State v. J. L. A.

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.
June 27, 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. 2023AP424 Cir. Ct. No. 2022TP7

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

J. L. A.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.
No. 2023AP424

¶1 WHITE, J.1 Julia appeals the order terminating her parental rights
to her daughter, Emma.2 Julia argues that her parental rights were not treated
separately from the parental rights of her husband, Joseph. She contends that the
evidence presented at the dispositional hearing did not warrant the termination of
her parental rights. Upon review, we conclude that the circuit court properly
exercised its discretion when it terminated Julia’s parental rights. Accordingly, we
affirm.

BACKGROUND

¶2 Julia and her husband, Joseph, are the parents of Emma, born in
December 2020. Emma was detained by the Division of Milwaukee Child
Protective Services (DMCPS) after her release from the Neonatal Intensive Care
Unit (NICU) in January 2021, where she had been treated for withdrawal
symptoms for opiates present at birth. Emma has remained in out-of-home care
throughout the pendency of this case.

¶3 The State filed the underlying petition for the termination of parental
rights (TPR) in January 2022. It alleged two grounds: (1) that Emma continued to
be a child in need of protection or services (CHIPS), pursuant to WIS. STAT.
§ 48.415(2); and (2) that Julia and Joseph each failed to assume parental
responsibility for Emma, pursuant to § 48.415(6). In June 2022, Julia and Joseph
each pled no contest to the ground of failure to assume parental responsibility in

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading and in the interest of confidentiality, we employ pseudonyms for
the parents and child at issue in this case. See WIS. STAT. RULES 809.19, 809.86

2
No. 2023AP424

the TPR petition. Upon Julia’s motion, the court ordered partially unsupervised,
expanded visitation for Julia with Emma, with a restriction that Joseph could not
be present during unsupervised visitation.

¶4 In October 2022, the TPR case proceeded to hearings over three
days. First, the State proffered evidence to prove the ground of failure to assume
parental responsibility to which both parents pled no contest. The family case
manager testified that she had previously worked with Julia and Joseph during
DMCPS actions involving their older children. She stated that Joseph told her that
he had not used any drugs since about 2014; however, Joseph failed to provide the
case manager with any documentation to support this claim. The case manager
testified that Julia reported being in methadone treatment for drug addiction, but
that she had used heroin during her pregnancy with Emma. The case manager
testified that Emma had been in out-of-home care her entire life, but that Julia had
consistent visitation with her and had attended most medical appointments. The
case manager explained that the safety concern for Julia was her “lack of
understanding of the safety concerns that are caused by [Joseph’s] ongoing
[alcohol and other drug use (AODA)].” Upon reviewing that evidence, the court
concluded that the ground existed and found Julia and Joseph to each be an unfit
parent.

¶5 The court then moved to the dispositional phase of the TPR. The
State called Emma’s foster mother, who testified about the willingness she and her
partner have to adopt Emma. The foster mother testified about Emma’s health
including withdrawal from opiates, GI and pulmonary issues, occupational therapy
for sensory overload, and play therapy. She testified about the extensive,
recurring, medical care Emma has needed for respiratory issues, including
nebulizer and steroid treatment, as well as chest physiotherapy. She testified about

3
No. 2023AP424

Emma’s contact with Julia and Joseph, Emma’s contact with her four older
siblings, which included the parents’ youngest biological son who was not in
contact with their parents after the TPR order in his case and his adoption.

¶6 The State then called the family case manager. She testified that she
had been involved with the family since 2015, when there were allegations of
sexual abuse and neglect of their four children, well before Emma was born. The
family case manager testified that when she began working with the family again
in 2021—when Emma was detained—the parents had recently obtained housing
after a long period of housing instability. She testified that Julia admitted to a
heroin addiction and sought treatment while pregnant with Emma. Although Julia
denied that there were domestic violence or controlling behaviors by Joseph, the
case manager had concerns about both issues. The family case manager testified
that Julia had maintained sobriety throughout this case.

¶7 The case manager testified that while Julia complied with, and had
clean random urine analysis (UA) screens, Joseph did not comply with the UA
testing. She testified that Joseph had a relapse in the summer of 2021; he tested
positive for cocaine, opiates, and fentanyl when he sought AODA treatment.
Joseph then failed to maintain contact with the case manager from December 2021
to June 2022. In July 2022—when Julia was granted individual partially
unsupervised visitation—Joseph refused residential AODA treatment, detox, or
day-treatment. The family case manager testified that there were safety concerns
because Joseph had long standing drug addiction issues and he was not
participating in the higher level of care recommended by his treatment providers.

