COURT OF APPEALS

DECISION

DATED AND FILED

October 18, 2022

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 No. 2022AP1397 Cir. Ct. No. 2019TP235

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.W., A PERSON UNDER THE 

AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.W., JR.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County: 

MARSHALL B. MURRAY, Judge. Affirmed. 
No. 2022AP1397

2

¶1 BRASH, C.J.1 D.W., Jr. appeals the order of the trial court 

terminating his parental rights to J.W. D.W., Jr. argues that the trial court 

erroneously exercised its discretion in determining the best interests of J.W. by 

failing to consider relevant evidence, particularly with regard to D.W., Jr.’s 

request that a guardian be appointed for J.W. as an alternative to termination. 

Upon review, we reject D.W., Jr.’s arguments and affirm.

BACKGROUND

¶2 D.W., Jr. is the adjudicated father of J.W., who was born in 

December 2013. D.W., Jr. was incarcerated when J.W. was born. J.W. initially 

lived with his mother, L.T.H., and two siblings.2 

¶3 In April 2014, the Division of Milwaukee Child Protective Services 

(DMCPS) received a referral regarding J.W. He had been born with encephalitis 

and herpes, and required anti-viral medication as well as medication for seizures; 

it was reported that L.T.H. was not following up with his medical appointments or

refilling his medications. Then in October 2015, it was reported that L.T.H. had 

been arrested and was not able to pick her children up from daycare. A petition to 

find J.W. a child in need of protection or services (CHIPS) was thus filed, and he 

 

1

 This appeal is 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.

2

 L.T.H.’s other children, both of whom had different adjudicated fathers, were removed 

from her care in May 2013 after it was discovered that L.T.H. had left them home alone. L.T.H. 

was convicted of neglect for that incident. Those children were in foster care when J.W. was 

born, but were returned to L.T.H.’s custody in March 2014. 
No. 2022AP1397

3

was placed in foster care along with his brother.3 D.W., Jr. remained incarcerated 

at a facility in Boscobel at that time. 

¶4 The corresponding CHIPS order for J.W. filed in April 2016 listed a 

number of conditions his parents had to meet before they could regain custody of 

him. Those conditions included resolving their criminal cases and committing no 

further crimes; meeting all of J.W.’s medical, mental health, and special education 

needs; and demonstrating that they could provide a safe, stable home for J.W. 

Regular visitation with J.W. was also required. 

¶5 A trial reunification with L.T.H. was attempted in December 2016. 

However, in July 2017, J.W. and his siblings were again detained by DMCPS due 

to ongoing domestic violence between L.T.H. and her significant other at that 

time. 

¶6 Therefore, a Petition for the Termination of Parental Rights (TPR) 

was filed in November 2019. In the petition, the State’s alleged grounds for 

termination with regard to D.W., Jr. included the continuing need of protection or 

services for J.W., pursuant to WIS. STAT. § 48.415(2), and the failure of D.W., Jr. 

to assume parental responsibility, pursuant to § 48.415(6). 

¶7 The petition stated several bases for these grounds, beginning with 

the fact that J.W. had never lived with D.W., Jr. because he was incarcerated; the 

petition further noted that he would not be released until 2026. Furthermore, 

 

3

 The CHIPS orders for J.W.’s siblings were still in effect at that time; the other sibling

was placed with her father. 
No. 2022AP1397

4

although D.W., Jr. had supervised visits with J.W., it was observed that he was not 

available to take custody of J.W. when placement for him was being sought. 

¶8 Additionally, the TPR petition pointed out that D.W., Jr. had a 

“significant criminal history” which included “assault, several counts of taking 

and driving without owner’s consent, theft, [a] sex offender violation, disorderly 

conduct, possession with intent, and second[-]degree reckless endangering

[safety].” Based on these facts, the State asserted that D.W., Jr. was “not fit to be 

a parent” to J.W., and that termination of his parental rights was warranted. 

