State v. R. J. S.

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.
February 7, 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. 2024AP2186 Cir. Ct. No. 2023TP134

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.R.H.S., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

R.J.S.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
LAURA GRAMLING PEREZ, Judge. Affirmed.
No. 2024AP2186

¶1 COLÓN, J.1 Roy appeals from the circuit court’s order terminating
his parental rights to his daughter Kim.2 Roy challenges the sufficiency of the
evidence supporting the State’s alleged grounds to terminate his parental rights
and argues that the circuit court erroneously exercised its discretion when it found
that the termination was in Kim’s best interest. For the following reasons, this
court affirms the circuit court’s order.

BACKGROUND

¶2 Kim was born in April 2022. Shortly after her birth, Kim was taken
into temporary physical custody by the Division of Milwaukee Child Protective
Services (DMCPS) due to concerns about Kim’s safety stemming from her
mother’s substance abuse during her pregnancy with Kim and Roy’s involvement
by providing Kim’s mother with drugs.

¶3 In December 2022, the circuit court found that Kim was a child in
need of protection or services (CHIPS). The CHIPS dispositional order outlined
the conditions that must be met for Kim to be safely returned to her parents’ care.
These conditions required Roy to commit no crimes, supervise and place Kim’s

1
These appeals are 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.

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 [thirty] 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, we adopt the pseudonyms used by the State to refer to the family in
this confidential matter. See WIS. STAT. RULE 809.19(1)(g).

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No. 2024AP2186

needs above his own, and provide safe care for her. To help Roy meet these
conditions, DMCPS was ordered to make a reasonable effort to provide him with
the following services: urine testing and drug treatment services if necessary,
“individual therapy, parenting assistance/classes, [and] case management.”

¶4 On August 30, 2023, the State filed a petition for the termination of
Roy’s parental rights.3 As grounds for the termination of Roy’s parental rights the
State alleged that Kim remained a child in need of protection or services under
WIS. STAT. § 48.415(2) (continuing CHIPS) and that Roy failed to assume
parental responsibility under § 48.415(6). A jury trial was held during which
testimony was heard from the initial assessment specialist who placed Kim in out
of home care, Roy, two prior case managers, the prior case supervisor, and the
current case manager.

¶5 At trial Roy testified that he failed to meet the conditions of return
and discussed how his incarceration disrupted his progress in meeting the
conditions. He agreed that he had been arrested after a traffic stop incident in
February 2023 during which police stopped his vehicle for driving in excess of
100mph and found a loaded firearm, that he was prohibited from having, and
controlled substances on his person. As a result and pursuant to plea negotiations,
Roy pled guilty to the felon in possession of a firearm charge and was
incarcerated.

¶6 Roy testified that prior to his incarceration he completed one urine
test and did not recall receiving any other referrals for further testing. Regarding

3
The State also sought to terminate Kim’s mother’s parental rights. The mother’s rights
are not at issue in this appeal.

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No. 2024AP2186

parenting, he stated that he attended some of the parenting classes referred by his
case manager but did not complete them. Roy further testified that fourteen
supervised visitations were available for him and Kim, and does not dispute that
he failed to attend all of the scheduled visits and was late to some of them. He
also discussed how he did not feel comfortable reaching out to the foster parents
himself and would instead rely on his mother to contact the foster parents for
updates on Kim.

¶7 Roy’s first case manager corroborated Roy’s testimony that he had
only completed one urine test; however, she also testified that she had discussed
the importance of continuous testing with Roy and had made multiple referrals for
additional tests that he never completed. She also discussed how Roy had never
gone through the process to become Kim’s legally adjudicated father and was
therefore unable to sign consents for any of Kim’s medical treatments. Roy’s
current case manager also testified that Roy had not been legally adjudicated as
Kim’s father since she took over the case and that this posed a barrier to providing
Kim with necessary services.

