Jefferson County DHS v. C. T. 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.
November 2, 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. 2023AP1404 Cir. Ct. No. 2022TP4
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.S., A PERSON UNDER THE
AGE OF 18:
JEFFERSON COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
C. T. S.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Jefferson County:
BENNETT J. BRANTMEIER, Judge. Affirmed.
No. 2023AP1404
¶1 KLOPPENBURG, P.J.1 C.T.S. appeals an order terminating his
parental rights to his biological son, K.S. C.T.S. argues that the Jackson County
Department of Human Services (the Department) failed to prove that there were
grounds for termination, and he also argues that the circuit court erroneously
exercised its discretion in determining that termination was in K.S.’s best interests.
I reject C.T.S.’s arguments and affirm.
BACKGROUND
¶2 The following facts are undisputed for the purposes of this appeal.
K.S., born in July 2019, is the non-marital son of C.T.S. and A.C. K.S. was born
prematurely and tested positive for marijuana, methadone, and other drugs at birth.
The resulting health complications led to K.S. being hospitalized for the first two
months of his life. Upon release from the hospital, K.S. was taken into protective
custody and placed in a foster home based on allegations that his mother A.C. had
physically abused K.S.’s half-sibling.
¶3 In November 2019, the Department filed a Child in Need of
Protection and Services (CHIPS) petition identifying K.S. as a child in need of
protection and services. By dispositional order entered in March 2020, the CHIPS
court found that K.S. was at risk of neglect and physical abuse from both parents,
noting that C.T.S “was present when physical abuse” of K.S.’s half-sibling
occurred and that C.T.S. “has not shown appropriate protective capacity.” The
dispositional order set forth conditions that C.T.S. and A.C. were required to meet
in order to obtain placement.
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.
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No. 2023AP1404
¶4 Over the next two years, K.S. remained in foster placement. A.C.
ultimately agreed to voluntarily terminate her parental rights to K.S. The
Department worked to facilitate visits between C.T.S. and K.S., but C.T.S.
attended only approximately 40% of the visits offered. For a period of over three
months (between February 6, 2022 and May 22, 2022) C.T.S. failed to attend any
scheduled visits or otherwise communicate with K.S.
¶5 In May 2022, the Department filed a petition to terminate C.T.S.’s
parental rights to K.S. Involuntary termination of parental rights (or “TPR”) cases
follow a “two-part statutory procedure.” Steven V. v. Kelley H., 2004 WI 47, ¶24,
271 Wis. 2d 1, 678 N.W.2d 856. “In the first, or ‘grounds’ phase,” the petitioner
must prove that “one or more of the statutorily enumerated grounds for
termination of parental rights exist.” Id.; WIS. STAT. § 48.31(1). In the second, or
dispositional, phase, the circuit court decides whether it is in the best interests of
the child that the parent’s rights be terminated. Steven V., 271 Wis. 2d 1, ¶27;
WIS. STAT. § 48.426(2).
¶6 As grounds for the TPR petition, the Department alleged continuing
need of protection or services under WIS. STAT. § 48.415(2)(a), failure to assume
parental responsibility under § 48.415(6), and abandonment under § 48.415(1)(a)2.
After a court trial, the circuit court determined that the Department had proven all
three grounds for termination. The case proceeded to a dispositional hearing.
C.T.S. did not appear at this hearing, but his counsel did appear. Applying
statutory best interest factors set forth in WIS. STAT. § 48.426, the circuit court
determined that termination was in K.S.’s best interests and issued an order
terminating C.T.S.’s parental rights. C.T.S. appeals. I reference additional facts
as needed below.
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No. 2023AP1404
DISCUSSION
¶7 As noted above, C.T.S. argues that the Department failed to prove
that there were grounds to terminate his parental rights to K.S., and that the circuit
court erroneously exercised its discretion in determining that termination was in
K.S.’s best interests. I address each argument in turn.
¶8 At the grounds phase in a TPR proceeding, the petitioner (here, the
Department) must show by clear and convincing evidence that one or more of the
twelve statutory grounds for termination exist. Steven V., 271 Wis. 2d 1, ¶¶24-25.
A fact-finder’s determination that grounds for termination exist will be sustained if
there is credible evidence to support the determination. See St. Croix Cnty.
