C. T. L. v. M. L. K.

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.
July 11, 2023
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. 2023AP402 Cir. Ct. No. 2021TP16

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

C. T. L. AND B. K. K.,

PETITIONERS-RESPONDENTS,

V.

M. L. K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
SUZANNE C. O’NEILL, Judge. Affirmed.
No. 2023AP402

¶1 STARK, P.J.1 Melissa2 appeals from an order terminating her
parental rights (TPR) to her six-year-old daughter Mary. She argues that she is
entitled to a new trial for two reasons. First, the circuit court erroneously
exercised its discretion by admitting irrelevant evidence regarding Mary’s best
interest during the grounds phase of the proceedings. Second, the court erred by
failing to take judicial notice of a COVID-19 stay-at-home order that Melissa
claims supported her good cause defense to the issue of whether she abandoned
Mary.3 We conclude that any error on the part of the court was harmless.
Accordingly, we affirm.

BACKGROUND

¶2 In May 2021, Cynthia and Bill, Mary’s paternal grandparents,
petitioned to terminate Melissa’s parental rights to Mary,4 who had lived with
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.” WIS. STAT. 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 child, and the associated family
members in this confidential matter using pseudonyms, rather than their initials.
3
Melissa also argues that the circuit court erroneously exercised its discretion by
refusing to admit evidence regarding post-petition events that she claims were relevant to the
issue of whether she failed to assume parental responsibility for Mary. As we note below, we
decide this case on the issue of abandonment (six months) only, and, therefore, we need not
address this issue.
4
Cynthia and Bill also petitioned to terminate the parental rights of Richard, Mary’s
biological father. Richard voluntarily terminated his parental rights, and his rights are not at issue
in this appeal.

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them for four years. The TPR petition alleged grounds of abandonment (six
months) under WIS. STAT. § 48.415(1)(a)3. and failure to assume parental
responsibility under § 48.415(6).

¶3 A three-day jury trial was held during the grounds phase of the case
during which nine witnesses testified, including Cynthia, Bill, and Melissa. The
following evidence was produced at trial. Mary was born in July 2015 to Melissa
and Richard. Richard was incarcerated at the time of Mary’s birth, and he
remained incarcerated throughout the TPR proceedings. Melissa initially cared for
Mary with the help of her mother, Natalie, and Cynthia.

¶4 Melissa admitted to using illegal substances from 2016 to 2021, and
experiencing homelessness and unemployment during that time. As a result of
Melissa’s drug use, and pursuant to a child in need of protection or services
(CHIPS) order, Mary was placed with Natalie at the age of fifteen months. In
2017, Mary was removed from Natalie’s care and she has since resided with
Cynthia and Bill. In 2018, Cynthia and Bill were granted guardianship over Mary.

¶5 Cynthia testified that Mary exhibited a variety of concerning
behaviors when she began living with Cynthia and Bill full-time. Mary did not
like to be touched, displayed aggressiveness, would bite, would throw her toys and
clothes, would hit her head against the wall, and was frequently angry. Mary was
also “deathly afraid of men.”

¶6 Mary’s pediatrician, Dr. Jeffrey LaMont, testified that he noticed
Mary’s concerning behavior and considered her to be “very apprehensive” and
“anxious” to a degree that was not ordinary. He noted, however, that Cynthia’s
presence did comfort Mary. In August 2017, LaMont wrote a letter to the
Marathon County Department of Social Services recommending the suspension of

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any visitation between Mary and Melissa and further recommending that Cynthia
have exclusive care and custody of Mary.

¶7 During the guardianship, Melissa was allowed supervised visitation
with Mary. The visitation was organized between Melissa and Cynthia, and was
scheduled to occur at a local McDonald’s or the public library. Melissa frequently
failed to show up to her scheduled visitation, and she last visited with Mary in
November 2019. Melissa then missed a scheduled visit with Mary in December
2019, and Cynthia did not hear from Melissa until Mary’s birthday in July 2020.
At that time, Melissa texted Cynthia and asked if she could drop off gifts for
Mary, but Cynthia did not respond, and Melissa did not drop off any gifts.
Melissa again attempted to contact Cynthia over Facebook Messenger in
September 2020, and again, Cynthia did not respond. After the TPR petition was
filed in May 2021, Melissa attempted to contact Cynthia only once, in December
2021.

