COURT OF APPEALS

DECISION

DATED AND FILED

April 1, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2021AP98

2021AP99

Cir. Ct. Nos. 2019TP1

2019TP2

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

APPEAL NO. 2021AP98

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.J.G.,

A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,

 PETITIONER-RESPONDENT,

 V.

M. M. B.,

 RESPONDENT-APPELLANT.
Nos. 2021AP98

2021AP99

2

APPEAL NO. 2021AP99

IN RE THE TERMINATION OF PARENTAL RIGHTS TO C.K.G.,

A PERSON UNDER THE AGE OF 18:

JACKSON COUNTY DEPARTMENT OF HUMAN SERVICES,

 PETITIONER-RESPONDENT,

 V.

M. M. B.,

 RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Jackson County: 

RIAN RADTKE, Judge. Affirmed. 

¶1 FITZPATRICK, P.J.1 M.M.B. appeals orders of the Jackson 

County Circuit Court terminating her parental rights to J.J.G. and C.K.G. The 

circuit court found M.M.B. unfit following M.M.B.’s stipulation that grounds

existed for the involuntary termination of her parental rights to each child. A 

dispositional hearing was held after which the court found that termination of 

M.M.B.’s parental rights was in the children’s best interests. M.M.B. contends

that she is entitled to a new dispositional hearing because: (1) the circuit court 

erred by admitting at the dispositional hearing the testimony of a psychologist; and 

 

1

 These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-

20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. 

These appeals were consolidated on this court’s own motion in a February 26, 2021 order 

pursuant to WIS. STAT. RULE 809.10(3). 
Nos. 2021AP98

2021AP99

3

(2) her due process rights were violated because the circuit court failed to properly

conduct the dispositional hearing. I reject M.M.B.’s arguments and affirm the 

orders terminating her parental rights to J.J.G. and C.K.G. 

BACKGROUND

¶2 The following facts are undisputed. 

¶3 In February 2019, the Jackson County Department of Human 

Services filed petitions to terminate M.M.B.’s parental rights to J.J.G. and C.K.G. 

In each petition, the County alleged that grounds existed for involuntary 

termination of M.M.B.’s parental rights under WIS. STAT. § 48.415(2), based on a 

continuing need of protection or services.2

¶4 At a hearing held in November 2019, M.M.B. stipulated to the 

existence of grounds for the termination of her parental rights, but requested a 

contested hearing on the dispositional phase of the proceedings. The circuit court

accepted M.M.B.’s stipulation after finding that M.M.B.’s decision was made

knowingly, voluntarily, and intelligently. Upon the parties’ agreement, testimony 

establishing a factual basis for grounds for terminating M.M.B.’s parental rights 

was presented at a subsequent hearing. 

¶5 A hearing on disposition was held in March 2020. At the 

dispositional hearing, the County presented the testimony of Dr. Stephan Dal 

Cerro, a clinical psychologist who prepared an evaluation of M.M.B.’s 

 

2

 The parental rights of the father to these children were terminated. Those terminations 

of parental rights are not at issue in this appeal.
Nos. 2021AP98

2021AP99

4

“psychosocial functioning, including issues related to parenting and substance 

abuse” in May 2018. Dr. Dal Cerro testified telephonically due to his illness. 

¶6 M.M.B.’s trial counsel objected to Dr. Dal Cerro’s testimony on the 

following three bases: (1) M.M.B. was not provided notice that Dr. Dal Cerro 

would testify telephonically; (2) a witness list had not been provided to M.M.B.; 

and (3) Dr. Dal Cerro’s 2018 evaluation was not performed contemporaneous to 

the dispositional hearing and, therefore, his testimony concerning that evaluation

was not relevant to the issue of whether termination of M.M.B.’s parental rights 

was in the children’s best interests. The County responded that Dr. Dal Cerro’s 

testimony was relevant to some of the statutory factors the court must consider in 

determining whether termination of M.M.B.’s parental rights was in the children’s 

best interests, including whether either child had a substantial relationship with 

M.M.B., and whether either child would enter into a more stable and permanent

family relationship if M.M.B.’s parental rights were terminated. See WIS. STAT.

