Oneida County v. J. B.

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 1, 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. 2025AP213 Cir. Ct. No. 2023TP3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

ONEIDA COUNTY,

PETITIONER-RESPONDENT,

V.

J. B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Oneida County:
DANIEL L. OVERBEY, Judge. Affirmed.
No. 2025AP213

¶1 GILL, J.1 Joseph2 appeals from an order terminating his parental
rights to his son, Isaac. On appeal, Joseph argues that the circuit court erroneously
exercised its discretion during the dispositional phase of the termination of
parental rights (TPR) process by failing to explicitly consider one of the statutorily
required factors for determining Isaac’s best interests. Specifically, Joseph argues
that the court failed to consider whether Isaac had substantial relationships with
Joseph or with the paternal family members who wished to help raise Isaac, and
instead considered if Isaac would be harmed if he were removed from his foster
family. Joseph also argues that the court failed to consider if the relationship
between Isaac and his paternal grandparents “was possible and had been
frustrated” by the County’s “inaction.”3 We reject Joseph’s arguments and affirm
the circuit court’s order.

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

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.” 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 and to protect confidentiality, we refer to the appellant in this
matter using a pseudonym, rather than his initials, and we do the same for any of Joseph’s family
members referenced in this opinion.
3
A contested proceeding for the termination of parental rights involves a two-step
procedure. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648
N.W.2d 402. The first step is a factfinding hearing, in which a jury or circuit court determines
“whether any grounds for the termination of parental rights have been” proved. Id., ¶26; WIS.
STAT. § 48.424(3). The termination proceedings then move to the second step, a dispositional
hearing, at which the circuit court must consider the best interests of the child. WIS. STAT.
§ 48.426(2).

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No. 2025AP213

BACKGROUND

¶2 In May 2023, Oneida County filed a TPR petition, alleging that
grounds existed to terminate Joseph’s parental rights based upon Isaac’s status as a
child continuing to be in need of protection or services under WIS. STAT.
§ 48.415(2) (continuing CHIPS).4 Following a trial, a jury found that grounds
existed to terminate Joseph’s parental rights to Isaac, and the matter proceeded to
the dispositional phase.

¶3 During the dispositional hearing, the circuit court heard testimony
from Jacqueline Zivko, a social worker for the County, and Elizabeth Zastrow, an
employee with Lutheran Social Services (LSS). Zivko testified that Isaac, who
was five years old at that time, had been removed from Joseph’s care when Isaac
was two years old and that since Isaac’s removal, Joseph had never visited Isaac,
despite Zivko’s offers to set up visitation. Zivko stated that Isaac had been living
with his foster family for almost two years and that Isaac’s foster family had
expressed an interest in adopting him. Zivko further stated that the only biological
family member that Isaac had contact with was his maternal aunt, with whom
Isaac’s foster family voluntarily allowed visits.

¶4 Zivko testified that she investigated Joseph’s parents as a potential
placement for Isaac, but she decided that they were not an appropriate placement
due to their medical issues. Specifically, Zivko mentioned that Joseph’s father has

4
The County later filed an amended TPR petition in which it alleged that, in addition to
the ground of continuing CHIPS, Joseph abandoned Isaac, pursuant to WIS. STAT. § 48.415(1).
During the grounds phase of the TPR process, the County decided to proceed on only the ground
of continuing CHIPS. Joseph does not raise any arguments regarding the County’s amended TPR
petition alleging the ground of abandonment or the County’s decision to proceed only on the
continuing CHIPS ground. Accordingly, we do not discuss the abandonment ground further.

3
No. 2025AP213

dementia and that living with Joseph’s father would be “a very dramatic
environment to expose a child of [Isaac’s] age to.” Zivko acknowledged that she
heard testimony during the grounds phase of the TPR process that Joseph’s father
had a relationship with Isaac before Isaac was removed from his familial home,
but she stated that she did not do any specific research into that relationship.

¶5 In describing Isaac’s relationship with his foster family, Zivko stated
that Isaac refers to his foster parents as “mom and dad,” that his foster family takes
him to all of his doctor’s appointments, and that his foster family involves him in
extracurricular activities. Zivko saw no reason to remove Isaac from his current
placement because “[h]e has got stability there. The family he’s currently placed
with is really the only sense of stability he has had. I think [removal] would cause
more confusion for him than it would be a benefit for him.” Zivko further stated
that if Joseph’s parental rights were not terminated, Isaac would remain with his
foster family, and the CHIPS case would continue.