¶8 After hearing all of the witness’s testimony, the jury found that the
State had proven both the continuing CHIPS and failure to assume parental
responsibility grounds. Roy subsequently moved for judgment notwithstanding
the verdict and the circuit court denied the motion stating, “I do believe that the
evidence submitted at trial fairly supports the verdict that was rendered by the
jury[.]” The court then found Roy unfit and proceeded to the dispositional phase.

¶9 At disposition the circuit court heard from the foster mother, the
current case manager, and Roy. The foster mother testified that she had been
caring for Kim since Kim was eleven days old as well as for Kim’s biological

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No. 2024AP2186

half-sister, who was eleven years old at the time, whom the foster mother had
previously adopted. The foster mother explained that Kim has a bond with
herself, her husband, and Kim’s half sister, and that Kim refers to her foster
parents as mom and dad. She also stated that she is committed to adopting Kim
and meeting all of her future needs. She further testified that she believes it is
important for Kim to maintain a bond with Roy and Kim’s paternal grandmother,
and that she would be willing to allow for Roy to continue to have contact with
Kim post-adoption so long as it is safe and appropriate.

¶10 The current case manager corroborated the foster mother’s testimony
and opined that Kim did not have substantial emotional bonds with either Roy or
her paternal grandmother. Roy then testified that he would be willing to complete
his conditions of return and participate in the court ordered services after he is
released from incarceration. He also emphasized that he loves Kim and is highly
motivated to parent her.

¶11 The circuit court ultimately found that it was in Kim’s best interests
to terminate Roy’s parental rights. In deciding so the court considered the
circumstances and made findings regarding the factors listed in WIS. STAT.
§ 48.426. The court found that the likelihood of adoption was “very high”; that
Kim had been living with the foster parents since she was eleven days old; and
that Roy has “some way to go yet before becoming stable enough to become the
full-time caregiver for [Kim].”

¶12 The circuit court discussed Kim’s relationships with her biological
family members. The court found that Kim did not have a substantial relationship
with any family members other than her half sister. The circuit court explained
that Kim had a relationship with her paternal grandmother but that this relationship

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No. 2024AP2186

was not substantial because her grandmother only visited her once in person and
participated in only “a handful of video visits[.]” Regarding Roy, the court
recognized that “[Roy] tried his best” and “wanted to establish a substantial
relationship,” but he never had sufficient contact with Kim necessary to establish a
substantial relationship with her. The court also found that it would not cause Kim
harm to sever the legal relationship between Roy and Kim and noted that their
“emotional relationship is one that can continue” and is “incumbent on [Roy] and
[the foster parents] to do the things necessary to make sure that that continues.”

¶13 Roy appeals. Additional relevant facts are discussed below.

DISCUSSION

¶14 Termination of parental rights proceedings involve two phases: a
grounds phase to determine whether there are grounds to terminate a parent’s
rights, and a dispositional phase, to determine whether termination is in the child’s
best interests. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶¶24-28, 255
Wis. 2d 170, 648 N.W.2d 402. “[T]he petitioner must prove the allegations
[supporting grounds for termination] in the petition for termination by clear and
convincing evidence.” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶22, 246 Wis. 2d
1, 629 N.W.2d 768 (alteration in original; citation omitted). If grounds for
termination are found by the fact finder then the parent is found “unfit” under WIS.
STAT. § 48.424(4), and the case moves to the dispositional phase, at which the
child’s best interests are the “prevailing factor” to determine the disposition. Julie
A.B., 255 Wis. 2d 170, ¶¶26, 28; WIS. STAT. § 48.426(2).

¶15 Roy challenges the sufficiency of the evidence supporting both the
continuing CHIPS and failure to assume parental responsibility grounds.

