State v. D.Q. ( 2020 )

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.
September 22, 2020
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. 2020AP1109 Cir. Ct. No. 2018TP229
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.C., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
D.Q.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
GWENDOLYN G. CONNOLLY, Judge. Affirmed.
No. 2020AP1109
¶1 DUGAN, J.1 D.Q. appeals the circuit court’s order terminating his
parental rights. This court concludes that there is credible evidence to sustain the
circuit court’s finding that D.Q. is an unfit parent, and it concludes that the circuit
court did not erroneously exercise its discretion in finding that terminating D.Q.’s
parental rights was in K.C.’s best interests. Thus, this court affirms.
BACKGROUND
¶2 K.C. was born on July 22, 2015, to N.E.C. D.Q. was aware of
N.E.C.’s pregnancy within approximately two weeks after conception and suspected
he was the father. He visited N.E.C. and K.C. in the hospital the day after K.C. was
born. At the hospital, D.Q. noticed that K.C. was born with a genetic abnormality
that he and other of his siblings were born with, thereby strengthening his suspicion
that he was K.C.’s father. Despite his suspicion, D.Q. refused N.E.C.’s request for
him to take a paternity test at the time K.C. was born because “at the time [he] didn’t
really have time to go through all that,” and he followed through with his plans to
move to Texas in or around September of 2015.
¶3 Due to her own substance abuse and tendency towards violent
behavior, N.E.C. was unable to provide a safe place for K.C. to live, and on July 31,
2015, K.C. was removed from N.E.C.’s care and placed in a foster home. K.C. was
subsequently found to be a child in need of protection or services (CHIPS) on
August 26, 2015, and a dispositional order was entered on September 21, 2015,
placing K.C. outside the parental home until either N.E.C. or K.C.’s father could
meet certain conditions for K.C.’s return. D.Q. was still living in Milwaukee,
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
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Wisconsin, during much of this time but did not take any responsibility for K.C.’s
care, despite his suspicion that he was K.C.’s father.
¶4 K.C. was returned to N.E.C.’s care on July 21, 2017, as a trial
reunification under a CHIPS order of supervision. This order was extended on
August 31, 2017. During the time that K.C. was placed with N.E.C., N.E.C. lived
with J.B. as a couple. N.E.C. and J.B. had a son together, and J.B. was the primary
care provider for both K.C. and K.C.’s half-brother. During the placement hearing,
J.B. testified that he “did a lot.” He described what he meant by “a lot” by saying,
“[He] would help take care of [K.C.], change her diapers, you know, pick her up
from day care, drop her off at day care, make sure she got dressed in the morning to
go to day care, you know, watch her while [N.E.C.] would go to work ….”
¶5 However, sometime in April of 2018, N.E.C. became intoxicated and
violent, and J.B. and their son moved out of the home the couple shared. An
emergency placement order was issued on May 14, 2018, following this incident,
and K.C. was returned to foster care. The dispositional order placing K.C. in a foster
home, which set forth certain conditions that N.E.C. had to meet before K.C. could
be returned to N.E.C., was revised and extended on July 2, 2018. The July 2, 2018
order contained a notice concerning grounds to terminate parental rights, and the
conditions for K.C.’s return. The conditions for K.C.’s biological father included
that he undergo a Parental Capacities Family Assessment, participate in
recommended treatment or services, make himself available for court hearings,
become the legally adjudicated father, and maintain contact with K.C. As it applied
to both parents, the conditions required that the parents provide safe care for K.C.,
which included such things as providing a safe and stable home environment.
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¶6 After K.C. was returned to foster care, the State filed a petition to
terminate the parental rights of N.E.C. and the “unknown” father.2 This petition
was filed on September 25, 2018, and alleged grounds for termination under WIS.
STAT. § 48.415(6) for a failure to assume parental responsibility.
