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COURT OF APPEALS
NOTICE
DECISION
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.
May 29, 2013
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                                     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.
                                                                                                                                                                     Cir. Ct. No.   2011TP306
Appeal No.                                                                                  2013AP413
STATE OF WISCONSIN                                                                                                                                                   IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO
JEREMIAH W., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
ROY W.,
RESPONDENT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:   CHRISTOPHER R. FOLEY, Judge.   Affirmed.
¶1                                                                                          CURLEY,  P.J.1      Roy W.    appeals  the  judgment  terminating  his
parental rights to Jeremiah W.    Roy W. argues that the trial court erroneously
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2011-12).  All
references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.




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exercised its discretion when it determined, after the State had proven the grounds
for termination, that it was in Jeremiah’s best interests that his parental rights be
terminated.   Roy W. submits that “virtually every statutory fact[or] weighs in [his]
favor” and “the only reason grounds existed to terminate [his] parental rights was
because he went to prison for sixteen months.”   A review of the evidence supports
the trial court’s determination that the State proved the grounds for termination of
Roy W.’s parental rights, and that the trial court properly exercised its discretion
when  it  determined  that  it  was  in  Jeremiah’s  best  interests  to  be  placed  for
adoption,  with  the  expectation  that  his  foster  mother  will  adopt  him.
Consequently, this court affirms.
BACKGROUND
¶2                                                                                               Jeremiah was born on May 11, 2010, with cocaine in his meconium.2
As a result, he was taken into protective custody and placed outside the home
when he was two days old.   He has remained with the same foster mother since
that time.   The foster mother is the designated adoptive parent who has already
adopted two of Jeremiah’s half-sisters.    Roy W. was adjudicated Jeremiah’s father
in June 2010.3   A CHIPS dispositional order was entered on September 20, 2010.4
Roy  W.  was  given  the  following  goals  and  corresponding  assistance  that  he
needed to achieve before Jeremiah would be returned to him:
2  Meconium is  “a  dark  greenish  mass  of  desquamated  cells,  mucus,  and  bile  that
accumulates in the bowel during fetal life and is discharged shortly after birth.”   WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1401 (1993).
3  Jeremiah W.’s mother was married to another man at the time of his birth.
4  CHIPS is an acronym for “child in need of protection or services.”
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Roy   will   have   positive   interaction   with   his   son
demonstrated  by  successful  visitations  and  displaying
nurturing behaviors, such as, showing love and patience
with  him  and  concern  for  his  well-being.     He  will
understand    and    engage    in    age[-]appropriate    and
developmentally[-]appropriate activities.
Services to target behavior change:
Parenting Class
Parenting Assistance
Roy will demonstrate that he understands how his decisions
and behaviors affect the safety and well-being of his child.
He  will  be  cooperative  with  his  parole  office  and
participate  in  all  the  requirements  of  his  parole,  refrain
from illegal activity, and ensure that his home will be free
of  any  persons  deemed  unsafe;  such  as  those  having[]
criminal, neglect or CPS history, involved in any drug or
criminal activities or AODA abuse.   Thereby understanding
when he does, his child is safe.
Services to target behavior change:
AODA Assessment
Regular [R]andom Urine Analysis
Roy provides for his child’s basic needs demonstrated by
maintaining stable housing, have working utilities, ensuring
that  the  home  has  adequate  food  to  meet  his  child’s
developmental needs, provides clothing, diapers, a crib, and
takes Jeremiah to all of his medical appointments.
Services to target behavior change:
Parenting Assistance
¶3                                                                                  Roy W.  was  also  warned  that,  pursuant  to  WIS.  STAT.                 § 48.356
(2009-10),                                                                          the  State  could  bring an action  resulting in the  termination of  his
                                                                                    parental rights and listing the grounds that could be alleged.
¶4                                                                                  In an attempt to meet the goals for obtaining custody of Jeremiah,
Roy W. obtained employment, worked at his parenting skills to the point where he
was allowed overnight visitations with Jeremiah, and took parenting classes.   In
fact, the worker assigned to the case had filed a change of placement to move
placement to Roy W.’s home.   The guardian ad litem objected to this change, but
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no hearing  was ever  held  because,  unfortunately,  during the  pendency of  the
CHIPS case, Roy was re-incarcerated for approximately sixteen months.
