Jackson County DHHS v. K. M. G.

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.
March 17, 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 No. 2021AP2159 Cir. Ct. No. 2021TP1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

JACKSON COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

K. M. G.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Jackson County:
TODD L. ZIEGLER, Judge. Affirmed.
No. 2021AP2159

¶1 KLOPPENBURG, J.1 The circuit court determined that it was in
the best interest of V.J.T., then two years old, to terminate the parental rights of
V.J.T.’s father, K.M.G.2 K.M.G. appeals, arguing that the court erroneously
exercised its discretion by failing to examine relevant facts that, according to
K.M.G., would support dismissal of the petition to terminate his parental rights
and by failing to consider a guardianship arrangement as an alternative to
termination. I reject K.M.G.’s arguments and affirm.

BACKGROUND

¶2 V.J.T. is the non-marital child of K.M.G., the child’s father, and
S.T., the child’s mother. V.J.T. was removed from the parents’ care three days
after birth in September 2019 and placed in the care of A.S., the mother’s cousin
and current foster mother.

¶3 Jackson County Department of Health and Human Services (the
County) filed a petition requesting termination of K.M.G.’s parental rights to
V.J.T. in January 2021. The petition alleged “continuing need of protection or
services” and “failure to assume parental responsibility” under WIS. STAT.
§ 48.415(2) and (6) as grounds for termination. The case proceeded to a jury trial
on the alleged grounds for termination of K.M.G.’s parental rights. After a three-
day trial, the jury unanimously found that the County had established both the
“continuing need of protection or services” and “failure to assume parental

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
The circuit court also terminated the parental rights of V.J.T.’s mother, S.T. The
termination of S.T.’s parental rights is not before this court in this appeal.

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No. 2021AP2159

responsibility” grounds for termination of K.M.G.’s parental rights. The case
proceeded to disposition.

¶4 At the dispositional hearing the circuit court heard testimony from
the social worker assigned to the case, a child psychologist, and V.J.T.’s maternal
grandfather, mother, and foster mother. Following the testimony, the circuit court
ordered the termination of K.M.G.’s parental rights to V.J.T.

¶5 K.M.G. appeals. Additional facts pertinent to the appeal will be
discussed below.

DISCUSSION

¶6 K.M.G. argues that the circuit court erroneously exercised its
discretion in two respects: (1) by failing to consider facts that, according to
K.M.G., would support dismissing the petition to terminate his parental rights; and
(2) by failing to consider a guardianship arrangement with V.J.T.’s maternal
grandfather as an alternative to termination.

¶7 I will first state the standard of review, statutory framework and
legal principles governing involuntary termination of parental rights. I will then
explain my conclusion that the circuit court did not erroneously exercise its
discretion in terminating K.M.G.’s parental rights or by failing to consider a
guardianship arrangement as an alternative to termination.

I. Applicable Standard of Review, Statutory Framework, and Legal
Principles

¶8 “The ultimate determination of whether to terminate parental rights
is discretionary with the circuit court.” State v. Margaret H., 2000 WI 42, ¶27,

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234 Wis. 2d 606, 610 N.W.2d 475. “We will affirm a circuit court’s discretionary
determination so long as it examines the relevant facts, applies the proper legal
standard, and uses a demonstrated rational process to reach a conclusion that a
reasonable judge could reach.” Martin L. v. Julie R. L., 2007 WI App 37, ¶4, 299
Wis. 2d 768, 731 N.W.2d 288.

¶9 Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI
95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402. “In the first, or ‘grounds’ phase of the
proceeding, the petitioner must prove by clear and convincing evidence that one or
more of the statutorily enumerated grounds for termination of parental rights
exist.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856;
see also WIS. STAT. § 48.415 (“Grounds for involuntary termination of parental
rights.”). If the circuit court finds that grounds for the termination of parental
rights are proven, the court shall find the parent unfit. Tammy W-G. v. Jacob T.,
2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854; WIS. STAT. § 48.424(4). The
second phase, the dispositional hearing, “occurs only after the fact-finder finds a
WIS. STAT. § 48.415 ground has been proved and the court has made a finding of
unfitness. In this step, the best interest of the child is the ‘prevailing factor.’”
Tammy W-G., 333 Wis. 2d 273, ¶19 (internal citation omitted).

