|
COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 28, 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. |
Nos. 95-3566
95-3567
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
No. 95-3566
In the Interest of
Crystal S., A Person
Under the Age of 18:
WAUKESHA COUNTY
DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,
Petitioner-Respondent,
v.
TERESA B.,
Respondent-Appellant.
------------------------------------------------------------------
No. 95-3567
In the Interest of
Crystal S., A Person
Under the Age of 18:
WAUKESHA COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Petitioner-Respondent,
v.
JOHN S.,
Respondent-Appellant.
APPEALS from an order of
the circuit court for Waukesha County:
KATHRYN W. FOSTER, Judge. Affirmed.
ANDERSON, P.J. Teresa
B. and John S. appeal from an order of the trial court terminating their
parental rights to their child, Crystal S.
We conclude that Teresa's and John's arguments are without merit. Accordingly, we affirm the order of the
trial court.
Crystal was born in June
1992. She was found to be in need of
protection or services (CHIPS) in January 1993. According to John's appellate brief, he was not involved at this
stage of the proceedings because he had not yet been adjudicated Crystal's
father. He was subsequently adjudicated
the child's father.
A petition for
termination of Teresa's and John's parental rights (TPR) was filed on January
12, 1995,[1]
alleging that Crystal was in continuing need of protection or services,
pursuant to § 48.415(2), Stats. The petition stated that the agency had made
a diligent effort to provide the services ordered by the court.
A jury trial was held in
June 1995. With regard to both parents,
the jury found that (1) Crystal was in need of protection and services which
resulted in court-ordered conditions for return to John and Teresa, (2) Crystal
continued in a placement outside the home for a cumulative total period of one
year or longer pursuant to court orders under the applicable statutes, (3) the
court orders placing Crystal outside of her mother's and father's home
contained the notice required by § 48.356(2), Stats.,
(4) the Waukesha County Department of Health and Human Services made a diligent
effort to provide the services required by the court, (5) Teresa and John
substantially neglected, willfully refused or had been unable to meet the
conditions established for the return of Crystal to their home, and (6) there
was a substantial likelihood that in the future, Teresa and John would not meet
the conditions established for the return of Crystal to either of their
custody.
A dispositional hearing
was held. The trial court concluded
that termination was in the best interests of the child and issued an order
terminating Teresa's and John's parental rights to Crystal. Teresa and John appeal.
Teresa argues that the
trial court erroneously exercised its discretion when it denied her motion to
sever her case from John's case for trial.
She states that the ground for severing her trial was that the jury
would be hearing evidence about John which would be unfairly prejudicial to
her. The decision whether to grant a
motion for severance is within the trial court's discretion. I.P. v. State, 157 Wis.2d 106,
121, 458 N.W.2d 823, 830 (Ct. App. 1990), aff'd, 166 Wis.2d 464, 480
N.W.2d 234 (1992).
We conclude that Teresa
was not prejudiced by the trial court's decision to deny her motion for
severance. The trial court stated:
[T]his is a situation where there are
witnesses I assume that are, based on my review of the petition or the amended
petition, that are common, shall we say, to both parents; that under all the
circumstances that a severance is not—is not feasible. The issues of the fact that the parties were
never married are issues that will—can be delved into in voir dire, but not the
basis of a motion to sever, not at this late hour and not in the interest of
judicial economy.
An
additional fact to support the trial court's decision is that separate verdict
forms for Teresa and John were submitted to the jury. Furthermore, there was testimony that the parents were living
together when Crystal was removed.
Next, Teresa argues that
the trial court erred when it decided that the TPR petition was filed before
the CHIPS dispositional order expired.
She states that the extension order entered after a hearing extended the
jurisdiction of the court to January 12, 1995.
The TPR petition was filed on January 12, 1995. She contends that the TPR petition was
required to be filed no later than January 11, 1995. Because the TPR petition was filed late according to Teresa's
time line, the court lost subject matter jurisdiction of the case.
The facts are undisputed
as to this issue and only a question of law remains. Therefore, we review the trial court's decision de novo. See Breier v. E.C., 130 Wis.2d
376, 381, 387 N.W.2d 72, 74 (1986).
We conclude that the TPR
petition was timely filed. The
extension order noted the expiration date as January 12, 1995. We agree with the County's argument that the
last day in a stated time period is included in a calculation of time. Section 990.001(4)(a), Stats., provides:
The time within which an act is to be
done or proceeding had or taken shall be computed by excluding the first day
and including the last; and when any such time is expressed in hours the whole
of Sunday and of any legal holiday, from midnight to midnight, shall be
excluded.
This
statute is instructive on how the time limit is to be measured. We conclude that the County had until
midnight on January 12, 1995, to timely file the petition.
John first argues that
his “due process rights [were] violated by the Department's decision to favor
and pursue termination of his parental rights at roughly the same time that the
Department pledged to the court that it would assist [him] in obtaining the
return of Crystal.” John, however,
failed to raise this issue in the trial court.
As a general rule, this court does not consider issues raised for the
first time on appeal. Wirth v.
Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). We will not consider this issue because
justice does not require it. See State
v. Kircher, 189 Wis.2d 392, 404, 525 N.W.2d 788, 793 (Ct. App. 1994).
John also argues that
“the agency responsible for the care of the child and the family cannot take
the inconsistent positions of favoring the termination of a parent's rights and
at the same time representing to the court that it will make the required
diligent efforts and must not be allowed to make quick and hasty decisions
regarding a parent's status.” He
contends that the trial court erred in not granting his motion for dismissal
based upon the County's failure to prove diligent efforts by the
Department. A trial court shall not
grant a motion challenging the sufficiency of the evidence as a matter of law
to support a verdict, “unless the court is satisfied that, considering all
credible evidence and reasonable inferences therefrom in the light most
favorable to the party against whom the motion is made, there is no credible
evidence to sustain a finding in favor of such party.” Section 805.14(1), Stats.
Wisconsin
J I—Civil 7040 provides that “diligent effort” requires the
department to act reasonably, using ordinary and reasonable diligence. It requires an earnest and energetic
effort. There is ample evidence to
support the finding that the Department made diligent efforts to help John
fulfill the conditions for Crystal's return.
Linda Senger, a social worker assigned to the case, testified that she
made alcohol and drug referrals to the Waukesha County Council on Alcoholism
and Other Drug Abuse and to the Department's outpatient clinic. John was terminated from services at the
Department due to noncompliance. This
occurred after the establishment of his conditions for Crystal's return. Senger also suggested that John seek assistance
through the Veterans Administration. It
was John's failure to satisfactorily complete the offered services that was the
trigger for the TPR petition. John
offers no authority that permanency planning, with an eye towards termination,
cannot be ongoing while services are being offered.
Last, John asserts that
the jury's decision was clearly erroneous based upon the facts presented
regarding a lack of diligent efforts by the Department. We will sustain a jury's verdict if there is
any credible evidence to support it. Fehring
v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598
(1984). Based on our discussion above,
we conclude that there was sufficient evidence to support the jury's verdict
that the Department made diligent efforts to help John fulfill the conditions
for Crystal's return.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.