State v. B. L.

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.
April 11, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2023AP8 Cir. Ct. No. 2020TP54

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

B.L.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.
No. 2023AP8

¶1 DONALD, P.J.1 Barry appeals an order involuntarily terminating
his parental rights to his daughter, Alice.2 On appeal, Barry contends that: (1) the
circuit court erred in regards to the admission of Barry’s criminal history; and
(2) the circuit court erred when it found that it was in Alice’s best interest to
terminate Barry’s parental rights. For the reasons discussed below, we reject
Barry’s arguments and affirm.

BACKGROUND

¶2 Alice was born on October 16, 2015. On August 25, 2016, the
Division of Milwaukee Child Protective Services (DMCPS) took physical custody
of Alice due to neglect by her mother, Mary. At the time Alice was removed from
Mary’s care, Barry was incarcerated.3 Alice was placed into a foster home where
she continued to reside for approximately six years, except for a five-month period
where she was reunified with her mother.

¶3 On March 9, 2020, the State filed a petition to terminate Barry’s
parental rights to Alice. The petition alleged that Barry had failed to assume
parental responsibility, pursuant to WIS. STAT. § 48.415(6), and Alice remained a
child in need of continuing protection or services (CHIPS), pursuant to
§ 48.415(2). According to the petition, Barry had failed to meet the conditions of
return, which included that he resolve his criminal cases, that he not allow

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, we refer to the Respondent-Appellant, his child, and the mother of
his child in this confidential matter using pseudonyms rather than their initials.
3
According to S.S., one of the case managers involved in this case, Barry’s expected
date of release from custody is at the end of 2025 or the beginning of 2026.

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No. 2023AP8

violence in his home, and that he provide safe care for his child. In addition, the
petition alleged that due to Barry’s incarceration, he had not made himself
available to parent or provide for Alice.

¶4 Prior to the start of the fact-finding hearing, the State filed a motion
in limine notifying the court and the parties of its intent to introduce evidence of
Barry’s criminal history. In particular, the State indicated that it planned to
present the substantive facts of three cases: Milwaukee County Circuit Court Case
Nos. 2016CF1774, 2016CF2743, and 2016CF4259.

¶5 In the first case, No. 2016CF1774, Barry was charged with violating
the sex offender registry. According to the criminal complaint, Barry was
convicted of first-degree sexual assault in 1998, and on September 9, 2015, had
failed to comply with the statutory sex offender reporting requirements. Barry
pleaded guilty as charged.

¶6 In the second case, No. 2016CF2743, Barry was charged with nine
counts: two counts of substantial battery, three counts of battery, and four counts
of disorderly conduct, all as a repeater and with the domestic abuse assessment. In
short, according to the criminal complaint, on January 31, 2015, Barry became
upset with Mary and hit her in the face with his fist, kicked her three or four times
in the face, punched her, dragged her by the hair, and shoved her into the stairs.4
Subsequently, on October 7, 2015, nine days before Alice’s birth, Barry began to
accuse Mary of taking money from him. Barry then grabbed her by the neck and
shoved her head into a wall. In addition, on October 10, 2015, Barry yelled at

4
Mary was treated at the hospital for lacerations to her face and nose and was diagnosed
with a broken tailbone.

3
No. 2023AP8

Mary for talking about him to other people and punched her in the side of the
head. Mary left, and Barry followed her to a store, where he repeatedly punched
her in the head. Barry entered a guilty plea to two counts of substantial battery
and three counts of battery. The other counts were dismissed and read-in.

¶7 In the third case, No. 2016CF4259, Barry was charged with three
counts of felony intimidation of Mary, all as a repeater with the domestic abuse
assessment. According to the complaint, Barry knowingly and maliciously
attempted to prevent or dissuade Mary from going to court. Barry entered a plea
to one count, and the other two counts were dismissed and read-in.

¶8 A four-day jury trial took place. Relevant to this appeal, during the
testimony of case manager S.S., over the objection of Barry, the State moved into
evidence the certified criminal court record, the certified criminal complaint, and
the certified judgment of conviction for each of the three cases. In particular, S.S.
testified that in case No. 2016CF1774, while Alice was in utero, Barry knowingly
failed to comply with the sex offender registry reporting requirements. In regards
to case Nos. 2016CF2743 and 2016CF4259, parts of the complaints were read and
published to the jury.5

¶9 Outside the presence of the jury, the circuit court found that Barry’s
criminal history from the time of Alice’s conception onward was relevant because
it put Barry at risk of being removed from her life as a result of incarceration.

5
We note that the complaint in case No. 2016CF2743 states in part that Mary “indicated
that [Barry] was selling crack cocaine from the apartment and wanted her to answer the door and
complete a sale for him.” After this sentence of the complaint was read to the jury, the circuit
court interjected and instructed the jury that “[Barry] has not been convicted of any drug-related
offenses that are going to be talked about in this trial. So that part of the complaint you should
not accept as being true.”

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No. 2023AP8

Additionally, the court stated that the domestic violence offenses were relevant to
Barry’s safety as a parent, the reasons for removal, and the conditions for return.
The court stated that:

These are the central facts of this case. These are why
[Alice] was not considered safe in [Barry’s] care. The in
utero and early childhood domestic violence is a hazardous
living environment that he exposed [Alice] to which is
central to the failure to assume ground.