¶8 The family case manager testified that she had discussed with both
Julia and Joseph that they were assessed together as a pair because they lived

4
No. 2023AP424

together and intended to stay together. She stated that from the beginning of the
case, she explained that “progress that one parent has made or lack of progress that
the other parent has made would have an influence on each other.” The case
manager testified that Julia had participated in individual therapy for about four
months, “but communicated that she struggled to identify areas that she really
needed to work on in therapy.” After a referral, Julia and Joseph participated in
couples counseling, and the therapist reported that they “struggled to identify any
areas of need in their relationship.” The case manager testified that Emma had a
positive relationship with both Julia and Joseph and enjoyed her visits with them.
Emma also had a positive relationship with her three oldest siblings, now
teenagers or adults.

¶9 The case manager testified that she was concerned because both
parents continued to deny that any physical or sexual abuse had occurred with the
older children, despite Joseph’s conviction and prison time for fourth degree
sexual assault of their older daughter. The case manager expressed concerns about
whether either parent could keep up with Emma’s medical needs because they
have not administered nebulizer breathing treatments during visitation. Further,
both parents smoke. She was also concerned because the younger teenage son had
not been enrolled in school, the oldest son had a criminal case history, and the
older daughter had a substance abuse problem prior to her death from a medical
condition.

¶10 During cross-examination, the family case manager testified that
Julia was in compliance with several conditions of return in the CHIPS action:
drug and alcohol treatment, required therapies, financial responsibility, and putting
parenting practices in place. She further stated that Julia, if she were alone or not
residing or in a relationship with Joseph, could provide a stable home for Emma.

5
No. 2023AP424

However, in the State’s redirect examination, the case manager testified that Julia
was not in compliance with the condition of return that required her to “stay away
from people, places, and things that trigger your use of drugs or alcohol” or to
“avoid friends and family who use drugs and alcohol.” She also testified that Julia
did not show that Emma’s “health and safety” was her “top priority” as
demonstrated by Julia continuing to be in a relationship with Joseph.

¶11 During closing arguments, the State acknowledged that although
Julia had made “significant progress,” the prosecutor did not believe it was in
Emma’s best interest that Julia be the legal parent. The prosecutor stated that “if it
was just [Julia], we probably would be at reunification already…. Unfortunately, I
don’t think we’re anywhere close to reunification as long as they stay as a united
pair.” The State argued that reunification for Julia alone was not an option, and
argued that Julia does not speak up when Joseph minimizes his drug abuse, his
abuse history, and his willingness to get help.

¶12 The guardian ad litem (GAL) argued in her closing argument that
while Julia had done a “remarkable job of maintaining sobriety … it’s going to be
a long struggle for her to maintain [sobriety], especially when she’s with someone
who is not doing that. She does not recognize the depth of [Joseph’s] problems.”
Further, the GAL argued that Julia and Joseph did not work on problem solving in
couples counseling for the “situation where [Joseph’s] behavior was endangering
[Julia’s] relationship with her daughter.”

¶13 Julia’s counsel argued in closing that as “the mother of this child …
[Julia] has certain due process rights, separate and apart from her husband, and she
has a liberty interest to parent her child as an individual,” and asked the court to
“take that into consideration.” The circuit court responded to Julia’s counsel,

6
No. 2023AP424

stating that she made a good point about Julia’s individual due process right, but
questioned how that impacted the best interests of the child. Julia’s counsel noted
that “[m]arriage is also something that’s a protected liberty interest.” The State
offered in rebuttal that while the parents had “their individual liberties and their
individual rights, [Julia] is not planning on acting as a parent by herself. She is
planning on raising this child with her husband in a shared home.” The State
asserted that the court should “look at them as a package deal if [it] is her plan” to
stay with Joseph.

¶14 On the final dispositional hearing date, the court first explained that
“we are at the best interests stage, but parents’ due process rights still loom over
the proceedings and must be remembered. And part of [Julia’s counsel’s]
argument, too, was that the [c]ourt needed to consider [Julia’s] rights somewhat
separately from [Joseph’s] rights.” The court reviewed the facts of the case and
the evidence presented during the hearing. It noted that “[Julia] does not
understand the safety concern about [Joseph’s] use of drugs.”

¶15 The court considered the six statutory factors in WIS. STAT.
§ 48.426(3)3 on the record, as required. First, the court found that Emma was a
3
In determining the disposition of a TPR petition, the circuit court must consider, but is
not limited to, the following six factors:

(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.
(continued)

7
No. 2023AP424

“very adoptable child” and that the foster parents were committed to adopting her.
Second, the court considered that Emma was now about two years old and her
health was “very much improved” since the time of her removal, when she was a
newborn going through opiate withdrawal. Emma had “lingering health needs”
including a “nebulizer[.]” The court found that “the evidence is overwhelming
that her health has become much, much better outside of the [parents’] care and
custody.”