¶6 Zastrow opined that Isaac was adoptable and that adoption was
“substantially likely.” Zastrow testified that Isaac’s foster parents were interested
in adopting him and that there were no reported concerns from social workers
regarding the foster parents adopting Isaac. Zastrow noted, however, that she had
not yet met with the foster family because “the case was just referred” to her, and
her visits typically take place after a TPR occurs.

¶7 The circuit court stated that it had reviewed the guardian ad litem’s
(GAL) report and agreed with the report’s analysis of each of the statutory factors
for considering Isaac’s best interests. The court subsequently adopted and
incorporated the GAL’s report into its findings.

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No. 2025AP213

¶8 The circuit court noted that it had considered each of the factors for
determining Isaac’s best interests and that all of the factors supported the
termination of Joseph’s parental rights. The court then listed each of the factors
provided in WIS. STAT. § 48.426(3) and made the following findings:

[W]hether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to sever these relationships. I’ve already covered
that.

I don’t believe that to the extent relationships exist, if they
are terminated by the adoptive or foster parents, I don’t
believe it would be harmful to the child. The child is too
young to express his wishes, but the child has de facto
expressed his wishes by the way that he relates to and
refers to his foster parents as mom and dad…. I think it is
indicative of his desire to stay in that stable relationship.

And then which kind of leads right into the next one, which
is whether the child has been under a more stable and
permanent relationship as a result of the termination. And
that I just covered, and I think for sure that is the case. And
then of course the duration of separation…. [I]t’s been
years.

The court then entered an order terminating Joseph’s parental rights. 5 Joseph now
appeals.

5
It does not appear that the circuit court made an explicit oral finding regarding Isaac’s
adoptability. In its oral ruling, the court stated that it had considered all of the factors set forth in
WIS. STAT. § 48.426; and, in its written order, the court stated that it had considered the
likelihood of Isaac’s adoption after termination. We note that “[a]lthough the proper exercise of
discretion contemplates that the circuit court explain its reasoning, when the court does not do so,
we may search the record to determine if it supports the court’s discretionary decision.” Randall
v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. The evidence presented at the
dispositional hearing was uncontested that Isaac was an adoptable child. Further, Joseph does not
raise any arguments on appeal regarding Isaac’s adoptability. Accordingly, the record supports
the court’s implicit finding that Isaac was adoptable.

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No. 2025AP213

DISCUSSION

¶9 Joseph argues that the circuit court erroneously exercised its
discretion during the dispositional phase by failing to consider whether Isaac had
substantial relationships with Joseph or with the paternal family members who
wished to help raise Isaac, and instead considered if Isaac would be harmed if he
were removed from his foster family. Joseph further argues that the court erred by
failing to consider whether a relationship between Isaac and his paternal
grandparents “was possible and had been frustrated” by the County’s “inaction.”

¶10 The ultimate determination of whether to terminate parental rights is
discretionary with the circuit court and we will sustain the court’s ultimate
determination if there is a proper exercise of discretion. State v. Margaret H.,
2000 WI 42, ¶¶27, 32, 234 Wis. 2d 606, 610 N.W.2d 475. A proper exercise of
discretion requires the court to apply the correct standard of law to the facts
presented. Id., ¶32.

¶11 The best interests of the child is the prevailing factor and proper
legal standard during the dispositional phase of the TPR process. See id., ¶33;
State v. B.W., 2024 WI 28, ¶7, 412 Wis. 2d 364, 8 N.W.3d 22.

In considering the best interests of the child … 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.

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No. 2025AP213

(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). “While it is within the province of the circuit court to
determine where the best interests of the child lie, the record should reflect
adequate consideration of and weight to each factor.” Margaret H., 234 Wis. 2d
606, ¶35.

¶12 Joseph argues that the circuit court “did not discuss or consider any
possible harm from severing the legal relationship with the child’s father, or from
the paternal family members who wished to help raise [Isaac]. Instead, it focused
only on the potential harm to the child from moving him from his foster parents.”

