State v. N.H.

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.
February 22, 2022
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.
2021AP2035 Cir. Ct. Nos. 2020TP20
2020TP22
2021AP2036 2020TP23
2021AP2037 2020TP24
2020TP25
2021AP2038
2021AP2039
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

N.H.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.
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N.H.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

N.H.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

N.H.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

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V.

N.H.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.

¶1 BRASH, C.J.1 N.H. appeals the orders of the trial court terminating
her parental rights to her five children: A.P., Z.C.W., Z.MN.W., Z.DN.W., and
Z.CN.W.2 N.H. argues that there is insufficient evidence to support the findings
that she is an unfit parent and that it was in the best interests of the children to
terminate her parental rights. Upon review, we affirm.

BACKGROUND

¶2 N.H. is the biological mother of A.P., born in July 2012; Z.C.W.,
born in August 2014; Z.MN.W., born in July 2015; Z.DN.W., born in October
2016; and Z.CN.W., born in October 2017.3

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.
2
Although the middle initials of the children are not included in the captions of this case,
we reference them here to differentiate among the children who have the same first and last
initials.
3
A.P.’s father is unknown. The biological father of the other four children was
established, and his parental rights were terminated as well during these proceedings; he is not a
party in this appeal.

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¶3 In May 2016, the Division of Milwaukee Child Protective Services
(DMCPS) received two referrals of neglect with regard to the three oldest
children. There were concerns that N.H. had not been taking the children for
routine medical care, as there were no documented medical records for them.
Furthermore, Z.MN.W. was “extremely malnourished,” weighing less than ten
pounds, which was “significantly underweight” for her age of eleven months old.
Z.MN.W. was determined to need emergency care, and was admitted to Children’s
Hospital.

¶4 Because N.H. failed to understand the seriousness of Z.MN.W.’s
condition, DMCPS filed petitions for protection or services (CHIPS) for A.P.,
Z.C.W., and Z.MN.W. However, probable cause for removal from N.H.’s custody
was found only with regard to Z.MN.W. at that time. To that end, N.H. was
charged with one count of child neglect resulting in great bodily harm. She pled
guilty; a sentence of two years of imprisonment was imposed but stayed, and she
was put on probation for three years.

¶5 A trial reunification of Z.MN.W. with N.H. was attempted in
August 2017. However, DMCPS received information in November 2017 from a
family member of N.H. who had seen her and her children at Thanksgiving, and
had observed N.H. “throw [Z.C.W.] onto the floor” causing him to hit his head on
a dresser. The relative further reported that Z.MN.W. had a black eye, and
Z.DN.W. had a “busted lip, ‘as if someone had punched her in the face.’” N.H.’s
case workers attempted to make contact with her, but she refused to answer her
phone or the door when case workers went to her home.

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¶6 A “pick-up” order was issued for all five children and, with the
assistance of the police, the children were taken into DMCPS custody. The
children were then taken to Children’s Hospital for evaluation for physical abuse,
where the following was found: A.P. had bruising to her stomach and one of her
nipples; Z.C.W. had healing scars on his back and legs, bruising on his inner arm,
legs, and back, and “looped” bruising on his foot, indicative of being hit with a
belt or extension cord; Z.MN.W. had multiple bruises and healing scars on her
arms, legs, and back, bruising around her neck and ears, and a residual black eye;
Z.DN.W. was “significantly underweight,” had a healed laceration on her lip that
“should have received stitches,” bruising and scarring on her legs, bruising around
her neck and face, and two healing fractures in her right arm; and Z.CN.W. was
underweight and had a small bruise on her face. Additionally, both Z.DN.W. and
Z.CN.W. had a torn frenulum—a “small bridge” of connective tissue in the
mouth—which can be the result of an accidental fall in mobile children, or
indicative of abuse from a direct blow or the forceful insertion of an object into the
mouth. Furthermore, in forensic interviews, A.P. told the interviewer that her
mom had “kicked her in the eye” and pinched her nipples, and Z.C.W. said that his
mom had punched him in the mouth and knocked out his tooth.

¶7 N.H. was charged with two counts of child neglect resulting in great
bodily harm, and three counts of physical abuse of a child by intentionally causing
bodily harm, all with habitual criminality repeater enhancers. She subsequently
pled guilty to two of the charges; the other charges were dismissed but read in at
sentencing. She was sentenced to eleven years of initial confinement to be
followed by eight years of extended supervision, and is currently incarcerated.

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Additionally, a no contact order was imposed prohibiting N.H. from having
contact with the children.

¶8 The previous CHIPS order for Z.MN.W was extended, and CHIPS
petitions were filed for the other four children. Dispositional orders relating to the
CHIPS petitions were entered in June 2018, listing a number of conditions that had
to be met by N.H. before the children could be returned to her care. Those
conditions included resolving the criminal charges against her and committing no
further crimes; committing no further physical abuse of the children; addressing
her mental health issues; obtaining all necessary medical care for the children; and
providing safe care for the children, including a “safe, suitable and stable home.”
The order also required regular visitation with the children.