§ 48.426(3)(c) and (f). 

¶7 The circuit court overruled M.M.B.’s objections to Dr. Dal Cerro’s 

testimony. The court explained its reasoning as follows: 

There’s no scheduling order in this matter that would say 

there’s a requirement that witness lists and such be 

exchanged and I don’t see any other requirement under the 

law and so I’m going to deny that request. Ordinarily 

doctors do testify by telephone in proceedings and having 

the stomach flu is a valid reason for a last-minute request to 

appear by telephone. 

The circuit court did not specifically address M.M.B.’s argument that Dr. Dal 

Cerro’s testimony was not relevant. 
Nos. 2021AP98

2021AP99

5

¶8 The County also presented the testimony of other witnesses 

including Heather Wilcox, J.J.G. and C.K.G.’s social worker. M.M.B. testified in 

her own defense and presented the testimony of several other witnesses who 

testified concerning M.M.B.’s parenting, her employment, and her sobriety. 

¶9 At the conclusion of the dispositional hearing, the circuit court found 

that termination of M.M.B.’s parental rights was in the best interests of J.J.G. and 

C.K.G. In reaching that decision the court explicitly considered each of the 

statutory factors set forth in WIS. STAT. § 48.426(3). M.M.B. appeals.

DISCUSSION

¶10 M.M.B. contends that she is entitled to a new dispositional hearing 

for the following two reasons: (1) the circuit court erred in admitting Dr. Dal 

Cerro’s testimony because that testimony was not relevant;

3

and (2) the 

dispositional hearing violated M.M.B.’s due process right to a “two-phase 

termination of parental right proceeding.” I begin by setting forth governing 

principles and the standard of review. 

I. Principles Governing Termination of Parental Rights, Evidentiary 

Rulings, and Standard of Review. 

¶11 “Wisconsin has a two-part statutory procedure for the involuntary 

termination of parental rights.” Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 

 

3

 M.M.B. does not renew on appeal her arguments that Dr. Dal Cerro’s testimony was 

inadmissible because she was not provided notice that Dr. Dal Cerro would be testifying 

telephonically and she was not provided a witness list. Accordingly, I do not address whether 

Dr. Dal Cerro’s testimony was inadmissible for those reasons. See State v. Allen, 2004 WI 106, 

¶26 n.8, 274 Wis. 2d 568, 682 N.W.2d 433 (declining to address issues not raised on appeal). 
Nos. 2021AP98

2021AP99

6

Wis. 2d 1, 678 N.W.2d 856. The first phase is “the fact-finding hearing ‘to 

determine whether grounds exist for the termination of parental rights.’” 

Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 

N.W.2d 402 (quoting WIS. STAT. § 48.424(1)). During this phase, “the petitioner 

must prove by clear and convincing evidence that one or more of the statutorily 

enumerated grounds for termination of parental rights exist.” Steven V., 271 

Wis. 2d 1, ¶24.

¶12 At the conclusion of the fact-finding hearing, a jury or the circuit 

court determines “whether any grounds for the termination of parental rights have 

been proved.” WIS. STAT. § 48.424(3). “If grounds for the termination of parental 

rights are found by the court or jury, the court shall find the parent unfit.” 

Sec. 48.424(4).

¶13 “A finding of parental unfitness is a necessary prerequisite to 

termination of parental rights, but a finding of unfitness does not necessitate that 

parental rights be terminated.” Steven V., 271 Wis. 2d 1, ¶26. To determine if 

parental rights should be terminated, the proceeding moves to the second phase, a 

dispositional hearing. Julie A.B., 255 Wis. 2d 170, ¶28; see WIS. STAT. § 48.427. 