¶9 D.W., Jr. entered a no contest plea to the failure to assume parental 

responsibility ground in April 2021. The matter then proceeded to disposition in 

March 2022.4 

¶10 At the dispositional hearing, testimony was received from J.W.’s 

case manager. The case manager testified that J.W., who was then eight years old, 

had been in foster care since he was two-and-a-half years old. She stated that he 

had been placed with his current foster parent for over three years, and that he had 

a strong bond with her. The case manager noted that the foster parent was meeting 

all of J.W.’s special needs, which included speech issues, a seizure disorder, and 

an intellectual impairment. Additionally, the case manager discussed the strong 

bond between J.W. and his brother who had also been placed with that foster 

parent, and that the foster parent was an adoptive resource for both of them. The 

 

4

 The dispositional hearing as to L.T.H. was conducted in November 2021, and her 

parental rights to J.W. were terminated at that time; however, D.W., Jr. was not able appear in 

person for that hearing date, so a subsequent hearing date was scheduled for March 2022. The 

order of the trial court terminating L.T.H.’s parental rights was affirmed by this court in 

July 2022. See State v. L.T.H., Nos. 2022AP56 and 2022AP57, unpublished slip op. (WI App 

July 19, 2022). 
No. 2022AP1397

5

case manager stated that J.W. had expressed his desire to remain with the foster 

parent. 

¶11 The case manager further testified that J.W. had never lived with 

D.W., Jr. because he had been incarcerated for J.W.’s entire life. The case 

manager acknowledged that there had been visitation between D.W., Jr. and J.W.; 

however, the visits were infrequent—they had occurred approximately twice a 

month in person before the pandemic, and then had occurred over video. The case 

manager stated that she did not believe that J.W. had a substantial relationship 

with D.W., Jr., due to the infrequency of contact between them. The case manager

further noted that D.W., Jr.’s history of repeated incarceration, which dated back 

to when he was a juvenile, factored into the consideration of whether he would be 

able to provide a safe and stable home for J.W. upon his release. 

¶12 D.W., Jr. called as a witness a family friend, T.M., who he thinks of

as a grandmother. T.M. testified that she had talked to D.W., Jr. about the 

possibility of becoming J.W.’s guardian, but that she was first interested in 

meeting with J.W. to see if she would “be a good fit” for him, since she had not 

seen him since he was a baby. T.M. stated that she had been in contact with a 

social worker from DMCPS in January 2022 about setting up visitation, but that 

had never occurred. T.M. noted that she frequently travels to Houston, which may 

have been a factor in the failure to set up a visit. Furthermore, the case manager

testified that DMCPS had not looked into a guardianship for J.W., and that she 

was not aware of any request made by T.M. for visitation or for an investigation 

into her qualifications as a potential guardian. 

¶13 Other witnesses for D.W., Jr. included two individuals who had 

provided supervised visitation services for his visits with J.W. Both of these 
No. 2022AP1397

6

visitation supervisors testified that the visits were positive: that J.W. was excited 

to see D.W., Jr., they talked and played games, and were affectionate toward one 

another. One of those witnesses said they had a “great relationship,” and the other 

one described them as having a “father[-]son relationship.” However, the case 

manager testified that it was reported that D.W., Jr.’s responses to J.W. during 

their conversations were sometimes “immature or inappropriate.” 

¶14 Nevertheless, D.W., Jr. testified that he loved J.W. and understood 

that it was his own fault that he was incarcerated and unable to “be there for [his] 

son.” He noted that there is a possibility he could be granted early release in 2024. 

He stated that he had taken a parenting class in prison and wanted the opportunity 

to raise his son. He suggested that J.W. could continue living with his foster 

parent until D.W., Jr. was released from prison, and his counsel proposed that the 

foster parent could be appointed J.W.’s guardian during that time frame, as an 

alternative disposition to termination. 

¶15 However, the trial court observed that its decision “[was] not about 

[D.W., Jr.],” and even though the court “wish[ed] that things were different” for 

D.W., Jr., it had to consider what is in the best interests of J.W. The court then 

discussed each of the statutory factors for determining the best interests of J.W., 

and ultimately decided that it was in his best interests to terminate D.W., Jr.’s 

parental rights. This appeal follows.

DISCUSSION

¶16 On appeal, D.W., Jr. asserts that the trial court erroneously exercised 

its discretion in determining that the termination of his parental rights was in the 

best interests of J.W. “The ultimate determination of whether to terminate 

parental rights is discretionary with the [trial] court.” State v. Margaret H., 2000 
No. 2022AP1397

7

WI 42, ¶27, 234 Wis. 2d 606, 610 N.W.2d 475. We will uphold the decision if the 

trial court applied the correct standard of law to the facts of the case. See id., ¶32.

