State v. S.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.
October 26, 2021
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 Nos.
2021AP1278 Cir. Ct. Nos. 2020TP44
2020TP45
2021AP1279 2020TP46
2021AP1280
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.T.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.T.,
Nos. 2021AP1278
2021AP1279
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RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

S.T.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.

¶1 BRASH, C.J.1 S.T. appeals the orders of the trial court terminating
her parental rights to P.G., Jr., and twins J.G. and J.G. She argues that the trial
court erred in admitting evidence regarding the termination of her parental rights
to two of her other children, which occurred prior to the birth of the three children
involved in this matter. Upon review, we affirm.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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BACKGROUND

¶2 S.T. is the biological mother of P.G., Jr., born in May 2017, and
twins J.G. and J.G., who were born in April 2018. The parental rights of the
children’s father, P.G., were also terminated under the orders that underlie this
appeal.2

¶3 The children were detained by the Division of Milwaukee Child
Protective Services (DMCPS) in September 2018 after S.T. brought one of the
twins to the emergency room at Children’s Hospital with severe burns over “a
significant portion” of his body. S.T. explained that she had left the child in the
bathtub with the water running, and when she came back she realized the water
was too hot. Hospital staff noted that this story did not make sense, as only one of
the child’s legs was burned, as opposed to both legs. It was also noted that at the
time, the child was only five months old and unable to sit up on his own, so it was
not clear how he would have been able to sit in the bathtub alone. Furthermore, a
relative of S.T.’s who provided them with transportation to the hospital told the
staff there that S.T. had contacted her at 2:30 p.m. that day and had sent her a
photograph of the twin’s burn at that time, but S.T. told the hospital staff that the
incident had occurred at 6:30 p.m.

¶4 The hospital staff also noted that S.T. is “cognitively delayed,” and
therefore her explanation of the incident was hard to follow as her “ability to
provide a clear history” was “limited[.]” For example, she later indicated that she
had not left the twin alone in the bathtub; instead, she said that she had put him in
2
P.G. is the adjudicated father of P.G., Jr. and the biological father of the twins. P.G. is
also appealing these orders terminating his parental rights in a separate case.

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the bath without first checking the temperature of the water. When he started
“fussing,” she took him out and noticed that his skin was blistering, but she did not
think that the burn was significant; thus, instead of taking him to the hospital
immediately, she applied cream to the burn and gave him ibuprofen. However, the
skin where the burn occurred was described as “blackened, blistered, and peeling,”
and required surgery.

¶5 The three children were removed based on the potential for further
“dangerous incidents” that could cause them harm, and petitions for protection or
services (CHIPS) was filed.3 The children were placed in foster care as opposed
to being placed with P.G. because it was suspected that P.G. also has cognitive
delays, and further, at that time P.G. had an open case in Milwaukee County for
disorderly conduct related to a domestic abuse incident occurring in August 2018.

¶6 Moreover, S.T. has an extensive history with DMCPS.
Approximately ten years prior to this case, S.T. had another child who was
removed from her custody after suffering first and second-degree burns for which
S.T. did not seek medical care; as a result, S.T.’s parental rights to that child and
another child were terminated in 2008. S.T. also had two children die of
suffocation from co-sleeping, at different times, with one of those deaths
considered “suspicious[].” Additionally, she had another child who was stillborn.

3
Another child of S.T.’s, S., who was born in 2010, was also removed from S.T.’s
custody at that time. However, S. was not included in the orders terminating S.T.’s parental
rights which underlie this appeal; rather, a transfer of guardianship of S. was pending at the time
of these proceedings.

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¶7 Furthermore, there were also current contacts with S.T. by DMCPS
prior to the twin being burned. Because the twins were born prematurely, they
have medical conditions, including gastrointestinal issues, which were being
monitored by DMCPS; additionally, all three children have chromosomal
abnormalities that could result in problems with their vision, which also require
regular clinical appointments. DMCPS was contacted in June 2018 after S.T.
missed two medical appointments for the twins and could not be contacted, and
again in July 2018 when it was reported that she was feeding the twins improperly
and they were “failing to thrive” due to their problems swallowing. She was also
apparently failing to clean the bottles between feedings.