¶16 Third, the court concluded that Emma has a relationship with her
biological parents, but that it is not substantial. On the question of whether it
would be harmless to legally sever the relationship, the court noted that contact
after the TPR was unenforceable because open adoption was not enacted in
Wisconsin, therefore, even with the court assuming that the contact between
Emma and her biological parents would stop, the court found that this factor still
weighed in favor of termination.

¶17 Fourth, the court found that Emma, at age two, was too young to
express her wishes, and that this factor did not weigh against termination. Fifth,
the court considered that the duration of separation could be considered,
objectively or subjectively, to be Emma’s entire life. She has never lived with her
biological parents.

(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.

WIS. STAT. § 48.426(3).

8
No. 2023AP424

¶18 Finally, the court considered the sixth factor to weigh very heavily in
the analysis. The court considered the condition of the foster placement to be
excellent. It considered that the foster parents expressed willingness to maintain
contact and visitation with Emma’s biological parents. It concluded Emma would
be able to enter into a more stable and permanent family relationship, most likely
with her current foster parents, if there was a termination. If the TPR were not
granted, it was likely that Emma would remain in foster care. The court concluded
that it was unlikely that Emma would ever be returned to her biological parents’
care in the short term “because of [Joseph’s] AODA problems, his stubbornness
regarding that.” Looking at long term, the court considered it uncertain if Julia
could maintain her sobriety. The court considered uncertainty to not be in the best
interest of the child when balancing stability and potential instability.

¶19 The court concluded that the TPR was in the best interests of the
child. It granted the State’s petitions and terminated parental rights over Emma as
to both Julia and Joseph.4

¶20 Julia appeals.

DISCUSSION

¶21 Julia argues that the circuit court erroneously exercised its discretion
when it granted the State’s TPR petition. She contends that the evidence does not
support the termination of her parental rights. She asserts that the court
erroneously intertwined her parental rights with her husband’s rights and denied
her individual right to due process. We conclude that the circuit court’s decision

4
Joseph’s case is not on appeal before this court.

9
No. 2023AP424

to terminate Julia’s parental rights was within its discretion. The court properly
considered the best interests of Emma. While the court recognized the importance
of Julia’s individual rights, it did not ignore the safety risks posed by Joseph’s
drug abuse and Julia’s failure to respond to those risks.

¶22 The decision to terminate parental rights is within the discretion of
the circuit court. See Gerald O. v. Susan R., 203 Wis. 2d 148, 152, 551 N.W.2d
855 (Ct. App. 1996). We will sustain a circuit court’s discretionary decision
unless the court erroneously exercised its discretion. WIS. STAT. § 805.17(2). A
circuit court properly exercises its discretion when it examines the relevant facts,
applies a proper standard of law, and using a demonstrated rational process
reaches a conclusion that a reasonable judge could reach. Dane Cnty. DHS v.
Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.

¶23 We begin with Julie’s contention that the evidence presented by the
State did not warrant the termination of her parental rights. She cites WIS. STAT.
§ 48.427(2), which provides that “[t]he court may dismiss the petition if it finds
that the evidence does not warrant the termination of parental rights.” This
essentially is a sufficiency of the evidence argument. “Our standard of review in a
challenge to the sufficiency of the evidence is whether there is any credible
evidence to sustain the verdict.” St. Croix Cnty. DHHS v. Michael D., 2016 WI
35, ¶29, 368 Wis. 2d 170, 880 N.W.2d 107. We review the evidence in the light
most favorable to the verdict. Tammy W-G. v. Jacob T., 2011 WI 30, ¶39, 333
Wis. 2d 273, 797 N.W.2d 854. Whether the evidence was sufficient is a question
of a law we review independently. Id., ¶17. In a trial to the court, its findings of
fact shall not be set aside unless clearly erroneous. WIS. STAT. § 805.17(2).

10
No. 2023AP424

¶24 Here, Julia points to the testimony from the family case manager that
she had complied the conditions of return in the dispositional order in the
underlying CHIPS case: she completed drug and alcohol treatment, she
participated in required therapies, she showed financial responsibility, and she put
parenting practices in place. She further relied on the case manager’s testimony
that if Julie were parenting alone or not with Joseph, she could provide a stable
home for Emma. Nevertheless, as the State elicited in the redirect examination of
the case manager, Julia was not in compliance with the condition of return that
required her to “stay away from people, places, and things that trigger your use of
drugs or alcohol” or to “avoid friends and family who use drugs and alcohol.”

¶25 The record reflects that the case manager’s major concern with
Julia’s parenting was that she did not understand the risks posed by Joseph’s drug
abuse, and that consequently, she did not protect Emma from potential harm.
However, the case manager also raised concerns about Julia’s parenting, including
her failure to participate in Emma’s therapies or to administer necessary
medication, exposing Emma to cigarette smoke at visits, lack of acknowledgement
of the risks smoking posed to Emma’s respiratory conditions, and safety concerns
resulting from Julia not being transparent about the history of abuse that has
happened in her home. Accordingly, we conclude that there was sufficient,
credible evidence presented to the court to support the court’s decision to
terminate Julia’s parental rights. See Michael D., 368 Wis. 2d 170, ¶29.