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No. 2024AP2186

¶16 The State has the burden to prove every element of the continuing
CHIPS and failure to assume parental responsibility grounds it alleged by clear
and convincing evidence. See St. Croix Cnty. DHHS v. Michael D., 2016 WI 35,
¶28, 368 Wis. 2d 170, 880 N.W.2d 107. “Our standard of review in a challenge to
the sufficiency of the evidence is whether there is any credible evidence to sustain
the verdict.” Id., ¶29. We review this question independently and “consider the
evidence in the light most favorable to the verdict.” Tammy W-G. v. Jacob T.,
2011 WI 30, ¶¶17, 39, 333 Wis. 2d 273, 797 N.W.2d 854.

¶17 First, Roy argues that the evidence fails to support that DMCPS
made a reasonable effort to provide him services.

¶18 In order to prove the continuing CHIPS ground, the State must prove
that DMCPS “made a reasonable effort to provide the services ordered by the
court.”4 WIS. STAT. § 48.415(2)(a)2.b. “‘[R]easonable effort’ means an earnest
and conscientious effort to take good faith steps to provide the services ordered by
the court which takes into consideration the characteristics of the parent or
child, … the level of cooperation of the parent … and other relevant circumstances
of the case.” Sec. 48.415(2)(a)2.a.

¶19 Roy argues that DMCPS did not give him enough assistance while
he was incarcerated. In support of this argument, he points to his own testimony
about how he was making some progress prior to his incarceration to argue that it

4
There are other requirements to establish continuing CHIPS under WIS. STAT.
§ 48.415(2); however, Roy does not dispute that the State has proven these elements, so we do
not discuss them. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

7
No. 2024AP2186

can be inferred that he must not have received sufficient help since he did not
complete the conditions of return.

¶20 There is ample credible evidence in the record to support the jury’s
finding that DMCPS made a reasonable effort to provide Roy with the court
ordered services. Both of Roy’s former case managers and the former case
supervisor explained that—prior to Roy’s incarceration—he was provided with
multiple referrals for parenting services and urine testing. Roy testified that he
was given the opportunity to engage in some of the court ordered services. He
also testified that his case workers would reach out to him and that he received
referrals for services like supervised visitation.

¶21 Although Roy argues that his incarceration required DMCPS to do
more to get him to participate in the court ordered services, Roy’s unavailability to
participate in certain services due to his incarceration was a relevant consideration
regarding whether DMCPS made a reasonable effort. See Sheboygan Cnty.
DHHS v. Tanya M.B., 2010 WI 55, ¶81, 325 Wis. 2d 524, 785 N.W.2d 369. The
current case manager testified that she was unable to make referrals for services
due to Roy’s incarceration, and would have if Roy had been released from
custody. She explained how she had discussed individual therapy with Roy and
that she was ready to make a referral; however, she was unable to do so because
Roy had been incarcerated about six days after she took over the case.
Furthermore, the current case manager still maintained contact with Roy while he
was incarcerated to keep him updated and discuss his progress.

¶22 Additionally, the “level of cooperation of the parent” is taken into
consideration when determining whether DMCPS made a reasonable effort. See
WIS. STAT. § 48.415(2)(a)2.a. Testimony from Roy’s first case manager and case

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No. 2024AP2186

supervisor indicated that Roy only completed one urine test despite receiving
multiple referrals and he failed to complete the parenting program referred by the
case managers. Furthermore, the current case manager testified that after Roy told
her that he was participating in some courses to better himself while incarcerated
she had asked him to provide her with the certificates or the name of the social
worker so she could coordinate with him or her; however, Roy never provided any
of the requested information.

¶23 Although Roy maintains that DMCPS did not do as much as he
believes it should have, there is credible evidence in the record that supports the
jury’s finding that DMCPS made a reasonable effort to provide him the services
ordered by the circuit court.

¶24 Second, Roy argues that the evidence does not support that he lacked
a substantial relationship with Kim because he expressed his love and concern for
Kim, participated in this case, and worked on completing the conditions of return.