DHHS v. Michael D., 2016 WI 35, ¶29, 368 Wis. 2d 170, 880 N.W.2d 107.
¶9 Here, as noted above, the Department alleged three grounds for
termination: continuing need of protection or services (“continuing CHIPS”),
failure to assume parental responsibility, and abandonment. The Department
needed to prove only one of these grounds to prevail at the grounds phase. As I
next explain, the Department introduced credible evidence to support the
continuing CHIPS ground for termination.
¶10 Generally, to prove the continuing CHIPS ground under WIS. STAT.
§ 48.415(2)(a), the petitioner must prove that: (1) the child has been placed
outside the home for a cumulative total of six months or longer pursuant to a court
order containing the termination of parental rights notice required by law; (2) the
child welfare agency (here, the Department) has made a reasonable effort to
provide court-ordered services; and (3) the parent has failed to meet the conditions
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No. 2023AP1404
established for the safe return of the child to the home. 2 See § 48.415(2)(a); see
also WIS JI—CHILDREN 324.
¶11 At trial, C.T.S. stipulated that the first element had been met. On
appeal, C.T.S. appears to argue that the Department did not introduce sufficient
evidence to show either that C.T.S. failed to meet the conditions for return or that
the agency made reasonable efforts to provide services. The record refutes these
arguments.
¶12 The Department introduced uncontroverted evidence that C.T.S. had
not met return conditions despite the agency’s efforts to help him meet those
conditions, including testimony regarding specific conditions as follows.
¶13 C.T.S. was required to attend a parenting class approved by his case
manager. C.T.S.’s case manager referred him to three parenting classes between
2020 and 2022, and assisted him with registration, but C.T.S. did not complete any
of these classes.
¶14 C.T.S. was required to participate in services to support his mental
health and wellbeing. Although C.T.S. was seeing a therapist at the time the
dispositional order was entered, he ceased attending therapy appointments in
February 2021 and did not follow through with referrals from his case manager to
other providers.
2
If the child has been “placed outside the home for less than 15 of the most recent 22
months,” the Department must also prove that “that there is a substantial likelihood that the parent
will not meet these conditions as of the date on which the child will have been placed outside the
home for 15 of the most recent 22 months.” WIS. STAT. § 48.415(2)(a)3. Here, this additional
element does not apply, because K.S. had been in foster placement continuously for over 30
months at the time the TPR petition was filed.
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No. 2023AP1404
¶15 C.T.S. was required to “maintain absolute sobriety from any illegal
drugs” and submit to drug screening. However, C.T.S. refused to participate in
multiple drug screening attempts. On at least one occasion, C.T.S. tested positive
for cocaine. C.S. admitted to using heroin, and admitted that he had been involved
in a car accident in May 2022 after losing consciousness due to heroin use while
driving.
¶16 C.T.S. was required to participate in medical and dental care
appointments for K.S. C.T.S. was consistently informed of those appointments
but did not attend any.
¶17 C.T.S. was required to “maintain a safe, fitting, and stable home” for
K.S. However, C.T.S. resided with partners who had a history of domestic
violence. At the time of the dispositional order, C.T.S. lived with K.S.’s mother
A.C., who, as noted above, faced criminal charges of physical abuse of K.S.’s
half-sibling. C.T.S. later moved in with a new significant other, who had a
criminal domestic violence conviction. The circuit court found that these partners
rendered C.T.S.’s home environment unsafe for K.S., and C.T.S. does not
challenge this finding on appeal.
¶18 C.T.S was required to coordinate with a domestic violence
organization to develop a safety plan for himself and K.S. C.T.S.’s case manager
referred C.T.S. to service providers who could help C.T.S. fulfill this condition,
but C.T.S. did not follow up with these providers or complete any domestic
violence programming.
¶19 C.T.S. was required to provide advance notice of any change in
contact information. C.T.S. frequently changed phone numbers without providing
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No. 2023AP1404
advance notice of the changes, leading to difficulties in communication and
coordination between C.T.S. and his case manager.
¶20 C.T.S. was required to cooperate with a family interaction plan,
which included attending scheduled visits with K.S. C.T.S.’s case manager
continually worked with C.T.S. to adjust the visitation schedule as necessary to
give C.T.S. “the most opportunity to attend.” Initially, C.T.S. was scheduled for
two in-person visits with K.S. per week. However, C.T.S. did not attend these
visits consistently, and so the schedule was changed to only one visit per week.