“The outcome of this hearing is not predetermined, but the focus shifts to the 

interests of the child.” Julie A.B., 255 Wis. 2d 170, ¶28; see WIS. STAT.

§ 48.426(2). After the dispositional hearing, the court may enter an order 

terminating the parental rights of the parent, or it may dismiss the petition if it 

finds that the evidence does not warrant termination. Julie A.B., 255 Wis. 2d 170, 

¶28; see § 48.427(2)-(3). In making its determination regarding disposition, the 

circuit court must consider the following statutory factors, as well as any other 

factors the circuit court determines are applicable:
Nos. 2021AP98

2021AP99

7

(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.

Sec. 48.426(3).

¶14 This court will not overturn a circuit court’s decision on disposition 

in a termination of parental rights proceeding unless the circuit court erroneously 

exercised its discretion. David S. v. Laura S., 179 Wis. 2d 114, 150, 507 N.W.2d

94 (1993). This court also reviews the circuit court’s evidentiary rulings for an 

erroneous exercise of discretion. State v. Meehan, 2001 WI App 119, ¶23, 244 

Wis. 2d 121, 630 N.W.2d 722. “The burden to demonstrate an erroneous exercise 

of discretion rests with the appellant.” Winters v. Winters, 2005 WI App 94, ¶18, 

281 Wis. 2d 798, 699 N.W.2d 299. A court properly exercises its discretion when 

it examines the relevant facts, applies a proper standard of law and, using a 

rational process, reaches a conclusion that a reasonable judge could reach. Loy v. 

Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). “Although the 

proper exercise of discretion contemplates that the circuit court explain its 

reasoning, when the court does not do so, [this court] may search the record to 
Nos. 2021AP98

2021AP99

8

determine if it supports the [circuit] court’s discretionary decision.” Randall v. 

Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737; see Hedtcke v. 

Sentry Ins. Co., 109 Wis. 2d 461, 470, 326 N.W.2d 727 (1982). 

¶15 In addition, the circuit court’s discretionary decision to admit 

evidence is subject to the harmless error rule, which is a question of law reviewed

de novo by this court. See Evelyn C.R. v. Tykila S., 2001 WI 110, ¶35, 246 

Wis. 2d 1, 629 N.W.2d 768 (applying harmless error analysis in a TPR 

proceeding); State v. Hunt, 2014 WI 102, ¶21, 360 Wis. 2d 576, 851 N.W.2d 434 

(stating whether error was harmless is a question of law reviewed de novo). An 

error is harmless if it did not affect the substantial rights of the party. Evelyn C.R., 

246 Wis. 2d 1, ¶28. “For an error to affect the substantial rights of a party, there 

must be a reasonable possibility that the error contributed to the outcome of the 

action or proceeding at issue.” Id. 

II. Dr. Dal Cerro’s Testimony.

¶16 M.M.B. argues that the circuit court’s decision to admit Dr. Dal 

Cerro’s testimony was erroneous because the court’s decision was not based on a 

rational process in that the court failed to address the relevancy of Dr. Dal Cerro’s 

testimony when the court overruled M.M.B.’s objection to that testimony. The 

circuit court, in giving its oral ruling on M.M.B.’s objection, did not state its 

reasoning about relevancy as clearly as it might have. However, a circuit court’s 

failure to adequately explain its reasoning underlying a discretionary decision does 

not require reversal of the court’s decision. Instead, I may search the record to 

determine whether the record supports the court’s discretionary decision. Randall, 

235 Wis. 2d 1, ¶7. Doing so here, I conclude that the record supports the court’s 

decision to overrule M.M.B.’s relevancy objection to Dr. Dal Cerro’s testimony. 
Nos. 2021AP98

2021AP99

9

¶17 “All relevant evidence is admissible, except as otherwise provided 

by the constitutions of the United States and the state of Wisconsin, by statute, by 

these rules, or by other rules adopted by the supreme court.” WIS. STAT. § 904.02. 

