Barron County Department of Health and Human Services v. Q. 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.
June 13, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2023AP37 Cir. Ct. No. 2021TP18

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

BARRON COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

Q. B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Barron County:
J. MICHAEL BITNEY, Judge. Affirmed.
No. 2023AP37

¶1 STARK, P.J.1 Quan2 appeals an order terminating his parental
rights (TPR) to Nate. Quan argues that the circuit court erroneously exercised its
discretion by denying his request for a cautionary instruction after admitting
other-acts evidence during the grounds phase of his TPR jury trial. Quan contends
that the admission of the other-acts evidence without a cautionary instruction
warrants a new trial.

¶2 We assume without deciding that the circuit court erroneously
exercised its discretion by failing to give Quan’s requested cautionary instruction,
but we conclude that the error was harmless. Accordingly, we affirm.

BACKGROUND

¶3 In January 2021, a dispositional order was entered in a child in need
of protection or services (CHIPS) case based upon the circuit court’s finding that
three-year-old Nate was at risk of neglect pursuant to WIS. STAT. § 48.13(10) and
(10m). Nate was immediately removed from the care of his parents, Jill and Quan,
due to concerns regarding their drug use in their home. Nate has not returned to
either parent’s care since his initial removal.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be taken
in an order that ensures that a decision is issued within 30 days after the filing of the appellant’s
reply.” RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a delay. It is
therefore necessary for this court to sua sponte extend the deadline for a decision in this case. See
WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 694, 530
N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this decision is
issued.
2
For ease of reading, we refer to the appellant, the mother, and the child in this
confidential matter using pseudonyms, rather than their initials.

2
No. 2023AP37

¶4 In November 2021, the County filed a petition to terminate Quan’s
parental rights to Nate on the grounds of continuing CHIPS and failure to assume
parental responsibility.3 The petition alleged that Quan exposed Nate to a
hazardous living environment due to his admitted methamphetamine use in the
home and him leaving Nate in the care of an older child in the home for lengthy
periods of time. The petition set forth the following conditions from the
underlying CHIPS case that Quan was required to complete prior to reunification
with Nate: undergo individual counseling; meet with a psychiatrist; participate in
alcohol and other drug abuse (AODA) treatment; refrain from use of alcohol and
illegal drugs; complete drug tests; maintain safe and adequate housing; and
maintain regular contact and visitation with Nate.

¶5 Prior to trial, Quan and Jill both filed motions in limine asking the
circuit court to exclude “evidence of other alleged crimes, wrongs, or acts by
[Quan].” The court granted both motions. The court noted that it understood “the
parents’ concern about not being labeled or stereotyped or stigmatized as law
breakers or criminals” “because that can be hugely prejudicial to a jury.”

¶6 In August 2022, a two-day jury trial was held during which ten
witnesses testified. Amanda DeLawyer, the current social worker for the family,
testified that Quan and Jill had completed supervised visits since Nate’s removal.
She testified that Quan made a psychiatrist appointment in June 2021, but he never
shared with her any other psychiatric records. DeLawyer stated that on more than
one occasion, Quan removed his sweat patch used for drug testing without the

3
The County also petitioned to terminate the parental rights of Nate’s biological mother,
Jill. Her rights are not implicated in this appeal.

3
No. 2023AP37

County’s approval. She also stated that Quan had a number of housing issues,
including being evicted, being removed from a shelter twice due to his
methamphetamine use, and periods of homelessness. DeLawyer further testified
that she had monthly team meetings with Quan and his service providers.

¶7 Danielle Neurer, another social worker, testified to providing
transportation assistance and supervising weekly visits between Quan and Nate.
She also testified to administering sweat patch drug tests to Quan.

¶8 Ronald Lessard, a substance abuse counselor employed by the
County, testified that Quan admitted to using methamphetamine and marijuana
during the pendency of the CHIPS action. Lessard stated that testing revealed
Quan had continuously used drugs since Nate’s removal from Quan’s care.
Lessard testified that Quan was terminated from intensive AODA programming in
August 2021 because he was noncompliant, stopped attending group sessions as
scheduled, and continued to use both methamphetamine and THC. However,
Lessard also testified that Quan went through periods during treatment where there
was “some really significant change,” and he mentioned how Quan “talked about
being honest as really something to avoid continuous use.” Lessard referred to
this discussion as “a real breakthrough” and “insightful.”

