Sheboygan County DH & HS v. J. L.

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.
January 3, 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. 2023AP1884 Cir. Ct. No. 2022TP14

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

SHEBOYGAN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

J.L.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Sheboygan County:
KENT R. HOFFMANN, Judge. Affirmed.
No. 2023AP1884

¶1 GROGAN, J.1 J.L. appeals from an order terminating his parental
rights to his daughter, Grace.2 J.L. asserts there was insufficient evidence from
which the circuit court could conclude that termination was in Grace’s best
interests and that the court therefore erroneously exercised its discretion in the
disposition phase of these proceedings when it found that termination was in
Grace’s best interests. This court affirms.

I. BACKGROUND

¶2 Grace was born in December 2018 to A.P. and J.L., who were not
married. Grace and A.P. tested positive for methamphetamines at Grace’s birth,
which led to an investigation as to whether Grace could go home with her parents.
Grace’s maternal grandmother initially took Grace into her home as part of
Grace’s protective placement plan. However, the Sheboygan County Department
of Health and Human Services (Department) took temporary physical custody of
Grace after approximately one month and placed her with a great aunt (Evelyn)
and the aunt’s spouse (Oliver) instead.3 The Department thereafter filed a petition
alleging Grace was a child in need of protection or services (CHIPS), and in
September 2019, the circuit court found Grace to be in need of protection or
services and set conditions to be met before Grace could be returned home.

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
Grace is a pseudonym used for purposes of confidentiality. See WIS. STAT.
§ 809.81(8).
3
Evelyn and Oliver are also pseudonyms.

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No. 2023AP1884

¶3 J.L. did not satisfy the conditions for Grace’s return. Although he
had supervised visits with Grace approximately once a week, he sometimes did
not attend, arrived late, or showed up unexpectedly. As a result of these
inconsistencies—as well as J.L.’s failure to maintain contact with Janna
Harrington, the assigned social worker, and failure to keep scheduled
appointments with the Department—Harrington suspended J.L.’s visits with Grace
in August 2021. Harrington informed J.L. that he needed to meet with her in order
to resume visits, which never occurred. Consequently, in June 2022, the
Department filed a petition seeking to terminate J.L.’s parental rights.4

¶4 Although J.L. initially contested the petition, he ultimately stipulated
that grounds existed to terminate his parental rights. His challenge to the petition
came only at the April 2023 dispositional hearing, where he argued it was not in
Grace’s best interests to terminate his parental rights.

¶5 Only two witnesses testified at the dispositional hearing:
(1) Harrington; and (2) J.L. At the hearing, J.L. argued he had a substantial
relationship with Grace and testified about his contacts with her, the presents he
sent her, and stated that he loved her. He also told the court he would do anything
to get her back, including remaining sober. J.L. admitted that when the supervised
visits were suspended in August 2021, he had no further contact with Grace but
insisted it was because Harrington had told him he could not contact Grace or her
foster parents. Harrington’s testimony contradicted this.

4
The petition also sought to terminate A.P.’s parental rights. This appeal, however,
concerns only J.L.

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No. 2023AP1884

¶6 Harrington testified that J.L. stopped showing up for supervised
visits for a number of reasons, and when he did come, he brought Grace sugary
foods—despite being told not to because it gave Grace stomachaches. Harrington
placed the visits on hold in August 2021 because J.L. was: (1) not honoring the
visitation schedule; (2) showing up when not expected; (3) not giving proper
notice for his visits; and (4) not having “meaningful interaction” with Grace when
he did visit. Harrington also had concerns about J.L.’s noncooperation with her in
regard to developing a “family interaction plan[.]” Harrington further testified
that, at times, she could not find J.L., he failed to respond to her efforts to reach
him, and she had concerns about illegal drug use.

¶7 Harrington met with J.L. in 2022 when he was incarcerated. At that
meeting, Harrington shared the rules J.L. needed to follow to resume visitation
with Grace, and J.L. signed a stipulation as “to what needed to be taken care of for
him to resume seeing [Grace].” Visitation never resumed.

¶8 When asked about the substantial relationship factor (e.g., whether
Grace had a substantial relationship with J.L.), Harrington testified she did not
think it would be harmful to sever Grace’s relationship with him. When asked
why she had that opinion, Harrington said:

I have that opinion because over the course of supervising
this case and managing [Grace’s] case they have not -- they
have not, um, been in a role to make good decisions for her,
to provide for her educational needs, her protection needs.
They struggle to take care of themselves. Um, there has
been over the course of the years struggles with criminal
charges and incarcerations. They don’t ask about [Grace],
um, how she’s doing, what she likes to eat, what she likes
to do, how her health is. They like to see her, but other
than that there is not much more as far as [J.L.] and [A.P.]
being in a protective parental role over [Grace]. I’ve seen
[J.L.] many times at the Sheboygan County Detention
Center and not once has he asked me how [Grace] is doing.