The court further found that because Barry had pleaded guilty he “effectively …
admitted the allegations” and it was “fair game” for the State to go through the
details that led to the criminal convictions.

¶10 During deliberations, the jury requested “[c]ase manager notes, all
evidence and Exhibits 1 through 30.” The circuit court responded that no case
manager notes were admitted into evidence and provided select exhibits. This did
not initially include any of the criminal document exhibits as the State indicated
that they needed to be redacted before being sent to the jury.

¶11 With respect to case Nos. 2016CF1774 and 2016CF2743, the State
redacted the references in the criminal complaints to the 1998 sexual assault of a
child conviction. In regards to the criminal complaint for case No. 2016CF4259,
only the first two pages, which primarily included the charges, were sent to the
jury.

¶12 Barry’s trial counsel agreed with the State’s redactions, but argued
that the entire probable cause section for case No. 2016CF2743 should be
excluded because it re-emphasized the wrongful conduct that Barry engaged in
against Mary. The circuit court denied the request stating that the probable cause
section had been read to the jury and there was no reason the jury could not have it

5
No. 2023AP8

in written form. Additionally, the court stated that the “evidence is what the
evidence is,” and if the court omitted it, it would be “de-emphasizing part of the
State’s case.”

¶13 Ultimately, the jury found that the State had proven both grounds—
continuing CHIPS and failure to assume parental responsibility. Based on the
jury’s verdict, the circuit court found that Barry was unfit.

¶14 At the dispositional hearing, the State called Alice’s foster mother
and the current case manager, O.D. Barry testified and also presented testimony
from his half-brother, A.F., and his mother, C.L. Of note, A.F. testified that he
was willing to parent Alice and Barry testified that he believed A.F. would be best
for Alice since A.F. had children of his own around her age and showed good
parenting skills. Likewise, C.L. testified that A.F. appeared to be a wonderful
parent to his children and his home would be safe and suitable for Alice. After the
conclusion of testimony, the circuit court determined that it was in Alice’s best
interests to terminate Barry’s parental rights.

¶15 This appeal follows. Additional relevant facts are referenced below.

DISCUSSION

¶16 On appeal, Barry contends that: (1) the circuit court erred in regards
to the admission of Barry’s criminal history; and (2) the circuit court erred when it
found that it was in Alice’s best interest to terminate Barry’s parental rights. We
address each issue in turn.

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No. 2023AP8

I. Admission of Criminal History

¶17 Barry first contends that the circuit court erroneously admitted the
certified criminal complaints because the circuit court did not properly create a
record on how its discretion was exercised and Barry did not adopt the admissions
as his own. We disagree.

¶18 A circuit court’s decision to admit evidence is reviewed 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 evidence if the court exercised discretion in accordance with accepted legal
standards and the facts of record.” Id.

¶19 To start, here, the circuit court properly made a record. The court
found that Barry’s criminal history was relevant to the failure to assume parental
responsibility ground because it put Barry at risk of being removed from Alice’s
life as a result of incarceration. See Tammy W.-G. v. Jacob T., 2011 WI 30, ¶23,
333 Wis. 2d 273, 797 N.W.2d 854 (stating that a fact-finder should consider the
parent’s actions throughout the entirety of the child’s life when determining
whether a parent has assumed parental responsibility). The court also specifically
stated that the domestic violence offenses were relevant to whether Alice was safe
in Barry’s care. The court explained that the domestic violence created a
hazardous living environment, which is “central” to the question of whether Barry
failed to assume parental responsibility. See id., ¶22 (stating that a fact-finder may
consider whether a parent exposed his or her child to a hazardous living
environment when determining whether a parent has assumed parental
responsibility).

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No. 2023AP8

¶20 In addition, the circuit court found that the factual allegations against
Barry were not hearsay because they were admissions by a party opponent. An
admission by a party opponent is a statement offered against a party and is a
“statement of which the party has manifested the party’s adoption or belief in its
truth[.]” WIS. STAT. § 908.01(4)(b)2. The certified criminal court record for each
of the three cases at issue reflects that Barry entered a plea and stipulated to the
facts of the complaints. This evinces an unambiguous and knowing adoption of
the facts. See State v. Rogers, 196 Wis. 2d 817, 831-32, 539 N.W.2d 897 (Ct.
App. 1995). Thus, the circuit court did not err in concluding that the facts in the
complaints were admissible.6

¶21 Second, Barry contends that he was denied due process. In support
of his argument, Barry points to parts of the criminal complaints referencing his
1998 first-degree sexual assault conviction. This information, however, was
redacted from the complaints prior to sending them to the jury. As a result, this
court does not discern any error in this respect.