¶8 At the time of trial, Mary was in kindergarten. Melissa had never
contacted any of Mary’s teachers or anyone at her school. Melissa took Mary to a
doctor’s appointment only once in Mary’s life, and either Natalie or Cynthia
accompanied Mary to all of her other doctor appointments. Melissa did not
voluntarily pay child support over the years, and she often relied on Natalie and
Cynthia to purchase diapers and food for Mary while Mary was in her care.

¶9 The jury found that both of the asserted grounds existed for
termination of Melissa’s parental rights—i.e., abandonment and failure to assume
parental responsibility. The circuit court then found Melissa unfit. After a
dispositional hearing, the court found that it was in Mary’s best interest to

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terminate Melissa’s parental rights. Melissa now appeals. Additional facts will be
provided as necessary below.

DISCUSSION

I. Evidence regarding Mary’s Best Interest

¶10 During the jury trial, Bill was asked whether termination of
Melissa’s parental rights was “good for [Mary].” Melissa did not object to the
question. During Cynthia’s subsequent testimony, the circuit court overruled
Melissa’s objection to the same question. In response to this question, both
Cynthia and Bill testified regarding the stability they provided for Mary and the
improvement in Mary’s behavior since she began living with them. Cynthia
testified that Mary “is in a stable, happy, loving home” and that Mary “is doing so
well in school” and she attends gymnastics and piano lessons. Cynthia also
testified that Mary did not know Melissa and that if Mary was “moved again,” that
would “turn [Mary’s] whole world upside down.” Bill testified that the negative
behaviors Mary exhibited when she first stayed with them—such as hitting herself
or waking up and needing to be comforted at night—returned after Melissa’s
visitation with Mary.

¶11 Melissa asserts the above evidence was irrelevant to the issues that
the jury was required to address when considering whether grounds existed to
terminate her parental rights based on abandonment and failure to assume parental
responsibility. Melissa contends that this evidence was relevant only during the

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No. 2023AP402

dispositional phase of the proceedings and that the circuit court therefore
erroneously exercised its discretion by admitting it during the grounds phase.5

¶12 A termination of parental rights proceeding involves a two-step
procedure. Sheboygan Cnty. Dep’t of Health & Hum. Servs. v. Julie A. B., 2002
WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402. The first step is the grounds
phase, which “consists of a fact-finding hearing” where the “burden is on the
petitioner to demonstrate by clear and convincing evidence that grounds for
termination exist.” Brown Cnty. Dep’t of Hum. Servs. v. Brenda B., 2011 WI 6,
¶32, 331 Wis. 2d 310, 795 N.W.2d 730. “If grounds for the termination of
parental rights are found by the court or jury, the court shall find the parent unfit.”
WIS. STAT. § 48.424(4). “The second step is the dispositional phase,” during
which “the best interests of the child are paramount.” Evelyn C.R. v. Tykila S.,
2001 WI 110, ¶23, 246 Wis. 2d 1, 629 N.W.2d 768. The parent is entitled to
present relevant evidence to the issue of disposition. WIS. STAT. § 48.427(1). “At
the dispositional hearing, the court may enter an order terminating the [parent’s]
parental rights” or “it may dismiss the petition if it finds the evidence does not
warrant the termination of [the parent’s] parental rights.” Julie A. B., 255 Wis. 2d
170, ¶28.

5
As previously noted, the jury concluded both that Melissa had failed to assume parental
responsibility and that she had abandoned Mary. We decline to address issues that Melissa raises
related to the failure to assume parental responsibility ground because the evidence was sufficient
for the jury to find that Melissa abandoned Mary, 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 the
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 that an appellate court need not
address every issue raised by the parties when one issue is dispositive).

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No. 2023AP402

¶13 We review a circuit court’s decision “to admit or exclude evidence
in a termination trial” for an erroneous exercise of discretion. State v.
Quinsanna D., 2002 WI App 318, ¶19, 259 Wis. 2d 429, 655 N.W.2d 752. We
will uphold “a circuit court’s decision to admit or exclude evidence if the decision
ha[d] ‘a reasonable basis’ and was made ‘in accordance with accepted legal
standards and in accordance with the facts of the record.’” La Crosse Cnty. Dep’t
of Hum. Servs. v. Tara P., 2002 WI App 84, ¶6, 252 Wis. 2d 179, 643 N.W.2d
194 (citation omitted). “An appellate court will generally look for reasons to
sustain a discretionary determination” and can “independently search the record to
determine whether additional reasons exist to support the [circuit] court’s exercise
of discretion.” Obey v. Halloin, 2000 WI App 99, ¶17, 235 Wis. 2d 118, 612
N.W.2d 361.