¶9 N.H. failed to meet these conditions. She told DMCPS that she was
participating in mental health services while incarcerated, but did not provide any
verification. Furthermore, with the no contact order in place, N.H. was unable to
meet the visitation requirement. It was also noted that N.H. has a history of
neglecting and abusing the children, and placing them in “grave danger” as
evidenced by her two criminal convictions on these charges. She also had a
history of “not cooperating with services and hiding her children from DMCPS.”

¶10 Therefore, petitions for the Termination of Parental Rights (TPR) of
N.H. with regard to all five children 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 N.H. to assume parental responsibility, pursuant to § 48.415(6).

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¶11 A jury trial was held in April 2021. N.H. testified, as did several
members of the DMCPS case management team who worked with the family.
Ultimately, the jury returned verdicts that all five children were in continuing need
of protection and services, and that N.H. had failed to assume parental
responsibility with regard to all five children. Thus, the trial court made a finding
of parental unfitness. After a dispositional hearing, which commenced
immediately after the trial, the trial court determined that it was in the best
interests of the children for N.H.’s parental rights to be terminated. This appeal
follows.

DISCUSSION

¶12 On appeal, N.H. argues that the evidence is insufficient to support
the findings by the trial court that she is an unfit parent and that it was in the best
interests of the children to terminate her parental rights. “A jury’s verdict must be
sustained if there is any credible evidence, when viewed in a light most favorable
to the verdict, to support it.” Sheboygan Cnty. DHHS v. Tanya M.B., 2010 WI
55, ¶49, 325 Wis. 2d 524, 785 N.W.2d 369. Furthermore, the “ultimate
determination of whether to terminate parental rights” is 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.

¶13 The trial court’s finding that N.H. was an unfit parent was based on
the jury’s verdicts that the State had proven both grounds for termination—the

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continuing need of protection or services for the children, and the failure of N.H.
to assume parental responsibility. To prove the first ground, the State had to
establish: (1) that each child had been placed outside the home for a cumulative
total of six months or longer; (2) that DMCPS had made a reasonable effort to
provide the services ordered by the trial court; and (3) that N.H. failed to meet the
conditions set forth in the CHIPS order for the safe return of the children. See WIS
JI—CHILDREN 324; WIS. STAT. § 48.415(2).

¶14 N.H.’s argument regarding this ground focuses on the second
requirement—whether DMCPS’s efforts to provide services to N.H. were
reasonable. She asserts that her testimony during the trial established that “she felt
that she was required to do the tasks that the DMCPS was ordered to perform,
such as obtaining reports from the therapists and services providers.” However,
one of the case managers for N.H. explained during the trial that because N.H. was
incarcerated, she could provide N.H. with only general information about the
services available at the prison, not the specific classes and programs available
there. Furthermore, the case manager testified that N.H. did not sign a release
form in prison, which is required in order for the prison to share information with
the case management team regarding her participation in programs, classes, and
therapy.

¶15 Additionally, N.H. argues that DMCPS did not allow her to meet the
visitation condition while she was incarcerated. This argument relates to the no
contact order imposed by the trial court in her criminal case. N.H. asserts this was
a condition of her bond, and was subsequently ordered at sentencing to apply only
during her term of extended supervision, as opposed to being applicable during her

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term of initial confinement. Although not referenced by N.H. in her brief, this
argument presumably is based on language in her judgment of conviction, which
indicates that there was to be no contact between N.H. and her children when she
is released on extended supervision.

¶16 In contrast, the case manager testified that the no contact order was
to remain in effect for N.H.’s total sentence. The case manager also noted that
N.H. had raised the issue of the no contact order in her appeal of her criminal
case.4 As explained in the decision on appeal, during N.H.’s sentencing hearing,
which took place in September 2018—while the CHIPS disposition orders were in
effect—N.H.’s counsel noted that those orders required supervised visits between
N.H. and the children, which was prevented by the no contact order. Counsel
requested that the no contact order be modified to allow for potential compliance
with the CHIPS orders while N.H. was incarcerated. The trial court flatly refused
this request, stating that to “let [N.H.] have contact with her children in some
fashion would unduly diminish the seriousness of these horrible crimes” and thus
was “not even in the realm of what I believe is the appropriate sentence in this
case.”

¶17 This quote from the transcript of N.H.’s sentencing hearing clearly
indicates that the trial court in the criminal case intended for the no contact order
to be in effect during N.H.’s incarceration. In our decision—which affirmed
N.H.’s conviction—we concluded that this was an appropriate exercise of the

4
For purposes of maintaining confidentiality in this case, we are not providing the case
information for N.H.’s appeal of her criminal conviction.

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court’s sentencing discretion. Furthermore, in the present case the case manager
confirmed during her trial testimony that it was not within the authority of
DMCPS to “overrule” the court’s no contact order and arrange for visitation
between N.H. and her children.

¶18 Based on this evidence, we reject N.H.’s claim that DMCPS did not
make a reasonable effort to provide her with services as required under the CHIPS
orders. A “reasonable effort” is defined as “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 … the level of cooperation
of the parent … and other relevant circumstances of the case.” WIS. STAT.
§ 48.415(2)(a)2.a. As the State noted in its closing during the trial, most of the
“barriers” that N.H. faced in meeting the CHIPS conditions can be attributed to
herself: her conviction for the abuse and neglect of the children, the resulting no
contact order, and her refusal to sign the release that would allow for more open
communication between her case manager and her social workers in prison.