¶8 Dispositional orders relating to the CHIPS petitions were entered in
June 2019, listing a number of requirements that had to be met by S.T. and P.G.
before the children could be returned to their care. Those requirements for S.T.
included resolving her criminal case—she had been charged with felony child
neglect causing great bodily harm after the incident with the twin being burned 4—
and committing no further crimes. It was also required that S.T. show that she
could provide a safe home for the children and properly care for them.
Additionally, there was a requirement for regular visitation with the children.

¶9 S.T. failed to meet these conditions. Despite the parenting classes
and services provided to S.T. through DMCPS, S.T. has “significant cognitive
deficits,” as indicated in a psychological evaluation performed for these
proceedings, which “impair her ability to safely care for her children” and “place

4
S.T. was ultimately found not guilty of that crime due to mental disease or defect and
placed in community supervision for five years.

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her children at risk.” Furthermore, although S.T. consistently visited the children,
she always “need[ed] a lot of help” from her case worker during visits, and
sometimes did not engage with the children at all. Thus, she was never able to
move beyond supervised visitation.

¶10 As a result, petitions for the Termination of Parental Rights (TPR) of
S.T. and P.G. with regard to P.G., Jr., J.G. and J.G. were filed in February 2020.
In the TPR petitions, the State’s alleged grounds for termination included the
continuing need of protection or services for the children, pursuant to WIS. STAT.
§ 48.415(2), and the failure of S.T. and P.G. to assume parental responsibility,
pursuant to § 48.415(6).

¶11 A court trial regarding the grounds phase of the TPR proceedings
was held in February 2021. During the State’s direct examination of S.T.’s case
manager, the State inquired as to whether S.T. had ever been involved in CHIPS
or TPR proceedings with any of her other biological children, and whether her
parental rights as to any of those children had been terminated. Counsel for S.T.
objected to the question on the grounds of relevance, but the trial court overruled
the objection and allowed testimony regarding the issues involving S.T.’s other
children, as described above. It was pointed out that those incidents occurred prior
to the birth of the children who are the subjects of these TPR orders. However, the
case manager explained that due to S.T.’s cognitive issues, she has only an
“incident-based understanding” of those situations, and that it is “difficult for her
to apply previous experiences and learn from them and apply them to future
situations.”

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¶12 Ultimately, the trial court determined that the State had proven both
grounds set forth in the TPR petitions, and that it was in the best interest of the
children that S.T.’s parental rights be terminated. This appeal follows.

DISCUSSION

¶13 S.T. argues that the trial court’s decision to admit the evidence
regarding her other children was erroneous because that evidence was not relevant
to the current proceedings. “We review a trial court’s decision to admit or exclude
evidence in a termination trial under the erroneous exercise of discretion
standard.” State v. Quinsanna D., 2002 WI App 318, ¶19, 259 Wis. 2d 429, 655
N.W.2d 752 (some formatting altered). Furthermore, the “ultimate determination
of whether to terminate parental rights” is also a discretionary decision that lies
with the trial court. State v. Margaret H., 2000 WI 42, ¶27, 234 Wis. 2d 606, 610
N.W.2d 475. The trial court erroneously exercises its discretion “if it does not
examine the relevant facts, applies the wrong legal standard, or fails to use a
demonstrated rational process to reach a reasonable conclusion.” Brown Cnty. v.
Shannon R., 2005 WI 160, ¶37, 286 Wis. 2d 278, 706 N.W.2d 269.

¶14 Specifically, S.T. points to a comment made by the trial court during
the course of making its findings:

I want to step aside for a moment because I neglected to
mention that I don’t know how [S.T.] has dealt with the
trauma that has happened in her life just surrounding her
children … the trauma of losing two children during the
child or children’s sleeping, co-sleeping and passing away,
losing two children via TPR, termination of parental rights,
another child under a guardianship…. [I]t’s … clear to me
that [S.T.] has struggled for obvious reasons with the care
and protection of her children.

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S.T. asserts that this evidence referenced by the trial court is not relevant in
determining whether she met the conditions set forth in the current CHIPS orders
relating to the children involved in this matter.

¶15 Indeed, in making its determinations on a TPR petition, particularly
with regard to the ground of failure to assume parental responsibility, a court
“must look to the totality of the circumstances” of the “relevant time period”; in
other words, “the circumstances that have occurred over the entirety of the child’s
life.” Tammy W.-G. v. Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d
854 (emphasis added). Obviously, the incidents involving S.T.’s other children
did not occur during the lifetimes of P.G., Jr., J.G., and J.G.