After March 2020, C.T.S.’s visits were switched to remote visits by Zoom due to
the COVID pandemic. When in-person visits became available again in June
2020, C.T.S. asked that the visits remain by Zoom, purportedly because he was
concerned about exposing K.S. to COVID infection.
¶21 C.T.S. did not consistently attend scheduled Zoom visits. C.T.S.
found the Zoom visits to sometimes be “difficult” because K.S. was not always
attentive. The case manager worked with K.S.’s foster parents to devise ways to
make Zoom visits meaningful, given the inherent limitation of K.S.’s young age.
K.S.’s foster parent worked to “eliminate all barriers” that would interfere with
Zoom visits, and took measures including ensuring that K.S. was fed and changed
before the visits and generally keeping K.S. in a confined area during visits.
C.T.S. eventually asked his case manager to resume in-person visits, but the case
manager required C.T.S. to first attend four or five Zoom visits in a row, which he
did not do. Ultimately, C.T.S. only attended approximately 40% of all visits
offered.
¶22 The circuit court found that C.T.S. did not meet any of the above-
listed conditions for return, and C.T.S. does not argue that any of those findings
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No. 2023AP1404
are clearly erroneous. See WIS. STAT. § 805.17(2) (a circuit court’s “[f]indings of
fact shall not be set aside unless clearly erroneous”). C.T.S.’s primary argument
appears to relate to the Department’s efforts to facilitate visits with K.S.;
specifically, C.T.S. argues that the Department failed to make reasonable efforts to
facilitate visits with K.S. “in light of the [COVID] limitations, the need for video
visits with K.S.” and the Department’s failure “to assure productive visits.” This
argument is unpersuasive. As explained above, the Department introduced
evidence that the case manager and the foster parents took measures to make
Zoom visits meaningful but that, despite these efforts, C.T.S. attended only 40%
of all visits offered. C.T.S. contends that technical difficulties interfered with his
Zoom visits. However, the case manager testified that C.T.S. never reported that
technical difficulties prevented him from attending Zoom visits, and instead told
her that he did not attend visits due to his work schedule or due to “being tired.”
C.T.S. suggests that his case manager unreasonably prevented him from resuming
in-person visits, but C.T.S. does not articulate any reason why the case manager’s
prerequisite for resuming in-person visits (attending four or five Zoom visits in a
row) was unreasonable.
¶23 C.T.S. also argues that he was “working diligently on his conditions
of return.” C.T.S.’s implication appears to be that, if given more time, he was
likely to meet the conditions. However, if a child has been placed out of the home
for “15 of the most recent 22 months” (as is the case here), the continuing CHIPS
statute does not permit consideration of whether it is likely that the parent would
eventually satisfy return conditions. See Eau Claire Cnty. DHHS v. S.E., 2021
WI 56, ¶9, 960 N.W.2d 391 (WISCONSIN STAT. § 48.415(2)(a)3. “eliminate[s]
consideration by the factfinder of the likelihood the parent would meet the
conditions for return of the child to the parent’s home if the child had already been
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No. 2023AP1404
placed outside the parent's home for at least ‘15 of the most recent 22 months.’”).
In any event, C.T.S. failed to meet numerous return conditions for over two years,
and C.T.S. does not point to any evidence showing that he was likely to meet those
conditions if given more time.
¶24 In sum, C.T.S. has not shown that the Department failed to introduce
sufficient evidence to prove the continuing CHIPS ground for termination under
WIS. STAT. § 48.415(2)(a). Because the Department need only prove one ground
for termination, I need not address whether there was sufficient evidence to prove
the Department’s two other grounds for termination.3 See Sweet v. Berge, 113
Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (this court
needs not address other issues when one is dispositive).
¶25 I turn to C.T.S.’s argument that the circuit court erroneously
exercised its discretion in determining that termination was in K.S.’s best interests.
¶26 At the dispositional phase of a TPR proceeding, the circuit court
determines whether termination of the parent’s parental rights is in the best
interests of the child, guided by the best interest factors set forth in WIS. STAT.