¶7 N.E.C. appeared at the initial hearing on October 15, 2018, but the
hearing was adjourned to November 12, 2018, to allow the public defender’s office
to appoint counsel for N.E.C.3 The hearing was adjourned a second time and
rescheduled for December 3, 2018, when N.E.C. requested a substitution of the
judge.
¶8 D.Q. was visiting family that November and reached out to N.E.C.
N.E.C. brought D.Q. to a family drug treatment court where she informed
Ms. Mariah Ahles, K.C.’s case manager from SaintA,4 that D.Q. was K.C.’s father.
Ms. Ahles informed D.Q. of the upcoming hearing on December 3, 2018. D.Q.
appeared at the December 3, 2018 hearing before the Honorable David Feiss, the
newly assigned judge. However, the December 3, 2018 hearing was adjourned yet
again, for D.Q. to undergo paternity testing.
¶9 Paternity test results confirmed that D.Q. was the father, and the State
filed an amended petition on January 8, 2019, identifying D.Q. as the father and
2
The first page of the petition indicates that the father is unknown. However, the petition
later states that the “alleged father” is an individual by the first name of “Deandre” or “Deandro.”
The petition also notes that there is no Declaration of Paternal Interest on file with the State of
Wisconsin Department of Children and Families.
3
The Honorable Christopher Foley presided over the hearings that took place in October
and November of 2018.
4
SaintA is a human services agency that has a contract with the Division of Milwaukee
Child Protective Services (DMCPS) to provide services to children. See sainta.org.
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alleging grounds for termination of parental rights as to both N.E.C. and D.Q. under
both WIS. STAT. § 48.415(2) and (6), Continuing Need of Protection or Services and
Failure to Assume Parental Responsibility, respectively.
¶10 D.Q. appeared with counsel for the hearing on the petition on
February 7, 2019.5 D.Q. contested the petition and requested a jury trial, which was
then scheduled for September 30, 2019. Subsequently, on February 28, 2019, D.Q.
filed a request to change K.C.’s placement to his mother’s house. 6 On March 15,
2019, the circuit court held an evidentiary hearing addressing the change of
placement and granted the State’s request to place K.C. with J.B. K.C. remained
with J.B. for the remainder of the proceedings.
¶11 The September 30, 2019 jury trial was delayed and moved to
November 11, 2019. In preparation for the trial, the circuit court addressed pretrial
matters on November 4 and 11, 2019. As a result of the circuit court’s pretrial ruling
regarding the application of WIS JI—CRIMINAL 324A,7 on the following day,
November 12, 2019, N.E.C. and D.Q. entered no contest pleas to the continuing
CHIPS grounds alleged in the amended petition. The circuit court determined the
pleas were entered knowingly and voluntarily and accepted them.
5
The Honorable Gwen Connolly presided over the proceedings beginning with the
February 28, 2019 hearing and issued the order from which D.Q. now appeals.
6
The State previously filed a notice of change of placement for K.C. on November 7,
2018, seeking to change K.C.’s placement to J.B.’s home. N.E.C. contested this notice of
placement, but she did not contest D.Q.’s notice of placement to his mother’s house. K.C.’s
guardian ad litem (GAL) supported the State’s change of placement request to place K.C. in J.B.’s
home.
7
The jury instruction WIS JI—CRIMINAL 324A lists the elements that the State must prove
to determine if a parent is unfit.
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¶12 After accepting the no contest pleas, the circuit court took testimony
to prove up the State’s case. The State offered exhibits that were moved into
evidence, including the August 2015 CHIPS finding and the dispositional orders
related to K.C.’s CHIPS case. Ms. Ahles also testified on behalf of the State.
Ms. Ahles testified as to the dates that K.C. was in the care of someone other than
her parents and that the July 2018 dispositional order placing K.C. in care outside
of a parental home “ha[d] been in place for over 15 months.” She then confirmed
that the notice concerning grounds to terminate parental rights required by WIS.