¶5                                                                                         On  October                                              10,   2011,  the  State  filed  a  petition  seeking  the
termination of the parental rights of Roy W. and Annette C. to Jeremiah W.5   The
petition stated that Jeremiah had been found to be a child in need of protection or
services in a dispositional order dated September 20, 2010, and that, pursuant to
WIS.  STAT.  § 48.415(2),  he  continued  to  be  a  child  in  need  of  protection  or
services despite the reasonable efforts of the Bureau of Child Welfare to provide
appropriate services to Roy W.
¶6                                                                                         With regard to this first ground, the petition stated:
[Roy W.] has violated the terms of his probation, leading to
his being kept in custody and therefore unable to parent the
child on a full-time basis.   This demonstrates that [Roy W.]
does not understand how his decisions and behavior affect
the safety and well-being of the child.
….
[Roy W.] does not have safe, stable, suitable housing for
himself and his child, as he is in custody and will remain so
until approximately December 2011.
[Roy W.] failed to complete a fatherhood parenting class.
[Roy W.] has interfered with the placement of the child and
failed to cooperate effectively with others needed to help
care for the child.   He has yelled at the foster parent and
made threats concerning visitation with the child’s siblings.
[Roy W.]  has  in  no  manner  demonstrated  the  ability  to
meet the daily needs of the child on a consistent basis.
5  Annette C. is not a party to this appeal.
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¶7                                                                                             Another ground for termination alleged that Roy W. had failed to
assume parental responsibility as defined WIS. STAT.  § 48.415(6).   The petition
contained the following:
Roy [W.] has a history of criminal behavior that has led to
his being in custody and therefore unable to parent the child
on a full-time basis.                                                                          [Roy W.] fails to demonstrate that he
understands  the  Bureau’s  safety  concerns  related  to  his
history of incarcerations.                                                                     [Roy W.] continues to engage in
behavior  that  leads  to  his  involvement  with  authorities,
including causing a disturbance and threatening [the child’s
mother] at the District Attorney’s Office on May 17, 2010,
shortly after the birth of Jeremiah [W].
….
The  child,  Jeremiah                                                                          [W.],  also  has  spent  a  substantial
portion of his life in out-of-home care.
¶8                                                                                             The State filed an amended petition for termination of Roy W.’s
parental rights on  May  7,  2012,  which added  the  ground of  abandonment as
defined  in  WIS.  STAT.  § 48.415(1)(a).    With  regard  to  that  ground,  the  State
alleged that:                                                                                  “A dispositional order placing Jeremiah [W.] outside of a parental
home was entered on September 20, 2010[,] and [Roy W.] has had no contact with
him since on or about January 1, 2011.   Further, your Petitioner alleges that there
is no good reason for the abandonment.”
¶9                                                                                             After the petition was filed, Roy W. waived his right to a jury trial
and a bench trial was held.    Immediately after the trial, the trial court found
Roy W. unfit.   However, the trial court ordered a bonding assessment.   Several
months  later,  the  trial  court  released  a  letter  decision  finding  that  it  was  in
Jeremiah’s  best  interest  to  terminate  the  parental  rights  of  his  parents.    This
appeal follows.
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ANALYSIS
A.  Standard of Review.
¶10    There are two phases in an action to terminate parental rights.   First,
the  court  determines  whether  grounds  exist  to  terminate  the  parent’s  rights.
Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶10 n.10, 293 Wis. 2d 530, 716
N.W.2d 845.   In this phase, “‘the parent’s rights are paramount.’”   Id. (citation
omitted).   If the court finds grounds for termination, the parent is determined to be
unfit.   Id.   The court then proceeds to the dispositional phase where it determines
whether it is in the child’s best interest to terminate parental rights.   Id.
¶11    Whether  circumstances  warrant  termination  of  parental  rights  is
within the circuit court’s discretion.   Brandon S.S. v. Laura S., 179 Wis. 2d 114,
150, 50 7 N.W.2d 94 (1993); Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551
N.W.2d 855 (Ct. App. 1996).   In a termination of parental rights case, this court
applies the deferential standard of review to determine whether the trial court
erroneously exercised its discretion.   See Rock Cnty. DSS v. K.K., 162 Wis. 2d
431, 441, 469 N.W.2d 881 (Ct. App. 1991).   “A determination of the best interests
of the child in a termination proceeding depends on the first-hand observation and
experience with the persons involved and therefore is committed to the sound
discretion of the circuit court.”   David S. v. Laura S., 179 Wis. 2d 114, 150, 507
N.W.2d 4 (1993) (citations omitted).   Therefore, “[a] circuit court’s determination
will  not  be  upset  unless  the  decision  represents  an  erroneous  exercise  of
discretion.”   Id.   Furthermore, a trial court’s finding of fact will not be set aside
unless  against  the  great  weight  and  clear  preponderance  of  the  evidence.