WISCONSIN STAT. § 904.01 broadly defines “relevant evidence” as “evidence 

having any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be 

without the evidence.” Pertinent to this appeal, M.M.B. did not contend in the 

circuit court that Dr. Dal Cerro’s testimony was inadmissible for any reason other 

than its purported irrelevancy. Accordingly, the issue before me is whether 

Dr. Dal Cerro’s testimony tended to make the existence of any fact of consequence 

at the dispositional hearing more or less probable. I next summarize Dr. Dal 

Cerro’s testimony. 

¶18 Dr. Dal Cerro testified to the following at the dispositional hearing. 

In May 2018, he prepared a “psychological assessment, with an additional focus 

on both parenting issues and AODA, alcohol and other drug abuse” about M.M.B. 

Dr. Dal Cerro diagnosed M.M.B. with substance abuse disorder, generalized 

anxiety disorder, and avoidance personality disorder. He addressed how M.M.B.’s 

substance abuse and avoidance personality disorder impacted her parenting. 

Dr. Dal Cerro stated that substance abuse impacts a person’s ability to parent in 

that it preoccupies the parent’s attention and affects his or her judgment. M.M.B., 

as a result of her substance abuse, “became less and less engaged in parenting and 

her judgment was affected so that her children were being exposed to extremely 

harsh and negligent conditions.” As to M.M.B.’s avoidance personality disorder, 

Dr. Dal Cerro stated:

Avoidant personality would affect [M.M.B.’s] parenting in 

that it would make her less responsive to conditions, the 

problems or challenges that she’s facing. She would absent 
Nos. 2021AP98

2021AP99

10

herself from engaging in the problems that exist and that 

pattern is highly conducive to use of substances because 

substances are kind of the ultimate escape from problems, 

the ultimate avoidance. 

¶19 On cross-examination, Dr. Dal Cerro acknowledged that he had not 

had contact with M.M.B. since before May 2018, but stated that he had reviewed 

M.M.B.’s “most recent reports from Social Services, the petition and the updates,”

which included “logs of [M.M.B.’s] recent chemical testing history.” Dr. Dal 

Cerro answered in the affirmative when he was asked whether the opinions

reflected in his 2018 evaluation “may not be relevant” if M.M.B. had “experienced

sustained recovery both as to her substance abuse disorder and her mental health 

condition,” and Dr. Dal Cerro acknowledged that he “was not updated” on 

M.M.B.’s current mental health condition or on whether she was “attending to her 

substance abuse issues.” However, when asked if he agreed that M.M.B.’s “recent 

chemical testing history is essentially clean,” Dr. Dal Cerro stated: “No, I would 

not” because “there were a number of no-shows, which is suggestive, and then 

there were a fairly large number of specimens too dilute to ensure accurate result, 

which is interpreted for me to indicate that she was trying to manipulate the 

results.” 

¶20 I agree with the County that Dr. Dal Cerro’s testimony was relevant 

to WIS. STAT. § 48.426(3)(f), which directs the court to consider whether a child 

would “be able to enter into a more stable and permanent family relationship as a 

result of the termination.” Dr. Dal Cerro’s testimony that M.M.B.’s substance 

abuse and mental health problems, to the extent she continues to suffer from those 

problems, would impact M.M.B.’s ability to respond to problems concerning the 

children goes directly to the question of whether terminating M.M.B.’s parental 

rights would place the children in a more stable family relationship, which is a 
Nos. 2021AP98

2021AP99

11

“fact that is of consequence to the determination” of the children’s best interests. 

See WIS. STAT. § 904.01. 

