Kenosha County v. V. L. W., Jr.

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.
November 12, 2025
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. 2025AP1914 Cir. Ct. No. 2021TP63

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

KENOSHA COUNTY,

PETITIONER-RESPONDENT,

V.

V.L.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
ANTHONY G. MILISAUSKAS, Judge. Affirmed.
No. 2025AP1914

¶1 GUNDRUM, J.1 V.L.W., hereinafter referred to by the pseudonym
Victor, appeals from an order of the circuit court terminating his parental rights to
his son, Vance.2 Victor contends the court erred at the evidentiary grounds
hearing on the termination petition by excluding evidence from after August 31,
2021, and in so erring, denied him his substantive due process right to present a
defense. Victor also asserts the court incorrectly instructed the jury at that hearing
to “consider the facts and circumstances as they existed on August 31, 2021.” For
the following reasons, we affirm.

Background

¶2 On October 31, 2019, Vance, then age two, lived with his mother,
Nancy,3 Victor, and his two siblings. On that date, the Kenosha Police
Department arrested Victor and Nancy for drug dealing, and the Kenosha County
Department of Human Services (Department) took custody of Vance and his
half-siblings. The Department filed a petition alleging Vance was a child in need
of protection or services (CHIPS), and on January 27, 2020, the circuit court found
Vance to be in need of protection or services. On June 3, 2020, the court entered a
dispositional order placing Vance outside the home (in foster care). Victor and
Nancy remained incarcerated until October 2022, when they were released on
extended supervision.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
2
A pseudonym.
3
A pseudonym.

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No. 2025AP1914

¶3 On August 31, 2021, while Victor and Nancy were incarcerated, the
Department filed a petition to terminate their parental rights to Vance, alleging
Vance continued to be a child in need of protection or services. As relevant,
Victor contested the petition, and the circuit court held a grounds hearing in
May 2024 to determine if Vance continued to be in need of protection or services
and thus, if that ground was established for terminating Victor’s parental rights to
Vance. The jury found that Vance continued to be a child in need of protection or
services. The court subsequently held a dispositional hearing, concluded it was in
the best interest of Vance to terminate Victor’s parental rights, and terminated said
rights. Victor appeals.

Discussion

¶4 Victor makes three claims on appeal. First, relying on WIS. STAT.
§ 48.415(2)(a)3. and language used in the termination petition, he claims “it was
error to exclude evidence after August 31, 2021, given that child was placed out of
the home for less than 15 of the most recent 22 months.” (Formatting modified.)
Second, he relatedly claims that “by excluding evidence after August 31, 2021,
[he] was denied his substantive due process right to put on a defense.”
(Formatting modified.) Lastly, he claims “the [termination of parental rights
(TPR)] order should be reversed because the jury was incorrectly instructed on the
applicable law.” (Formatting modified.) Victor fails to get out of the gate on any
of these claims.

¶5 Victor notes that the County acknowledged in the petition that at the
time it was filed, Vance had been placed outside of Victor’s home pursuant to the

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No. 2025AP1914

CHIPS order for “less than 15 of the most recent 22 months.”4 From this, Victor,
relying on WIS. STAT. § 48.415(2)(a)3., insists that in determining whether Vance
was in need of protection or services, the jury should have been presented with
and considered facts or events occurring after the date the Department filed the
petition, August 31, 2021. As relevant, § 48.415(2)(a)3. provides that the County
establishes that a child is in need of protection or services if

the child has been placed outside the home for a cumulative
total period of 6 months or longer pursuant to an order
[adjudging the child to be in need of protection or services];
that the parent has failed to meet the conditions established
for the safe return of the child to the home; and, if the child
has been placed outside the home for less than 15 of the
most recent 22 months, that there is a substantial likelihood
that the parent will not meet these conditions as of the date
on which the child will have been placed outside the home
for 15 of the most recent 22 months ….

(Emphasis added.) Thus, if Vance “has been placed outside the home for less than
15 of the most recent 22 months,” then the jury would be called on to consider the
“substantial likelihood” question.

¶6 Here, however, counsel for all parties, including Victor, agreed at
the hearing that Vance had been placed outside Victor’s home for more than 15 of
the most recent 22 months. All counsel also signed a stipulation which was read
to the jury, detailing that Victor had been continuously incarcerated from
October 31, 2019, through October 2022.