¶10 On appeal, K.M.G. challenges only the second, dispositional, phase,
at the conclusion of which the circuit court determined that termination of
K.M.G.’s parental rights was in V.J.T.’s best interest.

¶11 “At the dispositional hearing, the court may enter an order
terminating the parental rights of one or both parents, WIS. STAT. § 48.427(3), or it

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No. 2021AP2159

may dismiss the petition if it finds the evidence does not warrant the termination
of parental rights. WIS. STAT. § 48.427(2).” Julie A.B., 255 Wis. 2d 170, ¶28.

¶12 The prevailing factor at the dispositional phase in a termination case
is the best interest of the child. David S. v. Laura S., 179 Wis. 2d 114, 149, 507
N.W.2d 94 (1993). In determining whether it is in the best interest of the child
that a parent’s rights be terminated, “the [circuit] court ‘should welcome’ any
evidence relevant to the issue of disposition, including any ‘factors favorable to
the parent,’ and must at a minimum consider the six ‘best interests’ factors set
forth in WIS. STAT. § 48.426(3).” Steven V., 271 Wis. 2d 1, ¶27 (quoted source
omitted).

¶13 WISCONSIN STAT. § 48.426(3) sets forth the six factors that a circuit
court must examine in determining whether the termination of parental rights is in
the best interest of the child:

FACTORS. In considering the best interests of the
child under this section the court shall consider but not be
limited to the following:

(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

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No. 2021AP2159

child’s current placement, the likelihood of future
placements and the results of prior placements.

Sec. 48.426(3). The weight to be given to each factor is a matter committed to the
court’s discretion. See Margaret H., 234 Wis. 2d 606, ¶¶29-30 (“we cannot
mandate the relative weight to be placed on” a factor).

II. Analysis

¶14 K.M.G. does not dispute that the circuit court properly considered all
six of the required factors under WIS. STAT. § 48.426(3). Nevertheless, K.M.G.
argues that the court erroneously exercised its discretion in failing to examine
certain facts that, according to K.M.G., would support the dismissal of the petition
to terminate K.M.G.’s parental rights, namely, facts regarding the viability of a
guardianship of V.J.T. K.M.G. also argues that the court had an obligation to
consider guardianship as a specific alternative to termination, and failed to do so.
I address each argument in turn.

A. Failure to Consider Relevant Facts

¶15 K.M.G. argues that the circuit court failed to consider certain
testimony of V.J.T.’s maternal grandfather, T.T., and the testimony of the child
psychologist, Dr. Kathryn Hom.

¶16 Regarding T.T.’s testimony, K.M.G. argues that the circuit court
failed to consider T.T.’s testimony that he is willing and able to serve as a
guardian of V.J.T., that he has been involved in V.J.T.’s life since V.J.T. was born
and visits V.J.T. weekly, and that T.T. and V.J.T.’s foster mother, A.S., have had
disagreements that have the potential to affect T.T.’s relationship with V.J.T.

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No. 2021AP2159

¶17 Regarding Dr. Hom’s testimony, K.M.G. argues that the circuit court
failed to consider her testimony regarding her observations of the relationship
between V.J.T. and T.T., the strong and positive bond that exists between them,
V.J.T.’s apparent secure attachment to T.T., the importance of secure attachments
to child development, and the potential “attachment injuries” that can be caused by
severance of a child’s relationship with caregivers or family members. K.M.G.
also argues that the court failed to consider Dr. Hom’s similar testimony regarding
V.J.T.’s relationship with K.M.G. and her ultimate recommendation that V.J.T.’s
relationships with both T.T. and K.M.G. not be severed.