Onalaska Elec. Heating, Inc. v. Schaller, 94 Wis. 2d 493, 501, 288 N.W.2d 829
(1980).
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B.  There was sufficient evidence to establish the three grounds for termination.
¶12    At trial, various witnesses testified, including Roy W., who testified
that he no longer had a relationship with Jeremiah’s mother and did not know she
was pregnant until six or seven months into her pregnancy.   He also said he did
not know that the mother was a drug user.   He did visit with Jeremiah from the
time of his birth until he was incarcerated on December  20,  2010, a period of
approximately six months.  He was not released from jail until February 21, 2012.
¶13    Roy W.  claimed  to  have  written  several  letters  to  the  court
concerning Jeremiah while incarcerated and to have received a response from the
worker assigned to the case.   He admitted, however, that he sent no letters or gifts
to Jeremiah while he was incarcerated.   He explained that he did not do so because
he and the foster mother had a rocky relationship due to her saying some things
about him that were not true, such as claiming that he came for unannounced visits
and used profanity in front of her children.   He also admitted getting a disorderly
conduct  ticket  when  he  and  Jeremiah’s  mother  had  a  loud  discussion  at  the
Children’s Court Center while attending a proceeding there involving Jeremiah.
He testified that he has never lived with Jeremiah and did not, at present, have a
substantial parental relationship with him.   With regard to visits, Roy W. related
that he had overnight visits with Jeremiah before he was taken into custody in
December 2010, and once he was released in February 2012, he resumed visiting
Jeremiah.   Besides his conviction for armed robbery, Roy W. admitted that in the
past he has smoked marijuana and sold cocaine.
¶14    The State also called the foster mother to testify.   She testified that
Roy W. was very hostile to her and yelled at her to the point where she did not
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want him coming to her house.   She also said he used profanity many times when
he was at her home.
¶15    The family case manager also testified.   She explained that originally
Roy W. was not given custody of Jeremiah because time was needed to assess
Roy W.’s parenting skills, and there were concerns about his being physically
present to care for Jeremiah because of his history of incarceration.   As a result,
Roy W. was scheduled for various services, including parenting classes.   She said
that Roy W. never completed the parenting classes.    When asked whether she
believed Roy W. had the ability and desire to appropriately parent Jeremiah, she
said, “I believe he has the desire but not the ability.”   She further explained that,
“he can express that he wants to parent his child and he can verbalize it, but his
actions prove differently.”
¶16    The family case manager also explained that it is possible to keep in
touch with children while incarcerated, but Roy W. had no contact with Jeremiah
while he was incarcerated.   She confirmed that Roy W. has never sent any cards or
gifts to Jeremiah or called her home inquiring about Jeremiah while he was in
custody.
¶17    The case manager also stated she did not receive regular or weekly
phone  calls  from  Carla  Sloan,  Roy W.’s  fiancée,  concerning  Jeremiah  while
Roy W. was incarcerated.   She was of the belief that Roy W. had not completed
any of the conditions set forth in the CHIPS order.   She also expressed the opinion
that Roy W. might be able to meet several of the conditions in the next nine
months, but not the condition that requires him to refrain from illegal activity.
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¶18    Carla  Sloan  testified  on  Roy W’s  behalf.    She  claimed  that  she
routinely  called  the  worker  and  inquired  about  Jeremiah  when  Roy W.  was
incarcerated.
¶19    The trial court found, with respect to the first ground, that Jeremiah
continued to be a child in continuing need of protection or services:
I  think  the  critical  issues  are  Element 4  in  the
Continuing Need of Protection and Services claim.   And in
particular  this  issue  of  likelihood  that  he  is  going  to
successfully  re-direct  his  life  from  a  rather  protracted
period of involvement in serious [c]riminal behavior.
As to the other elements I don’t see a lot of issues
here.   Clearly he has not met the conditions of safe return
as of the date of filing.   Quite frankly, as of now clearly this
child has been out of the home under a warnings compliant
order [for] more than the requisite period.
¶20    The  trial  court  also  made  findings  concerning  the  ground             titled
“failure to assume parental responsibility”:
As to the Failure to Assume Parental Responsibility,
it  is  a  given  that  he  has  not  accepted  and  exercised
significant responsibility for daily supervision, education,
protection and care of this child for any appreciative period
of time during the entirety of the child’s life because of
decisions he has made with regard to - with respect to his
behavior.