¶14 “‘Relevant evidence’ means 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. Melissa asserts that the testimony pertaining to why termination
of her rights would be “good” for Mary “had no tendency to make any facts as to
whether [Melissa] abandoned [Mary] more or less probable.” Melissa therefore
contends that the circuit court erroneously exercised its discretion by permitting
Cynthia and Bill to testify about Mary’s best interest and by failing to make a
record as to why this evidence was relevant.

¶15 Cynthia and Bill respond that Melissa has forfeited this issue by
failing to object when Bill, the first witness to testify, was asked why he believed
termination of Melissa’s rights would be good for Mary. Because Melissa did not
object to the same evidence presented by Bill, Cynthia and Bill contend that
Melissa forfeited her ability to challenge Cynthia’s later response to the same

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No. 2023AP402

question. Cynthia and Bill cite Gedicks v. State, 62 Wis. 2d 74, 83-84, 214
N.W.2d 569 (1974) (citation omitted), where our supreme court stated: “When
objection is not made to the initial introduction [of evidence] or, at least, when the
objectionable nature of the testimony is apparent, the right to subsequently object
to the introduction of such testimony has been lost.”

¶16 “[O]bjections to the admissibility of evidence must be made
promptly and in terms which inform the circuit court of the exact grounds upon
which the objection is based.” State v. Hartman, 145 Wis. 2d 1, 9, 426 N.W.2d
320 (1988). Typically, a failure to object “constitutes a forfeiture of the right on
appellate review.” State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761
N.W.2d 612. If the “values protected by the forfeiture … rule” would not be
advanced by applying that rule in a given case, a court may disregard the forfeiture
and “reach the merits of the issue presented.” See id., ¶38.

¶17 We agree that Melissa forfeited her objection to Bill’s and Cynthia’s
testimony about whether the TPR would be beneficial to Mary. Nevertheless, we
will ignore the forfeiture and address the merits of this issue because the parties
have briefed the issue and there are no factual issues to be resolved. Further,
Melissa did object to Cynthia’s later testimony in response to the question about
whether the TPR would be “good for Mary,” and the circuit court had the
opportunity to address the issue.

¶18 For purposes of our decision, we assume without deciding that the
circuit court erroneously exercised its discretion by allowing Bill and Cynthia to
testify about whether the TPR would be “good for Mary” because such evidence
was irrelevant to the issue of abandonment during the grounds phase of the

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No. 2023AP402

proceedings. We nonetheless, conclude that any error on the court’s part in
permitting that testimony was harmless.

¶19 For an error to be harmless, it must not affect “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). Stated differently, an error does not affect the substantial
rights of a party unless there is “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. “If the error at issue is not sufficient to undermine the reviewing court’s
confidence in the outcome of the proceeding, the error is harmless.” Id.

¶20 To prove the abandonment (six months) ground for a TPR, the
petitioner must prove that “[t]he child has been left by the parent with any person,
the parent knows or could discover the whereabouts of the child and the parent has
failed to visit or communicate with the child for a period of 6 months or longer.”
WIS. STAT. § 48.415(1)(a)3. Abandonment is not established, however, if the
parent can prove they “had good cause for having failed to visit … [or]
communicate with the child throughout the [applicable] time period.” See
§ 48.415(1)(c)1.-2. Here, the jury was asked if Mary was left by Melissa with a
relative or parent; if Melissa knew or could have known of Mary’s whereabouts;
and if Melissa failed to visit or communicate with Mary for a period of six months
or longer. Additionally, the jury was asked four questions regarding whether
Melissa had good cause for failing to communicate or visit with Mary or Cynthia
during that time period. The jury answered “yes” to the first three questions, and
“no” to the subsequent questions.

¶21 The undisputed evidence elicited at trial from Melissa, Cynthia, and
Bill showed that Melissa had abandoned Mary. Melissa had left Mary with

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No. 2023AP402

Cynthia in the past, she knew that Mary was transferred to Cynthia’s care in 2017,
and she also knew that Cynthia and Bill had been granted guardianship over Mary
in 2018. Melissa did not see or communicate with Mary from December 21, 2019,
to July 18, 2020, and provided no evidence explaining her failure to do so.
Cynthia’s and Bill’s testimony as to how Mary’s best interest was served by the
TPR would not have affected the jury’s answers to the verdict questions regarding
whether Melissa abandoned Mary or whether she had good cause for failing to
visit or communicate with Mary or Cynthia. Therefore, admission of Bill’s and
Cynthia’s testimony regarding Mary’s best interest does not undermine our
confidence in the jury’s verdict. Accordingly, any error on the part of the circuit
court in allowing this best interest testimony was harmless.

