COURT OF
APPEALS DECISION DATED AND
RELEASED January
29, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3273
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF JOSHUA D.S.,
a
person under the age of 18:
LA
CROSSE COUNTY DEPARTMENT
OF
HUMAN SERVICES,
Plaintiff-Respondent,
v.
CANDICE
P.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for La Crosse County: DENNIS G. MONTABON, Judge. Reversed and remanded.
EICH,
C.J.[1] Candice
P., the mother of Joshua D.S., appeals from an order terminating her parental
rights. The order followed a jury
determination that grounds existed for termination under § 48.415(2), Stats.
Candice P. raises two issues on appeal: (1) whether she was deprived of
due process when she was notified of the grounds for termination of parental
rights stated in § 48.415(2) before its amendment, but her rights were
terminated on the grounds stated in a revised version of the statute; and (2)
whether she received ineffective assistance of counsel when her attorney failed
to object to the jury instructions based on the new grounds for termination.
We
conclude that Candice P. was denied due process because her parental rights
were terminated based on the amended § 48.415, Stats. We reverse and
order a new trial because the real controversy has not been tried. See § 752.35, Stats. As a result,
we need not decide her ineffective assistance of counsel claim.
BACKGROUND
Candice
P. is the mother of Joshua D.S. A
dispositional order finding Joshua in need of protection and services was
entered in April 1993. One year later,
the trial court entered an additional order extending the original disposition
to April 1995.
At
both dispositional hearings, the trial court informed Candice P. orally and in
writing of the applicable grounds for termination of parental rights under §
48.415(2)(c), Stats. The notices, restating the language
contained in § 48.415(2)(c) then in effect, warned Candice P. that her
rights could be terminated if a court found that Joshua was in need of
continuing protection and services because:
(3) ... the child has been outside the home for a
cumulative total period of one year or longer pursuant to [dispositional
orders], the parent has substantially neglected, willfully refused or been
unable to meet the conditions established for the return of the child to the
home and there is a substantial likelihood that the parent will not meet these
conditions in the future.
Subsequent
to the notices, the legislature amended § 48.415, effective May 5, 1994.[2] The new grounds permit termination where:
(c) ... the child has been outside the home for a
cumulative total period of one year or longer pursuant to [dispositional
orders] ... and ... the parent has failed to demonstrate substantial progress
toward meeting the conditions established for the return of the child to the
home and there is a substantial likelihood that the parent will not meet these
conditions within the 12-month period following the fact-finding hearing under
s. 48.424.
The
La Crosse County human services department filed a petition for termination of
Candice P.'s parental rights in April 1995.
The jury found Joshua to be a child in need of continuing protection and
services after being instructed on the grounds in the amended § 48.415(2)(c), Stats.
Candice P. did not object to the instructions and the trial court
entered an order terminating Candice P.'s parental rights.
DUE
PROCESS
Under
§ 48.356, Stats., a trial court
must warn a parent of any grounds for termination of parental rights in order
to give a parent every possible opportunity to remedy the situation. In re Amanda A., 194 Wis.2d
628, 645, 534 N.W.2d 907, 913 (Ct. App. 1995).
The state's power to terminate a parent's rights "is an awesome
one, which can only be exercised under proved facts and procedures which assure
that the power is justly exercised."
In re M.A.M., 116 Wis.2d 432, 436, 342 N.W.2d 410, 412
(1984).
In In re Jason
P.S., 195 Wis.2d 855, 862-63, 537 N.W.2d 47, 50 (Ct. App. 1995), we
held that a parent's rights were improperly terminated when the parent was
warned that her parental rights could be terminated on the grounds stated in
§ 48.415(2)(c), Stats.,
before the 1993 amendment, but her rights were terminated on the revised
grounds provided in the amended § 48.415(2)(c). We concluded that such a procedure violated the parent's right to
due process of law. Id.
at 864-65, 537 N.W.2d at 51.
We noted in Jason
that the amendment to § 48.415(2)(c), Stats.,
changed the type of conduct for which termination could proceed by easing the
burden on the state to prove the grounds for termination. We saw the change in § 48.415(2)(c) as
not merely one of degree but "a change in quality of the very nature of
the acts leading to termination." Id.
at 864, 537 N.W.2d at 50. We said:
The
notice ... under the old § 48.415, Stats.,
told [the parent he or she] faced the loss of ... parental rights only for
culpable conduct--substantial neglect or willful refusal--or for inability to
meet the conditions established for the return of the child to [the parent].
The ground for
termination under the new law requires no showing of neglect, willfulness or
inability. Under the new law [the
parent] faced loss of ... parental rights, in material part, merely because
[the parent] "failed to demonstrate substantial progress toward meeting
the conditions established for the return of the child." The reasons for the lack of substantial
progress are irrelevant.
Id. at 864, 537 N.W.2d at 50.
When
the State substantially changes the type of conduct that may lead to loss of
rights without notice to the parent, it applies a fundamentally unfair
procedure. Id. at 863,
537 N.W.2d at 50. We conclude that
Candice P., like the parent in Jason, was deprived of her
parental rights without due process of law.
Joshua's
guardian ad litem (GAL) correctly asserts that we lack the power to review
unobjected-to error in jury instructions, except to exercise our discretion
under § 752.35, Stats., to order
a new trial on the basis that the real controversy was not tried, see Vollmer
v. Luety, 156 Wis.3d 1, 17, 456 N.W.2d 797, 805 (1990), or to determine
whether the party seeking review has had effective assistance of counsel. See State v. Schumacher,
144 Wis.2d 388, 408 n.14, 424 N.W.2d 672, 680 (1988).
We
conclude that the real controversy has not been tried: whether Candice P.--as
she was warned in the notices accompanying the dispositional orders--
substantially neglected, willfully refused or was unable to meet the conditions
established for the return of the child to the home and there is a substantial
likelihood that she will not meet those conditions in the future.
The
GAL also suggests that a new trial is not necessary because the error, if any,
was harmless. The GAL asserts that, in
the face of evidence that Candice P. "failed to meet a single one of [the]
conditions or [to make] any progress towards meeting any of [the]
conditions," the jury would certainly have found that Joshua was a child in
need of continuing protection and services regardless of the standard used.
The
test for harmless error is whether no reasonable possibility exists that the
error contributed to the verdict. State
v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Because of the fundamental right involved,
and the gravity of the potential for error, we are not confident that a jury,
properly instructed, would find grounds for termination on the evidence
presented at trial.
Accordingly,
we reverse and remand for a new trial under the statute as it existed before
the amendment.[3] Because we reverse and remand for a new
trial, we need not reach Candice P.'s claim of ineffective assistance of
counsel.
By
the Court.--Order reversed and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.