No  incarcerated  parent  can  directly  meet  that
standard.
….
[W]hat  efforts  he  made  to  meet  his  responsibilities  and
provide for the daily supervision, education and protection
and care of his child indirectly through relatives was not
adequate  because  one  relative  wasn’t  fit  and  the  other
relative wasn’t offered until way too late in [the] process.
So   he   has   not   accepted   and   exercised   significant
responsibility   for   the   daily   supervision,   education,
protection  and  care  for  any  appreciable  period  of  time
either directly or indirectly.
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….
And then the [a]bandonment claim, you know, I - he didn’t
visit and he didn’t communicate.   And the issue is whether
he has established good cause.   And it [is] important to note
that the burden shifts to him to establish good cause.
….
There  is  not  good  cause.    He  has  not  established  good
cause.
….
[W]e’re talking about a period of time from January 1st to
[] April 2011, to April of 2012, and he never sends a card,
never sends a gift.
….
[N]ot being able to find time to make a card or get a card
through  [the foster mother] or get a Teddy Bear through
[the foster mother] and get it to [the case worker] so it goes
to this child, that ain’t good cause.   That is not good cause
for not communicating with this child.
¶21                                                                                    Finally, in addressing the last ground, the trial court found that in
resolving the conflict in testimony as to how many letters were sent to the court or
the case manager, the trial court said:
You  got  some  credibility  issues  there.     He  says  he
communicated four times.   It’s his burden.   He didn’t meet
his burden.   There ain’t four letters in here.
I’ve  reviewed  every  entry.    And  I  have  put  my
fingers on every piece of paper in the CHIPS docket.   There
is one letter to the Court.
¶22    The trial court also resolved the claim made by Carla Sloan that she
repeatedly called  the  case  manager  asking  about Jeremiah  when  Roy W.  was
incarcerated.   The trial court said:
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… I don’t find much credence in those assertions that there
was  constant  communication  attempts  being  made  to
communicate   about   the   child   through   her   as   an
intermediary….
….
The Failure to Assume I - he has not accepted and
exercised  significant  responsibility  for  this  child’s  care,
daily care.
….
He doesn’t have a substantial parental relationship
with this child because of decisions that he has made.
¶23    Ultimately, the trial court determined that the State proved the three
grounds  and  found  Roy W.  unfit.    The  trial  court  then  ordered  a  bonding
assessment.   As noted, the trial court issued a written decision in which he found
that the best interests of Jeremiah were met by terminating his father’s parental
rights and making Jeremiah available for adoption.   In so deciding, the trial court
wrote:
Jeremiah  became  the  responsibility  of  the  child
welfare system essentially at the time of his birth.   At that
time, a presumption arose that his parents, with the diligent
assistance of child welfare authorities, had to demonstrate
that the safety issues which required our intervention had
been resolved and demonstrate a capacity to safely parent
within fifteen months (roughly August, 2011).   Failing that,
the law presumes that some alternative form of permanence
is  in  the  best  interests  of  Jeremiah.    Wisconsin  Statute
sec. 48.417.   Jeremiah has been in out of home care as of
this time for all of his life and nearly double the window of
opportunity  the  law  accorded  to  his  parents  to  resolve
parenting safety issues.
….
[Jeremiah] has a relationship with his father (and his wife)
that  Jeremiah  recognizes  and  values.     Due  to  factors
primarily the  responsibility of                                                       [Roy W.]  the  relationship
has been far too intermittent and, as noted, is not a or the
primary relationship in his life.   While [Roy W.] sincerely
believes that, given time, his recent diligent efforts to foster
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that  relationship  would  result  in  the  blossoming  of  a
primary  parent  relationship                                                              (and  step-parent  and  half-
sibling relationship), this argument only takes us full circle
to the concerns addressed in the first two paragraphs.   His
time to nurture and bring to fruition that relationship was in
the fall of 2010 when BMCW filed a notice of change of
placement.    Instead,                                                                     [Roy W.]  got  himself  arrested  and
incarcerated rendering him wholly unavailable to his son.
¶24    This court concludes that the trial court did not erroneously exercise
its discretion in finding Roy W. unfit and in terminating Roy W.’s parental rights.