¶17 In making the determination to terminate parental rights, “the best 

interests of the child is the paramount consideration” for the trial court. Id., ¶33. 

The trial court’s decision should reference the statutory 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 Cnty. DHHS v. Julie A.B., 2002 WI 95, 

¶30, 255 Wis. 2d 170, 648 N.W.2d 402. 

¶18 The statutory factors that the trial court is required to consider are:

(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.

WIS. STAT. § 48.426(3). 

¶19 The record indicates that the trial court referenced all of these factors 

with regard to J.W. in its decision, and found that the evidence relating to each 

factor weighed in favor of the termination of D.W., Jr.’s parental rights. Indeed, 
No. 2022AP1397

8

D.W., Jr.’s argument on appeal is not that the court did not consider the statutory 

factors, but rather that it did not consider a dispositional alternative; namely, a 

guardianship by either T.M. or the foster parent.

¶20 While it is true that the trial court did not make any findings relating 

to the possibility of a guardianship, it was not required to do so. D.W., Jr. cites 

A.B. v. P.B., 151 Wis. 2d 312, 444 N.W.2d 415 (Ct. App. 1989), for the premise 

that “alternatives to termination must be explored.” See id. at 322. However, the 

issue in A.B. was the voluntary termination of parental rights, with this court 

making the point that parental rights “may not be terminated merely to advance 

the parents’ convenience and interests, either emotional or financial.” Id. We thus 

find A.B. to be inapposite here. Instead, we are directed by Julie A.B., which 

states that while the parties “‘may make alternative dispositional recommendations 

to the [trial] court,’” the trial court “shall consider” the best interest factors set 

forth in WIS. STAT. § 48.426(3). Julie A.B., 255 Wis. 2d 170, ¶29 (citation 

omitted).

¶21 Additionally, the statutes relating to minor guardianships provide 

relevant guidance. Requests for the appointment of a guardian for a minor are 

subject to the requirements of WIS. STAT. § 48.9795 or, for a child in need of 

protection or services, WIS. STAT. § 48.977, both of which set forth procedures for 

filing petitions regarding such requests. There was no guardianship petition 

pending for either T.M. or the foster parent at the time of the dispositional hearing, 

and therefore a potential guardianship for J.W. was not an issue that was before 

the trial court for consideration. 

¶22 Furthermore, there was no evidence presented regarding the viability 

of a guardianship for either T.M. or the foster parent. In fact, T.M.’s testimony 
No. 2022AP1397

9

was not that she was committed to being J.W.’s guardian, but rather that she 

wanted visitation with him to determine whether his placement with her would be 

a “good fit.” Thus, placement of J.W. with T.M., who is not a blood relative of 

D.W., Jr., would simply be another foster care placement. However, J.W. has 

been placed with his current foster parent long-term and has bonded with her. 

Furthermore, as previously noted, she is an adoptive resource for him. The 

likelihood of adoption is a required statutory factor for consideration, and 

therefore the trial court properly considered J.W.’s current placement and his 

relationship with his foster parent from the perspective of his potential adoption by 

her. See WIS. STAT. § 48.426(3)(a). 

¶23 That said, the only required factor that seems to relate to D.W., Jr.’s 

argument on this issue is the substantial relationship factor and the potential harm 

that could result from legally severing such a relationship. See WIS. STAT. 

§ 48.426(3)(c). When the trial court considered this factor, it recognized that J.W. 

loved D.W., Jr, but found that the stronger bond was with his brother who was 

placed with the same foster parent and with whom he would presumably be 

adopted. Thus, in weighing all of the evidence relating to this factor, the court 

determined that it more aptly supported termination. See Margaret H., 234 

Wis. 2d 606, ¶35. 

¶24 In sum, the trial court considered all of the required statutory best 

interest factors of WIS. STAT. § 48.426(3) as they related to the evidence in this 

case. It thus applied the correct standard of law to the facts of the case, and 

therefore did not erroneously exercise its discretion in determining that it was in 

J.W.’s best interests to terminate D.W., Jr.’s parental rights. See Margaret H., 234 

Wis. 2d 606, ¶32. Accordingly, we affirm.
No. 2022AP1397

10

By the Court.—Order affirmed. 

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

809.23(1)(b)4.