¶21 M.M.B. argues that Dr. Dal Cerro’s testimony cannot be relevant 

because the evaluation conducted by Dr. Dal Cerro was conducted two years 

before the dispositional hearing and was therefore “temporally irrelevant.” While 

that observation goes to the weight the circuit court might give to the opinions,

M.M.B. fails to identify any reason, under the facts of this case, that the passage of 

time rendered Dr. Dal Cerro’s testimony based mostly on an evaluation performed 

in 2018 no longer relevant. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 

N.W.2d 633 (Ct. App. 1992) (declining to address undeveloped arguments). 

Moreover, M.M.B.’s argument ignores the fact that Dr. Dal Cerro testified that, 

prior to testifying, he had reviewed M.M.B.’s “recent reports ... [and] updates.” 

¶22 M.M.B. also argues on appeal that Dr. Dal Cerro’s testimony is not 

relevant because he lacked “specialized knowledge” to provide insight as to any of 

the factors set forth in WIS. STAT. § 48.426(3). See generally WIS. STAT.

§ 907.02(1) (“If scientific, technical, or other specialized knowledge will assist the 

trier of fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or education, may 

testify thereto in the form of an opinion or otherwise ....”). Fatally for her 

argument, M.M.B. does not point to any objection from her in the circuit based on 

a lack of “specialized knowledge” of Dr. Dal Cerro, and my independent search of 

the record has revealed that M.M.B. did not. M.M.B. has thus forfeited her right 

to raise this issue on appeal. See State v. Rogers, 196 Wis. 2d 817, 826-29, 539 

N.W.2d 897 (Ct. App. 1995) (stating issues not raised before the circuit court are 

not considered on appeal). 
Nos. 2021AP98

2021AP99

12

¶23 Therefore, I reject M.M.B.’s argument that Dr. Dal Cerro’s 

testimony was not relevant to any issue at the dispositional hearing. However, 

even if M.M.B. is correct that Dr. Dal Cerro’s testimony was not relevant, I would 

conclude that admission of his testimony was harmless. See WIS. STAT.

§ 901.03(1). The circuit court did not reference Dr. Dal Cerro’s testimony in its 

explanation of why the court found that terminating M.M.B.’s parental rights was 

in the children’s best interests, and M.M.B. does not point this court to any 

evidence that Dr. Dal Cerro’s testimony influenced the court’s decision. In short, 

there is no evidence that Dr. Dal Cerro’s testimony contributed to the circuit

court’s pertinent findings and, as a result, Dr. Dal Cerro’s testimony cannot be said 

to have affected M.M.B.’s substantial rights. See Evelyn C.R., 246 Wis. 2d 1, ¶28.

III. Due Process Argument. 

¶24 M.M.B. contends that her due process rights were violated because 

the circuit court “did not conduct a two-phase termination of parental rights 

proceeding as required by statute and case law.” More particularly, M.M.B. 

asserts that the circuit court “impermissibly revisited” the issue of unfitness at the 

dispositional hearing, contrary to Julie A.B., 255 Wis. 2d 170, ¶28, when the 

circuit court permitted Dr. Dal Cerro to testify and, by doing so, violated her due 

process rights. Contrary to M.M.B.’s assertion, our supreme court did not hold in 

Julie A.B. that facts relevant to the grounds phase of the proceeding cannot be 

considered, or “revisited,” during the dispositional phase of the proceeding.

¶25 Here, the circuit court considered each of the factors identified WIS.

STAT. § 48.426(3), as required by Julie A.B., in light of the evidence presented at 

the dispositional hearing. 
Nos. 2021AP98

2021AP99

13

¶26 The first factor is the likelihood of the children’s adoption. See WIS.

STAT. § 48.426(3)(a). The circuit court found that the likelihood of the children’s 

adoption was “very high.” The court stated that uncontroverted testimony was 

given that the children’s foster parents were willing to adopt the children and had 

been approved for adoption. 

¶27 The second factor is the age and health of the child at the time of 

removal from the home and at the time of disposition. See WIS. STAT.