STAT. § 48.356(2) was “attached to that dispositional order.” Ms. Ahles
additionally testified that the dispositional order contained conditions for each
parent to meet to have K.C. returned to their care and testified that neither parent
met those conditions.
¶13 As it relates specifically to D.Q., Ms. Ahles testified that she first
learned of D.Q. in November of 2018, and upon learning about D.Q., she
immediately began providing services to him in an effort to help him satisfy the
conditions for K.C.’s return. Specifically, Ms. Ahles testified that, upon receipt of
the paternity test results in December of 2018, she arranged a meeting with D.Q. on
January 16, 2019, to arrange for D.Q. to undergo a Parental Capacity Assessment.
Importantly, Ms. Ahles testified that D.Q. had not met with Ms. Ahles, had not
started the process to become K.C.’s legally adjudicated father, and had not spent
time with or visited K.C. until after the petition was filed. Ms. Ahles testified that
it was her understanding that D.Q. “had only seen [K.C.] that first day after she was
born at the hospital” but then “he had not been in [K.C.]’s life for three and half
years,” even though K.C. was being exposed to domestic violence and substance
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No. 2020AP1109
abuse while living with N.E.C.8 Ms. Ahles concluded her testimony by stating that
she “ha[d] been ready, willing and able to refer [D.Q.] for services” had he come
forward sooner in the process or if she “had anyway to contact him at all.”
¶14 Pursuant to the testimony provided by Ms. Ahles and the documentary
evidence, the circuit court found that the State had proven the continuing CHIPS
grounds, by clear and convincing evidence, to establish that N.E.C. and D.Q. were
unfit parents.
¶15 The dispositional hearing following this finding took place over the
course of three days on January 13 and 15, 2020, and February 6, 2020. Over the
course of these hearings, the circuit court took testimony from the individuals
involved in K.C.’s life, including N.E.C., D.Q., D.Q.’s relatives, J.B., and
Ms. Ahles. As a result of these hearings, the circuit court found that it was in K.C.’s
best interests to terminate the parental rights of N.E.C. and D.Q. The circuit court
considered D.Q.’s recent involvement in K.C.’s life, but it ultimately placed more
weight on the testimony regarding J.B.’s significant and consistent role in K.C.’s
life.
¶16 D.Q. now appeals the circuit court’s order terminating his parental
rights to K.C.
DISCUSSION
¶17 “Wisconsin has a two-part statutory procedure for the involuntary
termination of parental rights.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271
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N.E.C. has a history of alcohol and drug abuse as well as a history of violent behavior
towards those around her. While living with J.B., N.E.C. had become intoxicated and violent
towards J.B., resulting in J.B. moving out of the home.
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Wis. 2d 1, 678 N.W.2d 856. In the first phase, called the grounds phase, “the
petitioner must prove by clear and convincing evidence” that at least one of the
twelve grounds enumerated in WIS. STAT. § 48.415 exists. Steven V., 271 Wis. 2d
1, ¶¶24-25; see also WIS. STAT. § 48.31(1). In the second phase, often referred to
as the dispositional phase, the court must decide if it is in the child’s best interest
that “the parent’s rights be permanently extinguished.” Steven V., 271 Wis. 2d 1,
¶27; see also WIS. STAT. § 48.426(2);.
¶18 In his appeal, D.Q. argues that there is insufficient evidence to sustain
the circuit court’s finding in the grounds phase that he is an unfit parent. He puts
forth two reasons as to why the evidence is insufficient: (1) he was never provided
with the notice required by WIS. STAT. § 48.415(2)(a)1. and (2) the conditions for
K.C.’s return were not narrowly tailored to his circumstances and thus impossible
to comply with. In addition to his challenge to the sufficiency of the evidence in the
first phase, D.Q. challenges the circuit court’s finding in the dispositional phase. He
argues that the circuit court erroneously exercised its discretion when it found that
it was in K.C.’s best interests to terminate his parental rights. This court addresses
each argument in turn.