¶25    As can be seen in the trial court’s decision, the fact that Roy W. was
incarcerated did play a role in the finding of his unfitness and the termination of
his  parental  rights;  however,  this  was  not  the  only  factor  which  led  to  the
termination of his parental rights.   Unlike the circumstances found in Jodie W.,
306  Wis. 2d  128,  ¶50,  where  our  supreme  court  concluded  “that  a  parent’s
incarceration is not itself a sufficient basis to terminate parental rights,” here other
factors contributed to the outcome.
¶26    With  respect to the  grounds for  termination,  while  Roy W.  does
contest the trial court’s decision to terminate his parental rights, it appears that he
concedes that grounds  existed  to find him  unfit when he  writes  in his  brief:
“by the time Roy was released, grounds existed to terminate his parental rights.”
In any event, this court is satisfied that all three grounds for termination were
supported by ample evidence.
¶27    WISCONSIN STAT. § 48.426(3) sets out the factors that a judge must
consider in determining whether termination of parental rights is in the child’s best
interest:
In  considering  the  best  interests  of  the  child  under  this
section the court shall consider but not be limited to the
following:
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(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.
(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.
¶28    Looking at the statutory factors, it is quite likely that Jeremiah will
be adopted by his foster mother, into the only home he has ever known.   While
Roy W.  insists  that  Jeremiah  is  still  quite  young,  and  if  returned  to  his  care
Jeremiah may not remember that his father was absent for sixteen months, he
ignores the other factors that weigh in favor of termination.
¶29    Roy W.  argues  that  a  “strong  bond”  exists  between  himself  and
Jeremiah.   The bonding assessment does not support that statement.   With regard
to Jeremiah’s bond with his foster mother, the author of the assessment wrote:
Observations  of  Jeremiah’s  interactions  with  [his
foster mother] overwhelmingly suggest a secure attachment
relationship  between  them,  with                                                            [the  foster  mother]
occupying  the  role  of  Jeremiah’s  Primary  Attachment
Figure (PAF).   In this assessment session, Jeremiah utilized
[his foster mother] as a “safe base” from which he explored
the room, played with his sisters, and played with toys.
Physical   affection   between                                                                [his   foster   mother]   and
Jeremiah was both frequent and spontaneous, and Jeremiah
periodically  returned  to  her  lap  for  a  few  minutes,  or
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stopped  to                                                                               “reconnect”  with  her  through  eye  contact,
smiles, and physical contact between activities.
On  the  other  hand,  the  author,  in  describing  the  bond  between  Roy W.  and
Jeremiah, observed that:                                                                  “While an ‘attachment’ relationship is not overly evident
between [Roy W.] and Jeremiah at present, observations of their play suggest the
potential for such a relationship to develop between them over time.”                     (Emphasis
added.)
¶30    Given  the  degree  of  bonding  between  Jeremiah  and  his  foster
mother, it is hard to imagine that removing him from her care would not have
deleterious effects on Jeremiah.   According to the bonding assessment, Jeremiah is
also quite close to his sisters, who would also be missed by Jeremiah.
¶31    Addressing factor five—duration of the separation of the parent from
the child—although sixteen months is not an extremely long time, it must be
remembered that Roy W. admitted to not calling, sending a card or gift, and the
trial court found that no family member inquired about Jeremiah during Roy W.’s
most recent incarceration.   Indeed, his failure to communicate with Jeremiah while
incarcerated constituted abandonment.    Although there were some half-hearted
attempts  by  Roy W.’s  fiancée  to  establish  that  she  called  and  inquired  about
Jeremiah when Roy W. was incarcerated, the trial court did not find that testimony
believable.
¶32    Finally,  there  can  be  little  doubt  that  with  the  foster  mother’s
adoption of Jeremiah, Jeremiah will remain in a more stable and permanent family
relationship as a result of the termination.   Roy W. admitted to having a criminal
history starting at the age of fifteen.   He has never lived with Jeremiah or taken
any responsibility for him.   He has paid no support or done any of the myriad
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duties attendant to fatherhood.   He had been living with his fiancée’s father in a
small  apartment  that  does  not  have  room  for  a  young  child.    By looking  at
Roy W.’s past conduct, the future does not look promising.
¶33    In contrast, the foster mother has cared for Jeremiah since his birth.
She lives with her other children in what appears to be an extremely stable home.
Consequently, the trial court properly determined that Jeremiah’s best interests
were  met  by  terminating  Roy W.’s  parental  rights.    Accordingly,  this  court
affirms.
By the Court.—Judgment affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)4.
15

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