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No. 2023AP1884

He hasn’t written me, he doesn’t write [Grace]. I’m aware
he called a couple days ago to speak to [Grace], but that’s
it. In the four years he’s never called once to [the home
where Grace is living] to check on her, to see how she’s
doing, to see what he could do to help out to parent her.

¶9 Harrington also testified that Grace never lived with J.L. during the
four years of her life and that she “shared with [J.L. that] he could write [Grace]
and he never did that.” When asked about whether she was clear with J.L. about
the conditions he needed to meet to get Grace back—that he needed to get clean
and sober and take parenting classes—Harrington explained that she either could
not find J.L. or “he was irate, irritable, difficult, very difficult, resistive.” When
Harrington offered free services to assist J.L. in meeting these conditions, he
refused them. At the conclusion of the hearing, the circuit court found that it was
in Grace’s best interests to terminate J.L.’s parental rights. J.L. appeals.

II. DISCUSSION

¶10 J.L. raises a single issue in his appeal, namely, that the circuit court
erroneously exercised its discretion when it found that it was in Grace’s best
interests to terminate his parental rights because, he says, he had a substantial
relationship with Grace, and the circuit court should have placed more weight on
that factor.

¶11 J.L. stipulated that grounds existed to find him to be an unfit parent,
and therefore, this appeal only involves review of the circuit court’s determination
at the dispositional hearing. At the dispositional hearing, which occurs once
grounds for termination of parental rights are found to exist, WIS. STAT.
§ 48.424(4), the circuit court determines whether the best interests of the child
warrant termination of parental rights. WIS. STAT. §§ 48.427, 48.426(2) (“The
best interests of the child shall be the prevailing factor considered by the court in

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No. 2023AP1884

determining the disposition of all proceedings under this subchapter.”); see also
Richard D. v. Rebecca G., 228 Wis. 2d 658, 672–73, 599 N.W.2d 90 (Ct. App.
1999).

¶12 Whether termination of parental rights is in the child’s best interests
is a discretionary decision of the circuit court. State v. Margaret H., 2000 WI 42,
¶27, 234 Wis. 2d 606, 610 N.W.2d 475. This court will not overturn the circuit
court’s decision as long as the court properly exercised its discretion by
considering the pertinent facts, applying the proper standard of law, “and, using a
demonstrated rational process, reach[ing] a conclusion that a reasonable judge
could reach.” Bank Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74, ¶20, 326
Wis. 2d 521, 785 N.W.2d 462.

¶13 In making the best-interests determination, the circuit court must
consider the six statutory factors set forth in WIS. STAT. § 48.426(3): (a) the
child’s likelihood of adoption after termination; (b) the child’s age and health at
the time of disposition and when removed from the home, if applicable;
(c) whether the child has substantial relationships with the parent or other family
members and whether severing these relationships would be harmful to the child;
(d) the child’s wishes; (e) the duration of the child’s separation from the parent;
and (f) “[w]hether 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.” See also Sheboygan Cnty. Dep’t of Health
& Hum. Servs. v. Julie A.B., 2002 WI 95, ¶¶28–29, 255 Wis. 2d 170, 648 N.W.2d
402.

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No. 2023AP1884

¶14 Although the Record in this case reflects that the circuit court
considered all of the pertinent facts, applied the required statutory factors to those
facts, and used a rational process to reach a reasonable determination, it is only
necessary to address the substantial relationship factor because that is the only
factor J.L. complains about on appeal. Specifically, J.L. contends he had a
substantial relationship with Grace that would be harmful to sever and that the
court failed to give this factor significant weight in its analysis. Applying the
applicable discretionary standard of review, this court rejects J.L.’s argument
because the Record demonstrates the circuit court properly exercised its discretion
and reached a reasonable decision.

¶15 J.L. testified he had a substantial relationship with Grace because he
was present for Grace’s birth, he participated in the supervised visits, and he tried
to interact with his young daughter. He also testified that he sent Grace Christmas
and birthday gifts through the maternal grandmother and that the reason he did not
send letters or call Grace after August 2021 was because the social worker told
him he was prohibited from doing so. According to J.L., this all established he
had a substantial relationship with Grace that would be harmful to sever.