4
The County points out that although “[t]he TPR petition was filed three days before
[Vance] had been placed outside the parental home by disposition order for 15 of the most recent
22 months,” by the time “[Victor] was personally served with a copy of the TPR petition on
September 20, 2021 at Dodge Correctional Institution, the threshold ‘15 of 22 months’ had been
met.” Moreover, in a May 2, 2022 response to the State’s request for admissions, Victor admitted
that, as of that date, Vance had been in continuous placement outside of the home for nearly two
years.

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No. 2025AP1914

¶7 Nevertheless, on appeal, Victor asserts in conclusory fashion that
because the petition had been filed three days before Vance had reached the point
of having been placed outside his home for 15 of the most recent 22 months, the
“substantial likelihood” element applies here. He additionally asserts, without
citation to any supportive authority, that the 15-month clock started not on June 3,
2022, when the circuit court entered the dispositional order placing Vance outside
the home, but on January 12, 2023, when the circuit court entered an “Order for
Revision of Dispositional Order with Termination of Parental Rights Notice,”5
which continued Vance’s out of home placement. As the appellant, Victor bears
the burden of showing us how the circuit court erred. See Gaethke v. Pozder,
2017 WI App 38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381. He does not satisfy this
burden because he has failed to develop a legal argument in support of either of
these assertions, “and we will not abandon our neutrality to develop arguments”
for him. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI
App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82; State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues
inadequately briefed.”); Associates Fin. Servs. Co. of Wis. v. Brown, 2002 WI
App 300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56 (declining to consider
conclusory and undeveloped arguments).

5
We note that this January 12, 2023 order, while included in Victor’s appendix, is not a
part of our record. As his entire appeal relies on this order, we could deny it on this basis alone.
See United Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733
N.W.2d 322 (stating that the appendix is not the record); Choinsky v. Germantown Sch. Dist. Bd.
of Educ., 2019 WI App 12, ¶34, 386 Wis. 2d 285, 926 N.W.2d 196 (“We will not consider
arguments based on facts or documents that are unavailable or not referenced in the record.”),
aff’d sub nom. Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13, 390 Wis. 2d 209, 938
N.W.2d 548.

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No. 2025AP1914

¶8 Moreover, Victor has forfeited these assertions. We independently
review whether Victor “has forfeited [his] right[s] to raise an issue on appeal.”
Loren Imhoff Homebuilder, Inc. v. Taylor, 2022 WI 12, ¶10, 400 Wis. 2d 611,
970 N.W.2d 831. We agree with the County that Victor did not raise any
objection, including a constitutional one, in the circuit court that the time period
Vance had been placed outside the home pursuant a CHIPS disposition order was
less than 15 of the most recent 22 months.6 Our supreme court has stated,

[i]t is a fundamental principle of appellate review that
issues must be preserved at the circuit court. Issues that are
not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on
appeal.

State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. In other
words, the party will have forfeited those issues. See id., ¶11 n.2. “Application of
th[is] forfeiture rule is appropriate in many instances to ensure that parties and
circuit courts have ‘notice and a fair opportunity to address issues and arguments,
enabling courts to avoid or correct any errors with minimal disruption of the
judicial process.’” State v. D.E.C., 2025 WI App 9, ¶67, 415 Wis. 2d 161, 17
N.W.3d 67 (2024) (citation omitted). It “promotes both efficiency and fairness,
and ‘go[es] to the heart of the common law tradition and the adversary system.’”
Huebner, 235 Wis. 2d 486, ¶11 (alteration in original; citation omitted). Our
supreme court recognized that this rule accomplishes many objectives:

6
In fact, at the hearing, counsel agreed that Vance had been placed outside Victor’s
home for more than 15 of the most recent 22 months and that it was appropriate for the jury to
consider the facts and circumstances as they existed on the date the petition was filed.

Victor admits on appeal that counsel neither objected to any of the relevant matters he
now complains about nor tried to admit post-August 31, 2021 evidence. He does not claim that
counsel performed ineffectively.

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No. 2025AP1914

[r]aising issues at the [circuit] court level allows the
[circuit] court to correct or avoid the alleged error in the
first place, eliminating the need for appeal. It also gives
both parties and the [circuit] judge notice of the issue and a
fair opportunity to address the objection. Furthermore, the
waiver rule encourages attorneys to diligently prepare for
and conduct trials. Finally, the rule prevents attorneys from
“sandbagging” errors, or failing to object to an error for
strategic reasons and later claiming that the error is grounds
for reversal.

Id., ¶12 (citations omitted). Because Victor did not raise any of the issues in the
circuit court that he now raises (with insufficient development) on appeal, he has
forfeited them, and we decline to address them.

By the Court.—Order affirmed.

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

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