¶9 During Lessard’s cross-examination, Quan’s lawyer asked Lessard if
he could speak about periods of sobriety during Quan’s life. In response, Lessard
stated, “I know that he has spent quite a bit of time incarcerated over the years.”
At the conclusion of Lessard’s testimony, Quan’s lawyer asked the circuit court
about providing a cautionary instruction to the jurors as to Lessard’s testimony
regarding Quan’s prior incarceration.

4
No. 2023AP37

¶10 The circuit court noted that Lessard’s comment about Quan’s
incarceration was brought out during his cross-examination by Quan’s lawyer and
that “it wasn’t something that was extensive,” nor did counsel object to or move to
strike it. The court recalled that Lessard made “some reference generally that part
of [Quan’s] periods of sobriety were because it was forced in nature because he
was confined and not able to use. Not necessarily a product of him being sober
and maintaining sobriety out in the public when he’s left to his own devices.” The
court determined that fashioning an instruction to address the testimony would
draw “more attention to it.” The court therefore denied Quan’s request for a
cautionary instruction. However, the court gave Quan’s lawyer the opportunity to
review Lessard’s testimony with the court reporter, and if the testimony was
significant in terms of the reason that Quan was in prison or the amount of time he
was there, the court stated that it would reconsider the issue. Quan did not raise
the issue again.

¶11 The jury returned a verdict finding that the County had established
both the continuing CHIPS and the failure to assume parental responsibility
grounds. The circuit court subsequently found Quan unfit as required by law.
After an October 2022 dispositional hearing, the court found that it was in Nate’s
best interest to terminate Quan’s parental rights. Quan now appeals.

DISCUSSION

¶12 Termination of parental rights proceedings involve a two-step
process: grounds and disposition. Oneida Cnty. Dep’t of Soc. Servs. v.
Nicole W., 2007 WI 30, ¶11, 299 Wis. 2d 637, 728 N.W.2d 652. The first step
involves a fact-finding hearing “to determine whether grounds exist for the
termination of parental rights.” Tammy W-G. v. Jacob T., 2011 WI 30, ¶18, 333

5
No. 2023AP37

Wis. 2d 273, 797 N.W.2d 854 (citing WIS. STAT. § 48.424(1)). If grounds exist
for the termination of parental rights, the second step in the process is for the
circuit court to hold a dispositional hearing, at which the focus is on the best
interests of the child. Sheboygan Cnty. Dep’t of Health & Hum. Servs. v.
Julie A.B., 2002 WI 95, ¶¶28, 38, 255 Wis. 2d 170, 648 N.W.2d 402.

¶13 Quan’s arguments center on the first step in the TPR
process: whether grounds existed to terminate his parental rights to Nate. He
argues that he is entitled to a new trial because the circuit court erroneously
exercised its discretion by denying his request for a cautionary jury instruction
when other-acts evidence and damaging character evidence were introduced
through Lessard’s testimony.

¶14 “A court has broad discretion in deciding whether to give a
particular jury instruction.” State v. Hubbard, 2008 WI 92, ¶23, 313 Wis. 2d 1,
752 N.W.2d 839. “A discretionary decision will be sustained if the circuit court
has examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Hefty v. Strickhouser, 2008 WI 96, ¶28, 312 Wis. 2d 530, 752 N.W.2d
820 (citation omitted). An error related to refusing to give a jury instruction is not
prejudicial “if it appears that the result would not be different had the error not
occurred.” Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶11, 356
Wis. 2d 1, 850 N.W.2d 160 (citation omitted).

¶15 Both parties agree that Lessard’s testimony referencing Quan’s prior
incarceration constituted other-acts evidence. See WIS. STAT. § 904.04(2) (stating
that “evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity

6
No. 2023AP37

therewith”). We therefore assume without deciding that the testimony constituted
other-acts evidence.