¶19 Furthermore, N.H.’s case manager testified that she had made
regular contact with N.H. by phone while she was incarcerated to discuss planning
and progress on the case. The case manager also stated that she sent letters with
information about the children and general information regarding services
available to N.H. in prison. We conclude that this evidence demonstrates that
DMCPS made a reasonable effort to provide N.H. with services as ordered by the
trial court. See State v. Bodoh, 226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999)
(“Statutory interpretation and applying a statute to a set of facts are both questions
of law which this court reviews de novo.”).

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¶20 We next turn to N.H.’s argument that there is insufficient evidence
to support the ruling that the State proved the second ground—failure to assume
parental responsibility, in accordance with WIS. STAT. § 48.415(6). This ground is
proven by establishing that N.H. did not have a “substantial parental relationship”
with the children. See § 48.415(6)(a). A substantial parental relationship is
demonstrated when a parent accepts and exercises “significant responsibility for
the daily supervision, education, protection and care” of his or her children. Sec.
48.415(6)(b). The court “must look to the totality[ ]of[ ]the[ ]circumstances” and
“should consider a parent’s actions throughout the entirety of the child’s life when
determining whether he [or she] has assumed parental responsibility.”
Tammy W.-G. v. Jacob T., 2011 WI 30, ¶¶22-23, 333 Wis. 2d 273, 797 N.W.2d
854. The court may also consider whether the parent “exposed [his or] her child to
a hazardous living environment.” Id., ¶22.

¶21 A review of the circumstances in this case reflect that A.P. has not
been in N.H.’s care for almost half of her life, and the other four children have not
been in her care for more than half their lives. Furthermore, N.H. has two
convictions relating to her abuse and neglect of the children, for which she
remains incarcerated in prison. Although “a parent’s incarceration does not, in
itself, demonstrate that the individual is an unfit parent,” it is certainly relevant,
especially given the nature of N.H.’s crimes and the fact that a no contact order
with the children was imposed. Kenosha Cnty. DHS v. Jodie W., 2006 WI 93,
¶¶48-49, 293 Wis. 2d 530, 716 N.W.2d 845.

¶22 Additionally, there was little participation by N.H. with regard to the
children’s care after they were removed from her care. N.H. testified that although

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she had received contact information regarding the children’s providers while she
was incarcerated, including teachers, therapists, and medical providers, she did not
attempt to initiate contact with them because she was “[n]ot sure that [she] was
able to” under the no contact order. The case manager testified that N.H. had
eventually requested contact with the children’s therapists, and she had facilitated
that contact. The case manager also stated that she had facilitated a meeting
between N.H. and the children’s teachers regarding appropriate assessments for
the children. However, the case manager further testified that N.H. repeatedly
attempted to contact the children through their foster parents, which was
prohibited under the no contact order.

¶23 Based on the totality of the circumstances, we conclude there is
sufficient evidence to support the jury’s verdict that N.H. failed to assume parental
responsibility throughout the entirety of the children’s lives. See Tammy W.-G.,
333 Wis. 2d 273, ¶¶22-23. Therefore, because there is credible evidence to
support the verdicts regarding both of the grounds for termination, we will not
disturb the trial court’s finding that N.H. was an unfit parent. See Tanya M.B.,
325 Wis. 2d 524, ¶49.

¶24 Next, we turn to N.H.’s argument that there was insufficient
evidence to support the trial court’s finding that it was in the children’s best
interest to terminate her parental rights. In making this determination, the trial
court should reference the factors set forth in WIS. STAT. § 48.426(3):

(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.

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(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.

While the trial court must consider these six factors, it may also consider “any
evidence relevant to the issue of disposition[.]” Steven V. v. Kelley H., 2004 WI
47, ¶27, 271 Wis. 2d 1, 678 N.W.2d 856.

¶25 The record reflects that the trial court considered all of the factors of
WIS. STAT. § 48.426(3). Indeed, N.H. does not argue that it did not; rather, she
argues that the court improperly gave “great emphasis” to N.H.’s conviction and
incarceration. However, as we have already discussed, this is properly considered
in determining whether a substantial relationship exists between a parent and
child—the third factor for consideration. Sec. 48.426(3)(c). N.H.’s conviction
clearly reflects that the children were subjected to a “hazardous living
environment” under her care, see Tammy W.-G., 333 Wis. 2d 273, ¶22, and the
nature of her crimes is certainly relevant to this analysis, see Jodie W., 293 Wis.
2d 530, ¶¶48-49.

¶26 In short, the trial court examined the relevant facts, applied the
correct legal standard, and reached the reasonable conclusion that terminating
N.H.’s parental rights was in the children’s best interests; it therefore did not

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erroneously exercise its discretion in doing so. See Shannon R., 286 Wis. 2d 278,
¶37. Accordingly, we affirm.

By the Court.—Orders affirmed.

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

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