¶16 However, in reviewing the full context of the trial court’s comments,
they were made as part of a broader discussion regarding S.T.’s argument during
the proceedings as to whether the efforts and services offered by DMCPS to S.T.
were “reasonable” under the circumstances. The trial court found that DMCPS
had in fact acted reasonably in providing services to S.T., but that due to her
“extremely low intellectual ability,” S.T. was not able to modify her behavior
sufficiently to demonstrate that she could care for the children if they were
returned to her.5 The court contemplated whether S.T.’s failure to comprehend the
extent of the burns to the twin was due in part to a “protection mechanism”

5
It was noted by counsel for S.T. that although S. was removed from S.T.’s custody at
birth, she was subsequently reunified with P.G. and S.T. in 2011, prior to the births of P.G., Jr.,
J.G., and J.G. The case manager was not aware of any interventions by DMCPS involving S. in
the time frame between reunification and the births of P.G., Jr., J.G., and J.G. In its decision, the
trial court acknowledged this information relating to S., but stated that it did not “know the
context of that return,” and that, in any event, it was not sufficient to outweigh the other evidence
in this matter regarding S.T.’s difficulties in caring for her children.

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resulting from those previous traumatic experiences with her other children.
Nevertheless, the court ultimately found that because of S.T.’s cognitive
disabilities, she “doesn’t have the ability to meet the conditions” of the CHIPS
orders.

¶17 For purposes of this analysis, we note that “relevant evidence” is
evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” WIS. STAT. § 904.01. Generally
speaking, relevant evidence is admissible, but it may be excluded if “its probative
value is substantially outweighed by the danger of unfair prejudice” or if its
admission could cause “confusion of the issues[.]” WIS. STAT. §§ 904.02, 904.03.

¶18 Here, because S.T. opted for a court trial, the evidence was presented
to the trial court—which has a clear understanding of the standard to be applied in
these matters—as opposed to being presented to a jury as the fact finder; as a
result, there was a diminished risk of the evidence leading to confusion of the
issues or unfair prejudice. See id. Furthermore, the trial court’s determination in
this case focused on S.T.’s cognitive disabilities and her lack of ability to learn
from previous experiences. Thus, the evidence regarding her other children was
relevant in this matter. See WIS. STAT. § 904.01. Therefore, the trial court did not
err in allowing it to be admitted. See Shannon R., 286 Wis. 2d 278, ¶37.

¶19 However, even if we were to conclude that this evidence was
admitted erroneously, the error was harmless. “An evidentiary error is subject to a
harmless error analysis and requires reversal or a new trial only if the improper
admission of evidence has affected the substantial rights of the party seeking
relief.” State v. Britt, 203 Wis. 2d 25, 41, 553 N.W.2d 528 (Ct. App. 1996).

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Under this test, this court “will reverse only where there is a reasonable possibility
that the error contributed to the final result.” Id.; see also State v. C.L.K., 2019
WI 14, ¶¶39, 90, 385 Wis. 2d 418, 922 N.W.2d 807 (Roggensack, C.J. and
Ziegler, J., dissenting). This analysis “presents a question of law for our
independent review.” State v. Nelson, 2014 WI 70, ¶18, 355 Wis. 2d 722, 849
N.W.2d 317.

¶20 In making the determination regarding whether an error is harmless,
“we weigh the effect of the inadmissible evidence against the totality of the
credible evidence supporting the verdict.” Britt, 203 Wis. 2d at 41. Here, there
was ample evidence in the record regarding S.T.’s cognitive disabilities which
result in her need for constant parenting assistance and her limited ability to
develop independent parenting skills, as well as evidence relating to the extensive
burn that was suffered by one of the twins while he was in S.T.’s care. Therefore,
we conclude that the evidence relating to S.T.’s other children did not contribute
to the trial court’s final determination in this matter. See id. As such, any error in
admitting the evidence relating to the older children was harmless.

¶21 Accordingly, we affirm the trial court’s orders terminating the
parental rights of S.T. to P.G., Jr., J.G., and J.G.

By the Court.—Orders affirmed.

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

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