¶16 Quan argues that the other-acts evidence was unfairly prejudicial. In
response, the County requests that we conduct a State v. Sullivan, 216 Wis. 2d
768, 772-73, 576 N.W.2d 30 (1998) (holding that the probative value of the
other-acts evidence must not be substantially outweighed by the danger of unfair
prejudice) analysis as to the evidence’s admissibility. However, we conclude that
Quan forfeited his objection to the admission of the other-acts evidence, and what
he also refers to as character evidence, because he did not object to the evidence or
move to strike it during the trial. See State v. Marinez, 2011 WI 12, ¶49, 331
Wis. 2d 568, 797 N.W.2d 399 (ruling that an individual must object at the time of
alleged errors or forfeit the right to review on appeal).

¶17 Quan nevertheless argues that he made a timely request for a
cautionary instruction regarding the other-acts evidence. He contends that WIS.
STAT. § 901.06 requires that the circuit court provide a cautionary instruction to
the jury, when requested, if evidence has been admitted for a limited purpose.
That statute provides that “[w]hen evidence which is admissible as to one party or
for one purpose but not admissible as to another party or for another purpose is
admitted, the judge, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.” Sec. 901.06.

¶18 Here, the circuit court recalled that when asked about Quan’s history
of sobriety, Lessard made “some reference generally that part of [Quan’s] periods
of sobriety were because it was forced in nature because he was confined and not
able to use. Not necessarily a product of him being sober and maintaining sobriety
out in the public when he’s left to his own devices.” Thus, Lessard’s evidence

7
No. 2023AP37

regarding Quan’s prior periods of incarceration was admissible for the limited
purpose of showing that some of Quan’s periods of sobriety were not due to
voluntary abstinence, but were instead forced.

¶19 Quan nevertheless, argues that the admission of the incarceration
evidence violated the spirit, if not the mandate, of the circuit court order granting
his motion in limine preventing the admission of evidence of other alleged crimes,
wrongs, or acts by Quan. Accordingly, Quan contends that the court was required
to provide the following cautionary instruction to the jury:

Evidence has been presented regarding other conduct of the
defendant for which the defendant is not on trial.
Specifically, evidence has been presented that the
defendant [was previously incarcerated]. If you find that
this did occur, you should consider it only on the issue
of….

You may not consider this evidence to conclude that the
defendant has a certain character or a certain character trait
and that the defendant acted in conformity with that trait or
character with respect to the offense charged in this case.

See WIS JI—CRIMINAL 275 (2018).

¶20 For the purpose of our decision, we assume without deciding that the
circuit court erroneously exercised its discretion by failing to give Quan’s
requested cautionary instruction. We conclude, however, that the error was
harmless.

¶21 The harmless error analysis is applicable in TPR proceedings. See
Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768.
Whether “a circuit court has committed an error in failing to give a jury
instruction” is subject to the harmless error analysis, and “we must assess whether
the substantial rights of the [individual] have been affected.” State v. Head, 2002

8
No. 2023AP37

WI 99, ¶44, 255 Wis. 2d 194, 648 N.W.2d 413; see also State v. Hunt, 2014 WI
102, ¶21, 360 Wis. 2d 576, 851 N.W.2d 434 (holding that a “circuit court’s
erroneous exercise of discretion in admitting evidence is subject to the harmless
error rule”). Whether an error is harmless presents a question of law that we
review de novo. Hunt, 360 Wis. 2d 576, ¶21.

¶22 An error is harmless if it is clear beyond a reasonable doubt that a
rational jury would have reached the same result absent the error. See State v.
Tucker, 2003 WI 12, ¶26, 259 Wis. 2d 484, 657 N.W.2d 374. “The goal of the
harmless error rule is to ‘inject reasoned judgment … into appellate review’ to
ensure retrials occur only when the error actually affected the original trial.” State
v. Monahan, 2018 WI 80, ¶34, 383 Wis. 2d 100, 913 N.W.2d 894 (citations
omitted). The error in question must affect a party’s substantial rights.

No judgment shall be reversed or set aside or new trial
granted in any action or proceeding on the ground of
selection or misdirection of the jury, or the improper
admission of evidence, or for error as to any matter of
pleading or procedure, unless in the opinion of the court to
which the application is made, after an examination of the
entire action or proceeding, it shall appear that the error
complained of has affected the substantial rights of the
party seeking to reverse or set aside the judgment, or to
secure a new trial.

WIS. STAT. § 805.18(2) (emphasis added). “For an error to affect the substantial
rights of a party, there must be a reasonable possibility that the error contributed to
the outcome of the action or proceeding at issue.” Evelyn C.R., 246 Wis. 2d 1,
¶28.