I. There is sufficient evidence to sustain the circuit court’s
finding in the grounds phase that D.Q. is an unfit parent
¶19 Under the grounds phase of the proceedings here, the State as the
petitioner was required to prove by clear and convincing evidence that D.Q. was an
unfit parent pursuant to WIS. STAT. § 48.415(2), the grounds in the petition to which
D.Q. pled no contest. Section 48.415(2) provides:
Continuing need of protection or services … shall be
established by proving any of the following:
(a) 1. That the child has been adjudged to be a child … in
need of protection or services and placed, or continued in a
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placement, outside his or her home pursuant to one or more
court orders under s. 48.345, 48.347, 48.357, 48.363, 48.365,
938.345, 938.357, 938.363 or 938.365 containing the notice
required by s. 48.356(2) or 938.356(2).
2. a. In this subdivision, “reasonable 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.
b. That the agency responsible for the care of the child and
the family … has made a reasonable effort to provide the
services ordered by the court.
3. That the child has been placed outside the home for a
cumulative total period of 6 months or longer pursuant to an
order listed under subd. 1 … and that the parent has failed to
meet the conditions established for the safe return of the
child to the home ….
¶20 D.Q. challenges the evidence put forth by the State to prove the notice
requirement found in WIS. STAT. § 48.415(2)(a)1. and to prove his failure to satisfy
the conditions to allow him to care for K.C. “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 Cty. DHHS v. Michael D., 2016 WI 35, ¶29, 368 Wis. 2d
170, 880 N.W.2d 107. Our review also requires statutory interpretation, “which is
a question of law we review de novo.” Id., ¶15.
¶21 WISCONSIN STAT. § 48.415(2)(a)1. requires that a court order, under
one of the listed statutes, contains the notice required by WIS. STAT. § 48.356(2).
The notice required by WIS. STAT. § 48.356(2) is a notice to the parents of any
grounds for the termination of parental rights and the conditions necessary to have
the child returned. “The plain language of § 48.415(2) requires that in a
[termination of parental rights] case where the underlying ground to terminate is
based on continuing CHIPS, the statutory notice requirements are satisfied when at
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No. 2020AP1109
least one of the CHIPS orders contains the written notice required under
§ 48.356(2).” Michael D., 368 Wis. 2d 170, ¶24. Thus, when our supreme court
addressed whether there was sufficient evidence to satisfy the notice requirement, it
concluded that there was sufficient evidence to meet the first element, “the notice
element,” when one of the court orders “contained the written notice prescribed by
statute.” Id., ¶30.
¶22 In this case, the July 2, 2018 order contained a notice of grounds to
terminate parental rights and the conditions for K.C.’s return, i.e., the notice
required by WIS. STAT. § 48.356(2). This order was moved into evidence at the
prove up hearing. Furthermore, Ms. Ahles confirmed through her testimony that
the notice was attached to the dispositional order. Accordingly, this court concludes
that there is credible evidence to satisfy the notice element in WIS. STAT.
§ 48.415(2)(a)1.
¶23 D.Q. additionally argues there was insufficient evidence to support
the circuit court’s finding that he is unfit because it was impossible for him to
comply with the conditions to have K.C. returned to his care due to the fact that the
conditions were not narrowly tailored to his circumstances. D.Q. argues that he just
now took a paternity test to prove that he is K.C.’s father and could not have
complied with the conditions until after the results of the test. In other words, D.Q.
appears to argue it was impossible for him to comply with any conditions because
he was not aware that K.C. was his daughter. This court disagrees.
¶24 To satisfy the conditions, D.Q. was required to undergo a Parental
Capacities Family Assessment, participate in recommended treatment or services,
make himself available for court hearings, become the legally adjudicated father,
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and maintain contact with K.C. He was also required to provide safe care for K.C.,
which included such things as providing a safe and stable home environment.