¶16 However, the Record shows that once the supervised visits were
suspended in August 2021, J.L. failed to have contact with Grace and failed to
make efforts to meet the conditions required to resume visits. Further, the circuit
court specifically found that J.L.’s explanation as to why he failed to send a single
letter or make a phone call to Grace once supervised visitation stopped was not
credible. The circuit court is the factfinder, and it is in a better position than this
court to assess the credibility of witnesses. See Lang v. Lowe, 2012 WI App 94,
¶16, 344 Wis. 2d 49, 820 N.W.2d 494 (This court’s appellate functions do not
include weighing witness credibility.). The circuit court found J.L.’s testimony

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No. 2023AP1884

suspect because although J.L. testified he would follow any rules established to
see Grace, “his actions show differently” as “he hasn’t been willing to do that to
this point[.]”

¶17 With respect to the substantial relationship factor, the circuit court
explained that “substantial relationship” “is defined as the acceptance and exercise
of the significant responsibility for the daily supervision, education, protection,
and care of the child.” It noted that “[i]n determining whether the person has a
substantial relationship with the child,” it could:

consider such factors including, but not limited to, whether
the person has expressed concern for the child or interest in
the support, care of, 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, and here the father is determined, it’s
[J.L.], whether that person has ever expressed concern for
or interest in the support, care, and well-being of the child
and also the mother during her pregnancy.

¶18 The circuit court found it significant that J.L. never progressed
beyond supervised visits, which ended in August 2021. Thus, for the almost two
years prior to the dispositional hearing in April 2023, there were no visits, no
contacts, not “much of an effort by [J.L.] to communicate with the child in other
ways.” The circuit court noted that J.L. was incarcerated for some of this time, but
in looking at his conduct, it did not see much effort “to really step up and do what
[he] need[ed] to do to further [his] relationship with the child by resuming those
visits, and all [he] had to do was contact the social worker and go through certain
things with the social worker to get those visits going again.”

¶19 The circuit court also found it significant that Grace “never spent
time with [J.L.] outside of the supervision of other people” and that once the
supervised visits were suspended, J.L. really had “not made much, if any, of an

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No. 2023AP1884

effort to communicate with the child.” The court acknowledged that there was a
reference to J.L. paying child support at some point in time, but “there’s really not
been a demonstration here by [J.L.] of supporting this child or … communicating
with the child through letters or what have you to the point where a substantial
relationship would have been developed.”

¶20 In light of the testimony and evidence presented, the circuit court
found that Grace did not have a substantial relationship with J.L. but that she did
have substantial relationships with her maternal grandmother and half-sister who
lives with the maternal grandmother. It further found that Grace’s placement for
the majority of her life has been with relatives Evelyn and Oliver and that,
according to Harrington, Evelyn and Oliver had indicated they would continue
Grace’s established relationships with her grandmother and half-sister. And,
although the court did not specifically mention it in its ruling, the Record reflects
that Harrington also testified that Evelyn and Oliver were open to continued
contact between Grace and J.L. as long as he was clean and sober—in other
words, “safe[.]”

¶21 Based on the foregoing, this court concludes the circuit court’s
decision demonstrated a proper exercise of discretion. As for J.L.’s claim that the
circuit court should have placed more weight on his testimony that, in his opinion,
he had a substantial relationship with Grace, this court sees no error. Wisconsin
law does not “mandate the relative weight to be placed on” any one factor, but the
record “should reflect adequate consideration of and weight to each factor.”
Margaret H., 234 Wis. 2d 606, ¶¶29, 35. The circuit court here addressed each of
the six factors and placed significant weight on whether J.L. had a substantial
relationship with Grace. It found he did not, and that finding is not clearly
erroneous as it is supported by undisputed facts and Harrington’s testimony.

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No. 2023AP1884

¶22 While this court has no reason to doubt that J.L. loves his daughter,
that does not change the facts. Grace was born drug affected, and when the
Department offered J.L. opportunities to meet conditions for return, he refused for
years. Grace knows only Evelyn and Oliver as her parents as she has lived with
them for almost her entire life. She is happy, healthy, and in a stable and safe
home. It is clear from J.L.’s testimony at the dispositional hearing that he wants to
be clean and sober so that he can be a good parent, and that is laudable. But a
child cannot wait forever for a parent to be a parent. This court encourages J.L. to
maintain sobriety because he is in a relatively unique position wherein his
daughter is currently placed with relatives who appear willing to continue the
relationship—despite the termination of J.L.’s parental rights—so long as he is
clean and sober.

By the Court.—Order affirmed.

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

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