¶18 As I now explain, the record refutes K.M.G.’s argument that the
circuit court failed to consider that testimony, and shows that the court considered
all relevant and proper facts that weighed in favor and against dismissing the
petition to terminate K.M.G.’s parental rights.

¶19 The circuit court began its remarks by addressing the factors in WIS.
STAT. § 48.426(3) that it found to be “straightforward,” stating that factors (a), (b),
(e), and (f) all weighed “very strong[ly] … in favor of termination of parental
rights.”3 See § 48.426(3)(a)-(f). However, the court spent considerably more time
discussing factor (c), “[w]hether the child has substantial relationships with the
parent or other family members, and whether it would be harmful to the child to

3
Specifically, the court remarked, regarding factors (a), (b), (e), and (f): “the likelihood
of adoption is high;” “[V.J.T.] was removed [from the child’s parents] at birth, and [the child’s]
health has been fine;” the “[d]uration of separation of parent and child … has been all of
[V.J.T.’s] life …. It’s hard to find a factor … being more strong than the whole life of a child;”
and “it’s very clear that [V.J.T.] is likely to enter into a much more stable and permanent family
relationship as a result of termination.”

As to factor (d), the wishes of the child, the circuit court stated that it would “skip” that
factor as “[V.J.T.] is too young to express those.”

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No. 2021AP2159

sever these relationships,” § 48.426(3)(c), and determining whether that factor
would “tip[] the scales such that it is not in [V.J.T.]’s best interests to grant the
termination.” The court’s discussion of this factor spanned six pages of transcript,
and referenced T.T.’s testimony and Dr. Hom’s testimony throughout its remarks.

¶20 Regarding T.T.’s involvement and bond with V.J.T., the circuit court
stated the following.

I don’t necessarily question Dr. Hom’s testimony that she
observed a bond. I think there is.

I think there’s clearly a bond between [V.J.T.] and
[T.T.]. That’s been consistent. [T.T.] testified. Certainly,
[T.T.] … cares very much for [V.J.T.], has a relationship. I
believe [V.J.T.] has a good relationship with him.

The circuit court also discussed the frequency with which T.T. has been visiting
V.J.T., stating “someone that sees [V.J.T.], I believe … every two weeks … that
visit in regards to a young child is a pretty substantial relationship.”

¶21 Regarding V.J.T.’s relationship with K.M.G., the circuit court stated
that while the extent of their relationship is “debatable,” the court would “assume
that [K.M.G.] has, by some definition, a substantial relationship with his [child].”

¶22 Consistent with Dr. Hom’s testimony, the circuit court recognized
that there would be some harm caused to V.J.T. by severing V.J.T.’s relationships
with T.T. and K.M.G. However, the court remarked that while the situation was
“difficult,” the harm caused by the termination of K.M.G.’s parental rights and
therefore severance of V.J.T.’s relationships with K.M.G. and T.T., would be
“somewhat mitigated by [V.J.T.]’s age.”

¶23 Showing further consideration of the bond between V.J.T. and T.T.
and the importance of maintaining that relationship, the circuit court discussed the

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testimony regarding the contentious relationship between T.T. and A.S. and how
that would affect T.T.’s ability to maintain a relationship with V.J.T. Specifically,
the court noted that it was “concern[ed]” by A.S.’s testimony that if she adopted
V.J.T., she would not let T.T. have a relationship with the child if T.T. would not
agree to certain conditions.4 The court acknowledged that for the purposes of the
dispositional hearing and consideration of the statutory factors, it needed to
assume that the relationship between T.T. and V.J.T. would be severed if
K.M.G.’s parental rights were terminated, but that it would ask A.S. to “have an
open mind” about letting T.T. maintain a relationship with V.J.T. because “it’s
been very clearly established … that that relationship is a strong relationship.”