¶25 To establish that Roy failed to assume parental responsibility the
State must prove that Roy did not have a “substantial parental relationship” with
Kim. See WIS. STAT. § 48.415(6)(a). “‘[S]ubstantial parental relationship’ means
the acceptance and exercise of significant responsibility for the daily supervision,
education, protection and care of the child.” Sec. 48.415(6)(b). The circuit court
considers the totality of the circumstances, including “any support or care, or lack
thereof” the parent provides; “reasons why a parent was not caring for or
supporting [his or] her child[;] and exposure of the child to a hazardous living
environment” to determine whether there is a substantial parental relationship.
Tammy W-G., 333 Wis. 2d 273, ¶3.

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No. 2024AP2186

¶26 Roy points to testimony that supports he made some progress
towards developing a relationship with Kim; however, the credible evidence in the
record supports the jury’s finding that he did not have a substantial one with her.
Roy testified that, although he provided Kim with items such as diapers “a couple
times,” he was not responsible for Kim’s daily care and was not providing
financial support. He did not become her legally adjudicated father; he
participated in only a limited number of supervised visits with Kim; and had not
had any contact with Kim after he was incarcerated, including through birthday
cards or letters. Therefore, we conclude that there is credible evidence in the
record to sustain the jury’s verdict.

¶27 Finally, Roy argues that the circuit court erroneously exercised its
discretion when it found that termination of Roy’s parental rights was in Kim’s
best interests. Roy concedes that the circuit court considered the requisite
statutory factors5 and instead argues that how the court weighed the evidence and
factors was erroneous. Specifically, Roy contends that the court did not give
enough weight to Roy’s testimony about his efforts to be involved in Kim’s life
and that the court placed too much weight on Roy’s incarceration and the foster
parents’ willingness to allow Roy to have contact with Kim in the future.

¶28 “A circuit court’s decision to terminate parental rights is
discretionary.” State v. B.W., 2024 WI 28, ¶70, 412 Wis. 2d 364, 8 N.W.3d 22.

5
To determine what disposition is in the best interests of the child, the circuit court must
consider the following the factors: (a) “[t]he likelihood of the child's adoption after termination”;
(b) the child’s age and health; (c) whether the child has any substantial relationships with his or
her family and “whether it would be harmful to the child to sever these relationships”; (d) the
child’s wishes; and (f) “[w]hether the child will be able to enter into a more stable and permanent
family relationship as a result of the termination[.]” WIS. STAT. § 48.426(3).

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No. 2024AP2186

“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.” Id. (citation omitted).
“[I]t is not our function to review questions as to weight of testimony and
credibility of witnesses. These are matters to be determined by the trier of fact and
their determination will not be disturbed where more than one reasonable
inference can be drawn from credible evidence.” Johnson v. Merta, 95 Wis. 2d
141, 151-52, 289 N.W.2d 813 (1980). Furthermore, “[i]n its discretion, the court
may afford due weight to an adoptive parent’s stated intent to continue visitation
with family members, although we cannot mandate the relative weight to be
placed on this factor.” State v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606,
610 N.W.2d 475.

¶29 We will not reweigh the evidence in this case. See Johnson, 95
Wis. 2d at 151-52. Based on our review of the record, the circuit court relied on
credible evidence and considered each factor without “hinging” its determination
on any one factor such as the foster parent’s “unenforceable promise” of allowing
future contact between Roy and Kim. See B.W., 412 Wis. 2d 364, ¶¶76-77.
Therefore, we conclude that the circuit court did not erroneously exercise its
discretion.

CONCLUSION

¶30 We conclude that the jury’s findings, that the State had proven the
continuing CHIPS and failure to assume parental responsibility grounds, were
supported by credible evidence. We also conclude that the circuit court did not
erroneously exercise its discretion when it determined that the termination of
Roy’s parental rights was in Kim’s best interest. Accordingly we affirm.

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No. 2024AP2186

By the Court.—Order affirmed.

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

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