§ 48.426(3)(b). The circuit court found that J.J.G. was removed from M.M.B.’s 

home when he was three and that he was five at the time of the dispositional 

hearing. The court found that C.K.G. was removed from M.M.B.’s home when 

she was two and that she was four at the time of the dispositional hearing. As to 

health, the court found that the only evidence presented concerned “anger issues” 

and “some hyperactivity” suffered by J.J.G. but, other than that, the children were 

“healthy.” 

¶28 The third factor is whether the child has a substantial relationship 

with the parent and whether it would be harmful to the child to sever that 

relationship. See WIS. STAT. § 48.426(3)(c). The circuit court found that M.M.B.

has a relationship with J.J.G. and C.K.G., but that the relationship is “that of 

somebody who comes and visits and plays with them,” and the children do not 

otherwise have a relationship with M.M.B. 

¶29 The fourth factor is the wishes of the children. See WIS. STAT.

§ 48.426(3)(d). The circuit court found that the children were “too young to 

express any wishes.” 

¶30 The fifth factor is the duration of the parent’s separation from the 

child. See WIS. STAT. § 48.426(3)(e). The circuit court found that the children 
Nos. 2021AP98

2021AP99

14

had been removed from M.M.B.’s home for “roughly two-and-a-half years, maybe 

a little more.” 

¶31 The sixth factor is whether the child will be able to enter into a more 

stable and permanent family relationship as a result of the termination. See WIS.

STAT. § 48.426(3)(f). About that factor, the circuit court stated: 

Everything I’ve heard today is that [the home in which the 

children have been placed] is a stable home, that is a home 

that is safe, a safe, loving home, it’s been described as 

where the children’s needs are provided. The past 

placement with mother, [M.M.B.], had a number of issues, 

abuse and neglect, and there hasn’t been any placement

with [M.M.B.] since the out-of-home placement back in 

July of 2017. There has been visitation, but I think it’s 

clear that as things sit today that the children would enter 

into a more stable and permanent family relationship as a 

result of the termination in the [foster parents’] home; and 

the testimony is that [M.M.B.] is not able, is not ready to 

have the children yet, that it’s going to be a long process 

to--to reunify and bring the children home, and so as things 

sit today I find the children would enter into a more stable 

and permanent family relationship as a result of the 

termination. 

¶32 In addition to the six factors identified in WIS. STAT. § 48.426(3), the 

circuit court considered efforts made by M.M.B. to improve herself. The court 

stated that “in the middle of last year” M.M.B. began “making steps in the right 

direction” by “starting to take life seriously and trying to figure out how to do it 

healthy and realizing that the way [she’d] been doing it is not healthy ... [and] not 

good for [her] kids.” However, the court also found that, at the time of the 

dispositional hearing, M.M.B. was unable to show that she was “stable.” The 

court determined that, “looking at all of the factors the Court is to consider” and 

the court’s findings on those factors, termination of M.M.B.’s parental rights was 

in the children’s best interests. 
Nos. 2021AP98

2021AP99

15

¶33 M.M.B. argues that the circuit court applied the incorrect standard 

by basing its decision at the dispositional hearing on her unfitness and not 

considering the children’s best interests. To the contrary, the record reflects that 

the circuit court carefully considered each of the best interest factors set forth in 

WIS. STAT. § 48.426(3), as well as other factors the circuit court considered 

relevant, in light of the facts presented at trial. Accordingly, I conclude that 

M.M.B.’s due process argument is without merit.4

CONCLUSION

¶34 For the foregoing reasons, the orders of the circuit court are 

affirmed.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

 

4

 I have been informed by the Clerk of the Court of Appeals that M.M.B.’s counsel did 

not file a reply brief in this matter. I could accept the County’s arguments in total based on that 

lack of reply. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) 

(stating arguments asserted by a respondent and not disputed by the appellant in the reply brief 

are taken as admitted). However, as is shown above, I have considered each of the arguments 

advanced by M.M.B. in her brief-in-chief.