¶24 Also consistent with Dr. Hom’s testimony regarding attachment
injuries and harm that can be caused by severing a child’s relationships with his or
her caregivers, the circuit court found that there would be harm in severing
V.J.T.’s relationship with A.S., who has cared for the child since birth. Regarding
the potential that V.J.T. would be removed from A.S.’s care should the petition for
termination not be granted, the court stated:

I’m not saying that this granting of the termination isn’t
going to be harmful to [V.J.T.] in some way … because
[the guardian ad litem5] made a very good point that
termination is also to address permanence for a child ….

4
T.T. is A.S.’s biological uncle. Pursuant to that relationship, A.S. told T.T. that if she
adopts V.J.T., T.T. was “welcome to be in [V.J.T.’s] life as [the child’s] uncle,” but if T.T. “ha[d]
an issue with that, then [T.T.] just won’t be part of [V.J.T.’s] life.” T.T. testified that he did not
think it was in V.J.T.’s best interest for A.S. to refer to T.T. as V.J.T.’s uncle rather than
grandfather, which caused an ongoing dispute between T.T. and A.S.
5
A guardian ad litem is an attorney appointed to represent the “best interests of the
person or unborn child for whom the appointment is made.” WIS. STAT. § 48.235(2), (3).
Section 48.235(1)(c) mandates that the circuit court “appoint a guardian ad litem for any child
who is the subject of a proceeding to terminate parental rights.”

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No. 2021AP2159

Lack of permanency would be harmful. Taking
[V.J.T.] away, and I’m not saying this is … going to
happen anytime soon—but taking [V.J.T.] away from really
the only parent [the child’s] ever known would be very
harmful.

¶25 The court weighed the testimony regarding V.J.T.’s relationships
with T.T. and K.M.G. and the potential for harm in severing those relationships, as
well as the testimony regarding V.J.T.’s relationship with A.S. and the harm in
severing that relationship. The circuit court stated that despite some “concern,”
primarily pertaining to severing the relationship between V.J.T. and T.T., “the
factors as a whole clearly weigh in favor of granting the termination.” The court
concluded that “it is in the best interests [of V.J.T.] to grant the termination of
parental rights against … [K.M.G.].”

¶26 K.M.G.’s argument that the circuit court failed to consider relevant
facts that, according to K.M.G., would support dismissal of the petition is, in
effect, an argument that the court should have weighed the evidence differently.
However, the weight and credibility of the evidence are for the circuit court to
determine. See Lessor v. Wangelin, 221 Wis. 2d 659, 665-66, 586 N.W. 2d 1 (Ct.
App. 1998) (“When the [circuit] court acts as the finder of fact, it is the ultimate
arbiter of the credibility of the witnesses and of the weight to be given to each
witness’s testimony.”). The record demonstrates that the court considered the
testimony highlighted by K.M.G. together with the other evidence relevant to each
factor and made its determination based on the evidence as a whole. Accordingly,
the court’s decision represents a proper exercise of discretion.

B. Consideration of Alternatives to Termination

¶27 K.M.G. argues that the circuit court had an obligation to consider a
guardianship of V.J.T. with T.T. as an alternative to termination of K.M.G.’s

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parental rights and that the court erred by failing to do so. However, the record
refutes K.M.G.’s argument that the court failed to consider alternatives to
termination, and K.M.G. cites no legal authority that supports his assertion that the
court was required to consider any one specific alternative to termination at the
dispositional hearing.6

¶28 The record shows that the circuit court did, at least implicitly,
consider and reject alternatives to termination of K.M.G.’s parental rights. As
summarized above, the court heard testimony relevant to both supporting and
opposing such alternatives, and the court weighed that evidence in favor of
termination as being in V.J.T.’s best interest.

¶29 To repeat, the circuit court heard T.T.’s testimony that he was
willing and able to serve as V.J.T.’s guardian, as well as testimony about T.T.’s
relationship with V.J.T. The court recognized that T.T. and V.J.T. have a “good
relationship” and that the bond between them is “substantial,” and expressed
concern regarding severing the relationship between T.T. and V.J.T. The court
also heard testimony about the relationship between V.J.T. and A.S. and about
how A.S. has been V.J.T.’s primary caregiver since the child was born. Consistent
with that testimony, the court found that it would be “very harmful” to “tak[e]
[V.J.T.] away from really the only parent [the child’s] ever known.”