II. Judicial Notice of Stay-at-Home Order

¶22 On the third day of trial, Melissa requested that the circuit court take
judicial notice of the governor’s “COVID[-19] stay-at-home order” in support of
an affirmative defense that she had good cause for her failure to visit or
communicate with Mary or Cynthia. Specifically, Melissa argued that because the
stay-at-home order was in effect during the time of at least one of the periods
when she was claimed to have abandoned Mary, that order provided evidence of a
factor beyond her control that precluded or interfered with her visitation of Mary,
and provided good cause for her failure to do so. She contends that the court
erroneously exercised its discretion by denying her request because the court was
required to take judicial notice of the stay-at-home order pursuant to WIS. STAT.
§ 902.01(4).

¶23 WISCONSIN STAT. § 902.01(4) requires a judge or court to “take
judicial notice if requested by a party and supplied with the necessary

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information.” There is no dispute that the stay-at-home order was the type of
evidence that the circuit court was required to take judicial notice of pursuant to
§ 902.01(4). We therefore assume, without deciding, that the court erred by
failing to take judicial notice of the order. We conclude, however, that such error
was harmless because regardless of whether the court took judicial notice of the
stay-at-home order, it properly exercised its discretion in excluding evidence of
the order as it was irrelevant to Melissa’s good cause defense.

¶24 Specifically, the circuit court refused to take judicial notice of the
order because Melissa did not present any evidence that the stay-at-home order
caused her failure to visit or communicate with Mary or Cynthia. Thus, the court
correctly found that the stay-at-home order was irrelevant as, under the
circumstances here, the existence of the order did not provide a basis for the jury
to determine that Melissa had good cause for failing to visit or communicate with
Mary or Cynthia. Consequently, even if the court erred by failing to take judicial
notice of the stay-at-home order, it nevertheless properly exercised its discretion in
refusing to admit the order as evidence in support of Melissa’s good cause
defense.

¶25 We further conclude that judicial notice of the stay-at-home order
would not have affected the outcome of the trial because, in her closing argument,
Melissa did mention COVID-19 as an obstacle to her visitation with Mary. Her
counsel argued that Melissa last saw Mary in November 2019 and then “in March
of 2020, COVID[-19] hit” and Melissa “never got to see her daughter again.” The
jury was therefore aware of COVID-19 as a potential obstacle to Melissa’s
visitation with Mary. The jury nevertheless found that Melissa failed to prove that
she had good cause for failing to communicate with Mary or Cynthia from

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December 21, 2019, to July 18, 2020, and, accordingly, found that she had
abandoned Mary.

III. Cumulative Error

¶26 Melissa acknowledges that the claimed evidentiary errors are subject
to a harmless error analysis. She nonetheless argues that the cumulative effect of
the circuit court’s errors “worked to the advantage of [Cynthia and Bill] and to the
detriment of [Melissa].” These errors, Melissa claims, “allowed [Cynthia] to
persuade the jury with evidence it should not have heard, and precluded [Melissa]
from presenting the jury with evidence it properly should have heard.” Thus, she
claims that absent the cumulative effect of the court’s errors, the outcome of the
proceedings would have been different. Melissa asserts that the aggregated errors
were not harmless because Cynthia’s and Bill’s testimony “tainted” the jury’s
ability to fairly assess all subsequent evidence, and the evidence within the record
could support an alternative verdict in her favor.

¶27 “The cumulative effect of several errors may, in certain instances,
undermine a reviewing court’s confidence in the outcome of a proceeding.” State
v. Harris, 2008 WI 15, ¶110, 307 Wis. 2d 555, 745 N.W.2d 397. Melissa’s
claimed errors in this case, however, do not meet that standard. As noted above,
the evidence showing that Melissa abandoned Mary was virtually undisputed, and
there was no evidence showing that Melissa had good cause for failing to visit or
communicate with Mary or Cynthia for six months. Given the strength of
Cynthia’s and Bill’s case, there is no reasonable possibility that the circuit court’s
alleged errors—whether considered individually or cumulatively—contributed to
the jury’s verdict on the abandonment ground.

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By the Court.—Order affirmed.

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

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