no basis to reverse. See Lofthus v.
Lofthus, 2004 WI App 65, ¶21, 270 Wis. 2d 515, 678 N.W.2d 393 (appellate
courts “will search the record for reasons to sustain the trial court’s exercise of
discretion”).

¶17 TPR cases are unquestionably difficult, some more so than others,
and it is clear from this Record that at the time of the TPR grounds and
dispositional hearings, Amber desperately wanted to maintain her parental rights.
Her statement to the circuit court at the dispositional hearing genuinely expressed
her love for her daughter and her sincere efforts to overcome her personal life
traumas and substance abuse problem in order to be able to parent her child.
However, the dispositional hearing is not about Amber’s best interests but rather it
is about Holly’s best interests. See WIS. STAT. § 48.426(2) (“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.” (emphasis added)). Having
reviewed the circuit court’s decision, the briefs, and the Record, this court
concludes the circuit court adequately addressed all six statutory factors, including
the only one that Amber challenges in this appeal, and that it therefore properly
exercised its discretion when it found that it was in Holly’s bests interests to
terminate Amber’s parental rights.

By the Court.—Order affirmed.

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No. 2025AP167

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

15