¶30 As explained in ¶¶19-25 above, it is evident from the record that the
circuit court properly considered what disposition would be in V.J.T.’s best
interest. Although the court did not explicitly decide that a guardianship was not

6
K.M.G. does not point to any evidence in the record that he requested that the circuit
court appoint T.T. as the child’s guardian.

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in V.J.T.’s best interest, the court’s remarks and decision to terminate K.M.G.’s
parental rights establish that it implicitly rejected alternative arrangements with
T.T. in the form of a guardianship.

¶31 K.M.G. argues that the circuit court was required explicitly to
consider guardianship as an alternative to termination based on A.B. v. P.B., 151
Wis. 2d 312, 444 N.W.2d 415 (Ct. App. 1989). In that case, the court stated,
“alternatives to termination must be explored. Only if termination is still in the
child’s best interests after consideration but rejection of these alternatives, is
termination permitted.” Id. at 322 (citation omitted). However, A.B. is easily
distinguishable from the present case.

¶32 In A.B., the unmarried parents of an almost two-year-old child
sought to voluntarily terminate the father’s parental rights. Id. at 315. The father
did not have any significant relationship with the child or the child’s mother. Id.
at 315-17. The circuit court granted the termination and this court reversed,
concluding that there was insufficient evidence in the record to indicate that the
father’s consent to the termination was voluntary because “there is nothing in the
appellate record that indicates that the father was aware of alternatives to
termination[.]” Id. at 319.

¶33 While the court reversed because of an insufficient voluntariness
analysis, it also continued its analysis to include determining whether termination
was in the best interest of the child in anticipation of the termination petition being
refiled. Id. at 320. The court noted that the circuit court’s rationale in granting the
termination “focused on difficulties the parents were having in coping with their
strained relationship and the mother’s desire to get the father out of her life,” and
also noted that the termination of the father’s parental rights would terminate his

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obligation to support his child. Id. at 321-22. The court stated that voluntary
termination of parental rights without exploration of alternatives was against
public policy in those circumstances, explaining:

[p]arental rights may not be terminated merely to advance
the parents’ convenience and interests, either emotional or
financial. Furthermore, alternatives to termination must be
explored. Only if termination is still in the child’s best
interests after consideration but rejection of these
alternatives, is termination permitted. Simply put, no
parent may blithely walk away from his or her parental
responsibilities.

Id. at 322 (citations omitted).

¶34 The court opined that, because “[t]here is no showing that the
parents’ relationship adversely affects their daughter to the extent that termination
is warranted—or that it threatens to do so[,]” alternatives to the “drastic
consequences” of termination were likely to better serve the child’s best interest.
Id. at 322-23 & n.6.

¶35 Notably, the court in A.B. distinguished those circumstances from
cases involving involuntary termination of parental rights, stating, “[t]his case is
not one where termination would advance the prospects of a proposed adoption
and a child’s resulting passage from instability to stability.” Id. at 322 (citation
omitted).

¶36 Nothing in A.B. requires a circuit court, on a petition for involuntary
termination of parental rights such as that filed here, to first examine any one
particular alternative to termination when evaluating which disposition is in the
child’s best interest. The present case involves neither a voluntary termination of
parental rights nor, as explained above, a dispositional decision made without
consideration of any alternatives to involuntary termination. As stated, the circuit

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court here properly considered the six required factors in WIS. STAT. § 48.426(3)
and all relevant facts before making its determination that termination of K.M.G.’s
parental rights was in V.J.T.’s best interest.

CONCLUSION

¶37 For the reasons stated above, the circuit court’s order terminating
K.M.G.’s parental rights is affirmed.

By the Court.—Order affirmed.

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

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