¶26 Looking to the court’s remarks, it considered several factors to
weigh in favor of termination. When the court considered the second factor about
Emma’s health, it found that Emma’s health was “very much improved” since the
time of her removal and that “the evidence is overwhelming that her health has
become much, much better outside of the [parents’] care and custody.” For the

11
No. 2023AP424

third factor, the court concluded that there was not a substantial relationship
between Emma and Julia—it was friendly and Emma knew and liked her parents,
but she had never lived with them. The court concluded that the sixth factor
weighed heavily in its analysis because stability was important. In that factor, the
court found that it was unlikely that Emma would ever be returned to her
biological parents’ care in the short term “because of [Joseph’s] AODA
problems[.]” Further, the court considered it uncertain if Julia could maintain her
sobriety long-term. Upon our examination of the record, this court concludes that
there was sufficient evidence to support the circuit court’s decision.

¶27 Alternatively, Julia frames her argument to assert that the circuit
court put too much weight into the sixth factor—in her words, that Emma could
not be returned home because of Joseph’s failures. Framed this way, Julia’s
argument still fails. The weight that the court assigns to each factor is within the
discretion of the circuit court, so long as the court “reflect[s] adequate
consideration of and weight to each factor” on the record. State v. Margaret H.,
2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475. Here, the court considered
each factor of WIS. STAT. § 48.426(3), on the record, and gave adequate
consideration to each factor. It is not problematic that the court considered the
sixth factor to be important and weigh heavily in the analysis. In fact, the record
reflects that the court considered the relevant facts under the proper standard of
law and demonstrated reasonable decision-making in its analysis. See Mable K.,
346 Wis. 2d 396, ¶39.

¶28 Julia’s second major argument is that her individual due process
rights were violated because no matter the progress made, she could still be denied
the right to parent Emma due to her husband’s failures. She contends that the
circuit court’s impermissibly intertwined the consideration of her parental rights

12
No. 2023AP424

and Joseph’s parental rights. She asserts that a TPR is not a collective action. The
statutes reflect that a TPR is an action against an individual parent. “If … the
grounds specified in § 48.415 are found to exist as to only one parent, the rights of
only that parent may be terminated without affecting the rights of the other
parent.” WIS. STAT. § 48.43(3). Further, the dispositions of a TPR petition
include that “[t]he court may enter an order terminating the parental rights of one
or both parents.” WIS. STAT. § 48.427(3). As the United States Supreme Court
held, “[t]he fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State.”
Santosky v. Kramer, 455 U.S. 745, 753 (1982). As examined below, we reject
this argument because the record reflects that circuit court did consider each parent
individually.

¶29 Our examination of the record shows that Julia’s rights were
terminated not because of her husband’s failures, but because of her own failures
to meet the conditions of return to be able to protect Emma from the potential
harm posed by Joseph on a full time basis. The court, the State, and the child
welfare system did not require Julia to leave her husband, or to give up her
fundamental right of marriage, in order to obtain placement of her child. Although
Julia points to testimony by the case manager that if she parented alone, she might
have been reunified with Emma, the court is not simply assessing whether she
satisfied the conditions of return. In the dispositional phase, the court is mandated
to consider the best interests of the child as its central determination. Sheboygan
Cnty. v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648 N.W.2d 402.

¶30 In support of her position, Julia contends that the circuit court erred
because it did not consider WIS JI—CHILDREN 302, which instructs the jury, in

13
No. 2023AP424

part, that it “must consider the evidence against each parent separately and
consider the evidence as to each ground separately. Each parent is entitled to
separate consideration.” We reject this argument primarily because the jury
instruction goes to the grounds phase of the TPR proceedings, to which Julia pled
no contest and waived her right to have a jury determine the issue. See WIS. STAT.
§ 48.424. The dispositional phase is a trial to the court. See WIS. STAT. § 48.427.
Without a jury, or even a role for the court as a trier of fact, no jury instructions
would be applicable. Further, this court presumes that the circuit court follows
law in an impartial fashion. See State v. Carprue, 2004 WI 111, ¶46, 274 Wis. 2d
656, 683 N.W.2d 31. As discussed above, our examination of the record reflects
that the circuit court did consider each parent’s individual parental rights in
making its considerations over whether the TPR was in Emma’s best interests.

CONCLUSION

¶31 For the reasons stated above, we conclude that the circuit court
properly exercised its discretion when it ordered the termination of Julia’s parental
rights to Emma.

By the Court.—Order affirmed.

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

14