¶22 Barry also contends that the criminal complaints, court records, and
judgments of conviction contain information that had no bearing on the issues in
this case. Barry alleges that the court records show that he exercised certain legal
and constitutional rights, such as demanding a jury trial and negotiating pleas, and
the complaints and judgments of conviction contain information about charges that

6
The State also suggests that the certified criminal complaints were admissible as
judicially noticed facts under WIS. STAT. § 902.01, or as exceptions to the hearsay rule under
WIS. STAT. § 908.03(22). Because we conclude that the complaints were admissible under WIS.
STAT. § 908.01(4)(b)2., we do not address the State’s other theories. See Ehlinger v. Hauser,
2010 WI 54, ¶66, 325 Wis. 2d 287, 785 N.W.2d 328 (stating that appellate courts should
generally decide cases on the narrowest possible grounds).

8
No. 2023AP8

were dismissed. Even if, however, this court assumes this information was
irrelevant, any error in admitting it was harmless. It is unclear how this
information prejudiced Barry or affected his substantial rights. See WIS. STAT.
§ 805.18(2); Waukesha Cnty. v. Steven H., 2000 WI 28, ¶57, 233 Wis. 2d 344,
607 N.W.2d 607.

¶23 Moreover, in closing instructions, the circuit court specifically
instructed the jury that:

[d]uring the trial, some reference was made to criminal
behavior for which [Barry] has not been convicted. You
are not to consider this as competent evidence nor are you
to assume [Barry] has actually committed those acts. You
may not consider this information in any way when
reaching your verdicts.

This instruction presumptively cured any potential prejudice to Barry with respect
to criminal behavior for which he was not convicted. See State v. Jennaro, 76
Wis. 2d 499, 508, 251 N.W.2d 800 (1977) (stating that limiting instructions “are
presumed to cure the prejudicial effect of erroneously admitted evidence”).

¶24 Third, Barry argues that the fact-finding hearing was “saturated”
with the fact that there was a no-contact order; however, the no-contact order was
only in effect as a condition of bail and no bail was posted. The plain language of
the order, however, reflects that there was a standalone no contact order. The no
contact order states that “It is ordered, effective immediately, and also as a
condition of release in this case, the defendant have absolutely no contact” with
Mary (capitalization omitted; underlines in original.). Thus, contrary to Barry’s
argument, the no contact order was in effect regardless of whether bail was posted,
and we discern no error in this respect.

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No. 2023AP8

¶25 Finally, Barry contends that the circuit court erroneously exercised
its discretion by saying “blanketly that all the evidence should be available to the
jury.” The circuit court, however, did not allow the jury to view all of the exhibits.
Further, in regards to the criminal complaints that were submitted to the jury, as
stated above, certain portions of the documents were redacted. Therefore, for all
of the reasons above, we reject Barry’s arguments that the circuit court
erroneously exercised its discretion during the fact-finding hearing.

II. Decision to Terminate Parental Rights

¶26 Barry contends that terminating his parental rights was an erroneous
exercise of discretion.

¶27 The circuit court’s decision whether to terminate parental rights is
discretionary. Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d 855 (Ct.
App. 1996). When assessing whether termination is warranted, the circuit court is
required to focus on the child’s best interests. WIS. STAT. § 48.426(2); Sheboygan
Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶28, 255 Wis. 2d 170, 648 N.W.2d 402.
To make this decision, the court considers, but is not limited to, the following
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.

(e) The duration of the separation of the parent from the
child.

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No. 2023AP8

(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.

Sec. 48.426(3).

¶28 Barry admits that the circuit court addressed each of the required
factors, but essentially argues that the evidence should be weighed differently.
However, the weight and the credibility of the evidence are solely for the circuit
court to determine. See Bonstores Realty One, LLC v. City of Wauwatosa, 2013
WI App 131, ¶6, 351 Wis. 2d 439, 839 N.W.2d 893. Here, the circuit court
assessed the credibility of the witnesses, and determined that termination was in
Alice’s best interests based on each of the six factors set forth in WIS. STAT.
§ 48.426(3).

¶29 The circuit court found that Alice was very likely to be adopted and
the foster parents had continually demonstrated their commitment to her. The
court observed that Alice was 10 months old at the time of her removal and was
currently six-years old and had some behavioral issues.

¶30 The court further found that Alice did not have a substantial
relationship with Barry or any extended paternal family members and would not
be harmed by severing those relationships. The court stated that Alice was too
young to understand the proceedings and make a decision, but she was certainly
bonded to the foster parents and her siblings in the home. Additionally, given that
the foster parents’ home was the only home that she has a conscious memory of,

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No. 2023AP8

the court stated that “certainly I could infer that if she could express her wishes,
she would want to stay where she is.”7

¶31 Finally, the circuit court found that Alice had been separated from
Barry the majority of her life, and that termination would enable her to enter into a
more stable and permanent family relationship. The court stated that neither A.F.
nor Barry seemed to have any appreciation for Alice’s needs or understanding of
child development.

¶32 Therefore, the record reflects the circuit court properly weighed the
evidence and considered the necessary factors in determining that termination of
Barry’s parental rights was in the best interests of Alice.

By the Court.—Order Affirmed.

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

7
We note that Barry contends that there was no evidence of the wishes of Alice, but only
the preference of the Guardian ad Litem who recommended that Barry’s parental rights be
terminated. This however overlooks that Alice’s foster mother testified that Alice wished to be
adopted and that she calls their residence “home.”

12