3
While my conclusion that the Department proved the continuing CHIPS ground is
dispositive, I note that C.T.S. does not refute the Department’s and the guardian ad litem’s
arguments that the Department also proved the abandonment ground. To prove abandonment, the
Department was required to show, among other things, that C.T.S. had failed to visit or
communicate with K.S. for three months or longer. See WIS. STAT. § 48.415(1)(a)2. On appeal,
although C.T.S. makes no argument in his appellant’s brief that the Department failed to prove
abandonment, both the Department and the guardian ad litem argue in their responsive briefs that
the Department introduced credible evidence to support this ground. C.T.S. does not respond to
these arguments in his reply brief, and I may deem C.T.S.’s failure to respond to be a concession
that the Department proved the abandonment ground. See United Coop. v. Frontier FS Coop.,
2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of a reply to respondent’s
arguments may be taken as a concession). However, as stated, I address on the merits whether
the Department proved the continuing CHIPS ground and explain why I reject C.T.S.’s arguments
that the Department did not.
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No. 2023AP1404
§ 48.426. Julie A.B., 255 Wis. 2d 170, ¶¶29, 37. These factors are: (a) the
“likelihood of the child’s adoption after termination”;4 (b) the “age and health of
the child”; (c) whether the child has “substantial relationships with the parent or
other family members,” and whether severing those relationships would harm the
child; (d) the “wishes of the child”; (e) the “duration of the separation of the parent
from the child”; and (f) whether the child can “enter into a more stable and
permanent family relationship as a result of the termination.” Sec. 48.426. The
court’s decision is discretionary, and will be affirmed so long as the court
“employs a rational thought process based on an examination of the facts and an
application of the correct standard of law.” Julie A.B., 255 Wis. 2d 170, ¶43.
¶27 As noted, C.T.S. did not appear at the dispositional hearing, but his
attorney did appear. The circuit court said that it would not find C.T.S. in default,
and proceeded with the hearing. The court received evidence and determined that
termination was in K.S.’s best interests after considering the statutory best interest
factors.
¶28 In considering the statutory factors, the circuit court found that
adoption was “very likely” if C.T.S.’s parental rights were terminated, noting that
K.S.’s foster parents wished to adopt K.S. and that the court was aware of no facts
that would prevent adoption. The court found that K.S. “only knows one mom
and dad,” his foster parents, and that this was a “good thing,” suggesting that it
was in K.S.’s best interests to terminate C.T.S.’s parental rights so that the foster
parents could adopt K.S. and ensure he stayed in a stable home. The court found
4
See also WIS. STAT. § 48.81(2) (a child may be adopted if “[t]he parental rights of both
of the child’s parents with respect to the child have been terminated”).
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No. 2023AP1404
that K.S. was in “remarkable good health” in his foster home, and that this fact
was particularly noteworthy given the complications related to K.S.’s premature
birth. The court did not find that K.S. would be harmed by the termination of
C.T.S.’s parental rights, noting that K.S. had never lived in C.T.S.’s home and that
K.S. had no relationships with C.T.S.’s extended family.5
¶29 C.T.S. argues that the circuit court erroneously exercised its
discretion because it improperly weighed the best interest factors. The weighing
of the factors is for the circuit court, not this court. See State v. Margaret H.,
2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475 (this court “cannot mandate
the relative weight to be placed” on any best interest factor). In any event, C.T.S.
does not identify any specific factor that the court weighed improperly.
¶30 Rather, C.T.S. argues that the circuit court improperly “focus[ed] on
the fact that C.T.S. did not appear at the hearing in this case and thus he forfeited
his parental rights to K.S.” This argument is not supported by the record.
Although C.T.S. did not appear, the court expressly declined to find that C.T.S.
was in default and did not at any time say that C.T.S. had “forfeited” his parental
rights. Rather, as explained above, the court addressed the statutory best interest
factors, and, based on the record, determined that termination was in K.S.’s best
interests. Accordingly, C.T.S. has not shown that the circuit court erroneously
exercised its discretion.
5
Consistent with K.S.’s young age, no evidence was introduced as to K.S.’s wishes, and
so WIS. STAT. § 48.426(3)(d), the “wishes of the child,” is inapplicable here.
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No. 2023AP1404
CONCLUSION
¶31 For all of these reasons, I affirm the circuit court’s order terminating
C.T.S.’s parental rights to K.S.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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