¶13 The record contradicts Joseph’s argument. As noted above, the
circuit court adopted and incorporated the GAL’s report into its findings of fact.
The report discussed and analyzed each of the required factors in WIS. STAT.
§ 48.426.6 Further, the court mentioned the substantial relationships factor during

6
Regarding whether Isaac had a substantial relationship with Joseph and his paternal
family relationships, the GAL’s report stated

[Isaac] has not seen [Joseph] nor had any interaction with
[Joseph] in at least four years. He refers to [his foster parents as
[“Mom” and “Dad”]. [Isaac] has no memory of his [biological]
father and likely has no emotional or psychological connection
to his [biological] father. I do not believe it will be harmful to
[Isaac] to sever his relationship with his [biological] father.

(continued)

7
No. 2025AP213

its oral ruling and then found that “to the extent relationships exist, if they are
terminated by the adoptive or foster parents, I don’t believe it would be harmful to
the child.”

¶14 While the circuit court did not explicitly discuss any potential harm
that would result from severing Isaac’s relationship with Joseph and his other
paternal family members, the above findings of fact were sufficient to address that
factor. Joseph’s argument to the contrary amounts to an argument that the court
must use the “magic words” regarding this factor, and is unpersuasive. See B.W.,
412 Wis. 2d 364, ¶78 (noting that “magic word” requirements are strongly
disfavored). The court considered all of the factors it was required to consider,
and the record supports the court’s determination that it was in Isaac’s best
interests to terminate Joseph’s parental rights.

¶15 Joseph next argues that the circuit court erroneously exercised its
discretion by “declin[ing] to consider testimony” relating to the relationship
between Isaac and his paternal grandparents. Joseph appears to be referring to an

Likewise, [Isaac’s] last personal interaction with extended
paternal family members was four or more years ago and
predated the initiation of the CHIPS case. [Isaac’s former foster
placement] reported that she never had any contact with [Isaac’s]
paternal grandfather or his step[-]grandmother when she cared
for [Isaac]. [Isaac’s] paternal grandmother, [Joseph’s] mother,
sent a couple of Christmas and/or birthday cards to [Isaac] early
on but had no direct contact with him nor any contact
whatsoever with the [former foster placement]. [Joseph’s]
step[-]sister reached out via text messaging when [Isaac] was
first placed with the [former foster family] but the contact was
not sustained. [Isaac] has no connections whatsoever, whether
emotional, psychological, or otherwise with any extended
paternal family members and he will not be harmed by severing
those legal relationships.

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No. 2025AP213

instance when the court sustained an objection, during the testimony portion of the
dispositional phase, on the relevance of testimony regarding Zivko’s efforts to set
up visitation between Isaac and his paternal grandparents. In making this
argument, it is unclear whether Joseph is asserting that the court failed to consider
all of the factors in WIS. STAT. § 48.426(3) or that the court erroneously excluded
the admission of that evidence.

¶16 If Joseph intends to argue that the circuit court failed to consider
Isaac’s relationship with his paternal grandparents, and thereby failed to consider
WIS. STAT. § 48.426(3)(c), Joseph misunderstands the court’s ruling. During the
evidentiary portion of the dispositional phase, an attorney objected to the
relevance of the evidence regarding Zivko’s efforts to set up visitation between
Isaac and his paternal grandparents, arguing that Zivko’s efforts only pertained to
a ruling made during the grounds phase of the TPR process.7 The court noted that
the question was “repeating testimony we had in the jury trial,” but it allowed
counsel to respond to the objection. Counsel argued that this testimony was
relevant to whether Isaac had a substantial relationship with his paternal
grandparents. The court then sustained the objection, stating, “I want you to be
mindful that I’m aware of the testimony that was previously given on that topic
and it’s noted. In fact, I’m looking at the transcript, and it’s in there, as well. So
go ahead with a different line.”

¶17 The circuit court did not categorically decline to consider all
evidence regarding Isaac’s relationship with his paternal grandparents. Rather, the

7
The objection was raised by Isaac’s mother’s counsel. Her parental rights are not at
issue in this case.

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No. 2025AP213

court explicitly stated that it was already aware of that testimony and invited
Joseph’s counsel to pursue another line of questioning. This does not mean that
the court did not consider the evidence. Instead, the court determined it had
already received evidence concerning Isaac’s relationship with his grandparents,
and that additional evidence on this issue offered during the disposition phase of
the TPR was repetitive and cumulative. Accordingly, the court properly
considered WIS. STAT. § 48.426(3) and thereby did not erroneously exercise its
discretion.8

By the Court.—Order affirmed.

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

8
To the extent that Joseph intends to argue that the circuit court made an erroneous
ruling on the admissibility of evidence, we reject that argument for the same reasons.

10