¶23 We conclude that any error on the part of the circuit court by failing
to provide a cautionary instruction to the jury did not affect Quan’s substantial
rights or the outcome of the trial. See id. As the County notes, it is virtually

9
No. 2023AP37

undisputed that the County proved the continuing CHIPS ground.4 The continuing
CHIPS ground requires the petitioner to prove:

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 ….

2.

….

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.

WIS. STAT. § 48.415(2)(a). For purposes of the continuing CHIPS ground,
“reasonable effort” means “an earnest and conscientious effort to take good faith
steps to provide the services ordered by the court,” taking into consideration the

4
The County argues that it proved the ground of failure to assume parental responsibility
as well. We decline to address this issue because the County proved the continuing CHIPS
ground, and only one ground is required for a TPR. See Steven V. v. Kelley H., 2004 WI 47, ¶24,
271 Wis. 2d 1, 678 N.W.2d 856 (stating that petitioner must prove that one or more of the
statutory grounds for a TPR exist); Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559
(Ct. App. 1983) (holding an appellate court need not address every issue raised by the parties
when one issue is dispositive).

10
No. 2023AP37

characteristics of the parent or child, the parent’s level of cooperation, and other
relevant circumstances of the case. Sec. 48.415(2)(a)2.a.

¶24 The circuit court answered the verdict question regarding the first
element of the continuing CHIPS ground as a matter of law, as it was undisputed
that, at the time of trial, Nate had been removed from Quan’s home for over
eleven months. As to the second element, the County presented evidence
regarding the reasonable efforts that it provided to reunite Nate with Quan. Neurer
testified that she provided transportation assistance, visitation assistance, and
administered Quan’s drug testing. DeLawyer testified that she had monthly
meetings with Quan and his service providers. Lessard testified as to efforts to
provide Quan with treatment. There is no reasonable probability that the jury’s
answer to the verdict question regarding the County’s reasonable efforts was
affected by testimony regarding Quan’s prior incarceration, as it was clear from
Lessard’s testimony that Quan’s periods of incarceration occurred prior to entry of
the CHIPS order.

¶25 For the third element, the County proved that Nate had been placed
outside of the home for more than six months, and the evidence supports the jury’s
finding that Quan failed to meet the conditions established in the CHIPS order for
Nate’s return. Lessard testified that Quan failed to complete the AODA treatment
program required under his CHIPS order. Quan was expected to comply with
drug testing, yet DeLawyer testified as to Quan’s unapproved removal of the
sweat patches used for drug testing. Quan was required to refrain from the use of
illegal drugs, yet Lessard testified not only that Quan had admitted to
methamphetamine use, but also that Quan’s drug use was continuous based on the
results of his drug testing after Nate’s removal. And, although Quan was also
expected to maintain safe and adequate housing, DeLawyer testified that Quan

11
No. 2023AP37

faced numerous issues with his housing, such as being evicted, being removed
from a shelter twice due to his methamphetamine use, and periods of
homelessness. Based on this evidence, the jury could reasonably conclude that
Quan failed to meet the conditions required for Nate’s return. Quan does not
argue otherwise. Evidence about Quan’s incarceration predating the CHIPS order
would not have affected the jury’s finding in this regard.

¶26 Quan argues there is a risk that, after “learning that a parent had
been incarcerated ‘quite a bit’ over the course of his life,” a jury “would tend to
conclude that the parent was not fit to parent regardless of the issues in the case.”
Quan further argues that, absent a cautionary instruction, the testimony about his
incarceration “was allowed to resonate wholly unfettered in the jurors’
consciousness.” However, as noted, the evidence supporting the termination of
Quan’s parental rights under the continuing CHIPS ground was virtually
undisputed. We agree with the circuit court that Lessard’s brief testimony about
Quan’s incarceration prior to the entry of the CHIPS order “wasn’t something that
was extensive.” There is no question that the jury would have reached the same
result absent Lessard’s incarceration testimony and, thus, that testimony did not
affect Quan’s substantial rights. We therefore conclude that any error by failing to
provide a cautionary instruction to the jury regarding the other-acts evidence was
harmless, as it did not affect the outcome of the trial.

By the Court.—Order affirmed.

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

12