¶25 As Ms. Ahels testified at the prove up hearing, by the time the
amended petition was filed on January 8, 2019, D.Q. had completed none of these
conditions, some of which would have required minimal effort on D.Q.’s part. In
her testimony, Ms. Ahles did acknowledge that D.Q. accepted limited services from
her to satisfy the conditions for K.C.’s return after the amended petition was filed.
¶26 However, Ms. Ahles testimony at the prove up hearing also indicates
that D.Q. visited K.C. in the hospital when she was born and was aware of K.C.’s
existence, yet D.Q. was not a part of K.C.’s life and did not make himself available
for any services Ms. Ahels’ could provide until now. Furthermore, Ms. Ahles also
testified to the fact that she “ha[d] been ready, willing and able to refer [D.Q.] for
services” to work on satisfying the conditions for K.C.’s return from the time the
conditions were imposed. Indeed, as soon as D.Q. stepped forward as K.C.’s father,
Ms. Ahles immediately scheduled a meeting with D.Q. to begin providing services
to him although it was past the filing of the amended petition. However, even
considering D.Q.’s efforts past this date, it is clear that D.Q. still had not participated
in all the services offered and recommended by Ms. Ahles nearly a year after the
paternity test and still had not satisfied the conditions of K.C.’s return.
¶27 D.Q. compares his situation to Kenosha Cty. DHS v. Jodie W., 2006
WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, and argues that the conditions for K.C.’s
return were not narrowly tailored to his situation and particular needs and were,
therefore, impossible for him to meet. Simply put, this court does not see this as a
case with impossible conditions of return.
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¶28 In Jodie W., our supreme court reversed a circuit court’s finding that
a mother was unfit because it was impossible, due to her incarceration, for the
mother to comply with the court-ordered condition that she obtain suitable housing
for her child’s return. See id., ¶56. The court concluded that, in the case of a
parent’s incarceration, “the court-ordered conditions of return are tailored to the
particular needs of the parent and child.” Id., ¶51. The court then went on to
recognize that the mother had cared for her son for the first two years of his life
without the need for services and that she had a substantial relationship with her son
because of the care she had already provided to him. Id., ¶53. The court also
recognized “that Jodie made significant progress toward meeting many of the other
conditions of return.” Id., ¶54. As applied to Jodie W., the condition requiring her
to obtain housing while she was incarcerated violated her right to substantive due
process because it was not narrowly tailored to account for her circumstances. Id.,
¶55.
¶29 That is not the case here. Following Jodie W.’s lead and taking into
account D.Q.’s circumstances and particular needs, this court concludes that it was
not impossible for D.Q. to satisfy the court-ordered conditions or for the responsible
agency (here the DMCPS) to provide him services. As Ms. Ahles testified, D.Q.
was aware of K.C.’s existence from the time of her birth but was not a part of K.C.’s
life until she was nearly three and a half years old. Her testimony also showed that
during D.Q.’s extended absence, K.C. was exposed to domestic violence and
substance abuse at the hands of N.E.C. and that K.C. spent the majority of her life
in foster care. Ms. Ahles testimony shows that no services were provided to D.Q.
until recently because he was entirely absent from K.C.’s life. Any impossibility in
D.Q.’s ability to satisfy the court-ordered conditions or to receive services from
DMCPS was of his own doing. He maintained no contact with K.C. and did not
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make himself available to be a part of her life, as the conditions required. The
conditions imposed on D.Q. could not have been any more narrowly tailored to meet
his circumstances when the circumstance was that D.Q. chose not to be part of
K.C.’s life.
¶30 In sum, this court concludes that there is credible evidence to sustain
the circuit court’s finding under the grounds phase that D.Q. is an unfit parent.
II. The circuit court did not erroneously exercise its discretion
in finding that terminating D.Q.’s parental rights were in
K.C.’s best interests
¶31 This court will uphold the circuit court’s decision to terminate
parental rights “if there is a proper exercise of discretion.” See State v. Margaret H.,
2000 WI 42, ¶32, 234 Wis. 2d 606, 610 N.W.2d 475. This requires that the circuit
court applied the correct standard of law to the facts of the case. Id. In making its
determination, “the best interests of the child is the paramount consideration” for
the circuit court. Id., ¶33. To establish this, the circuit court should reference the
factors set forth in WIS. STAT. § 48.426(3), and any other factors it relied upon, in
explaining on the record the basis for the disposition. Sheboygan Cty. DHHS v.
Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648 N.W.2d 402. The factors to be
considered are:
(1) “The likelihood of the child’s adoption after
termination.”
(2) “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.”
(3) “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.”
(4) “The wishes of the child.”
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(5) “The duration of the separation of the parent from the
child.”
(6) “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).
¶32 The circuit court structured its finding in the dispositional phase of the
proceedings according to the factors contained in WIS. STAT. § 48.426(3) and
provided a detailed analysis of each factor on the record. Under the first factor, the
circuit court noted that J.B. “had been a caregiver in [K.C.]’s life … since she was
about six months old” and had testified that “he is prepared to adopt [K.C.]” The
circuit court, therefore, found that K.C. was “highly adoptable” upon the termination
of parental rights and placed significant weight on this factor.
¶33 As it relates to the second factor, the circuit court found that K.C. has
behavioral issues. In addressing K.C.’s behavioral issues, the circuit court found it
significant that J.B. has regularly and actively participated in K.C.’s therapy and
that “she was doing very well now in part because of her response to therapy and
the support she receives from [J.B.]” Also, as D.Q. testified at the dispositional
hearing, he was not a part of K.C.’s therapy, and he was not even aware that K.C.
was in therapy. The circuit court then found that this factor weighs in favor of
terminating parental rights.
¶34 The circuit court then addressed the third factor and found that, even
though D.Q.’s visits with K.C. had gone well, K.C. did not have a substantial
relationship with D.Q. Addressing the fourth factor, the circuit court did not place
much weight on the fourth factor given that K.C. was only four years old. Then it
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considered the fifth factor, and the circuit court did find it significant that D.Q. was
absent from K.C.’s life for the first three years. The circuit court stated, “This
evidence I think demonstrates that essentially this child has been separated from
both of her biological families ….” The circuit court found that these factors
weighed in favor of terminating parental rights.
¶35 Finally, under the sixth factor, the circuit court found that K.C.’s life
would be more stable if N.E.C.’s and D.Q.’s parental rights were terminated. The
circuit court found it significant that K.C. was already under J.B.’s care, and had
been in J.B.’s care in the past. The circuit court did, however, recognize D.Q. was
recently involved in K.C.’s life, but it also recognized that D.Q.’s testimony showed
a lack of commitment to K.C.: “[D.Q.]’s testimony is he doesn’t have time for
individual therapy. He doesn’t have time to go and do the random UAs which would
then really very clearly demonstrate that he not using alcohol or other substances
improperly.” Thus, the circuit court found that this factor weighs in favor of
terminating parental rights.
¶36 In the end, the circuit court found it was in K.C.’s best interests to
terminate D.Q.’s parental rights, despite the fact that D.Q. now has a limited role in
K.C.’s life. The circuit court made a lengthy record weighing the factors under WIS.
STAT. § 48.426(3) and applied the proper legal standard to the facts of the case.
Accordingly, this court concludes that the circuit court properly exercised its
discretion when assessing the factors at the dispositional phase of the proceedings
and finding that the termination of parental rights was in K.C.’s best interests.
CONCLUSION
¶37 This court concludes that there is sufficient evidence to support the
circuit court’s finding that grounds exist under WIS. STAT. § 48.415(2) to find D.Q.
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is an unfit parent. This court also concludes that the circuit court properly exercised
its discretion in the dispositional phase of the proceedings when it found that
terminating D.Q.’s parental rights was in K.C.’s best interests. This court, therefore,
affirms the order of the circuit court terminating D.Q.’s parental rights.
By the Court.—Order Affirmed.
This order will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
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