|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 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. 95-3582
95-3583
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
95-3582
IN THE
INTEREST OF KETURAH P.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY,
Petitioner-Respondent,
v.
MARK
P.,
Respondent-Appellant,
KATHY
P.,
Respondent.
--------------------------------------------------------------------------------------------------------
95-3583
IN THE
INTEREST OF KIA P.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY,
Petitioner-Respondent,
v.
MARK
P.,
Respondent-Appellant,
KATHY
P.,
Respondent.
APPEALS
from orders of the circuit court for La Crosse County: RAMONA
A. GONZALEZ, Judge. Affirmed.
DYKMAN,
J. These are single-judge appeals
decided pursuant to § 752.31(2)(e), Stats.[1] Mark P. appeals from orders terminating his
parental rights to his minor daughters, Keturah and Kia. The decision to terminate was made after a
trial court found that grounds existed for termination based upon child abuse
under § 48.415(5)(a), Stats.[2] Mark raises the following issues on
appeal: (1) whether sexually
abusing several children on one occasion constitutes a pattern of abusive
behavior; and (2) whether his due process rights were violated when the
petitions to terminate his parental rights were based upon the same evidence
supporting the original petitions which alleged that the children were in need
of protection and services (CHIPS). We
conclude that: (1) several
different acts of sexual abuse directed against four children constitutes a
pattern of abusive behavior; and (2) Mark's due process rights were not
violated because a county may terminate parental rights at any time when the
evidence supports a finding that grounds exist for termination based upon child
abuse. Accordingly, we affirm.
BACKGROUND
In
April 1992, La Crosse County filed two CHIPS petitions alleging that Keturah
and Kia had been sexually abused by their father, Mark P. In July 1992, Mark was convicted of one
count of sexual assault of a child, contrary to § 948.02(2), Stats., and one count of sexual
assault, contrary to § 940.225(3), Stats.,
after he pleaded guilty to sexually abusing his two step-sons who were living
with Keturah and Kia. That same month,
the trial court ordered the girls placed into protective custody. The court extended these orders in July 1993
and again in July 1994.
In
July 1995, La Crosse County filed two petitions for the termination of Mark's
parental rights to Keturah and Kia. The
petitions alleged that the girls were in continuing need of protection or
services and that Mark had sexually abused them. The petitions also stated that Mark had admitted to abusing his
two step-sons and Keturah and Kia.
Much
of the testimony at the fact-finding hearing centered on whether Mark sexually
abused the children and when and how often this occurred. Mary Bilskemper, a supervisor at La Crosse
County Human Services who conducted a sexual abuse investigation, testified
that Keturah and her two half-brothers alleged that Mark abused all four
children.
Michael
Weissenberger, an investigator for the La Crosse County Sheriff's
Department, testified that Mark admitted that he sexually abused his two
step-sons. In particular, Weissenberger
testified that Mark admitted that he touched the boys' penises and that he made
them touch his penis and put their mouths on or near his penis. Mark's step-sons also indicated to
Weissenberger that Mark had sexual contact with Keturah.
Gene
Kolaczkowski, a clinical therapist at Lutheran Hospital, testified that during
play therapy, Kia indicated that Mark had sexual contact with her. He also testified that Mark's step-sons
indicated through play therapy that Mark sexually abused Kia. Kolaczkowski concluded from his observations
of the children that Kia was sexually abused by Mark. He also testified that one step-son indicated that Mark sexually
abused the girls on different days than the boys.
Mark
stipulated that he sexually touched Keturah and his two step-sons and he
acknowledged that he pleaded guilty to sexually assaulting the two boys. But he claimed that he abused the three
children on one day during a fifteen to twenty minute period. He denied that he ever sexually abused Kia
and suggested that she could have been sexually abused by another person living
in the home.
Based
upon this evidence, the trial court found that there was overwhelming clear and
convincing evidence that Mark abused all four children and that Mark exhibited
a pattern of abusive behavior with respect to all four children. The court rejected Mark's argument that if
the events to which he admitted happened on "one occasion" that it
was not a pattern of abuse. It reasoned
that had Mark committed one act to one child on one day, that would not be a
pattern of abusive behavior. But, in
this case, the court found that Mark had abused four children, denied the
abuse, minimized it, and blamed the children's mother for his actions. The court concluded that such behavior
constituted a pattern of abusive behavior and that grounds for termination of his
parental rights existed.
At
a dispositional hearing, the trial court concluded that because it found
grounds for termination based upon child abuse, it found that Mark was an unfit
parent. It also found that termination
was in the girls' best interests and ordered that Mark's parental rights be
terminated. In so doing, the court
commented that Mark's relationship with the children was not a safe one because
even if the court accepted Mark's assertion that he abused the children on one
day only,[3]
that was enough for it to find that he was a danger to the children and to
sever his relationship with them. Mark
appeals.
PATTERN OF
ABUSE
To
determine whether Mark's actions constitute a pattern of abusive behavior, we
must construe § 48.415(5), Stats.,
and apply it to facts. Construction of
a statute and its application to a particular set of facts are questions of law
which we decide independently, without deference to the trial court's
determination. Minuteman, Inc. v.
Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773, 778 (1989). Our primary purpose when interpreting a
statute is to give effect to the legislature's intent. Riverwood Park, Inc. v. Central
Ready-Mixed Concrete, Inc., 195 Wis.2d 821, 827, 536 N.W.2d 722, 724
(Ct. App. 1995). We first look at the
language of the statute and if that language is clear and unambiguous, we
construe the language in accordance with its ordinary meaning. Id. at 828, 536 N.W.2d at 724.
Mark
argues that the evidence demonstrates that he sexually abused the children on
one occasion and that one occasion cannot constitute a pattern of abusive
behavior for the purpose of determining whether grounds exist for terminating
his parental rights under § 48.415(5), Stats. That statute provides that child abuse may
be established by a showing that the parent has exhibited a pattern of abusive
behavior which is a substantial threat to the health of the child who is the
subject of the petition. He argues that
the plain meaning of the word "pattern" requires that the abusive
behavior occurs on more than one occasion and that it involves more than one
act.
We
agree with Mark that a pattern of abusive behavior would not permit termination
if the abusive behavior is one isolated incident directed at one child. The plain meaning of the word
"pattern" refers to an action which occurs more than once. Thus, to satisfy the "pattern"
requirement of this statute, there must be at least two acts of abusive
behavior. But, notwithstanding Mark's
assertions to the contrary, the abuse in this case involved more than one
act. As the trial court noted and Mark
admitted, he abused three different children on one day at least. For the purpose of § 48.415(5), Stats., we conclude that such behavior,
i.e., three acts of abuse directed at three children, constitutes a
pattern of abusive behavior. That the
abusive acts might have occurred on the same day and even within the same hour
does not condense them into one act.
Moreover, the court heard evidence, which it found credible, that Mark
abused the boys on a day different from when he abused the girls. Such behavior demonstrates a pattern of
abusive behavior and therefore, satisfies the requirements of § 48.415(5).
DUE PROCESS
Mark
also argues that his due process rights were violated because the facts
supporting the petitions for terminating his parental rights were the same as
those which supported the CHIPS petitions.
He contends that because the County could have decided to terminate as
early as 1992 but instead decided to initiate CHIPS proceedings, the County may
not now petition to terminate his parental rights without additional facts to
support the termination petitions. He
asserts that to permit the County to file termination petitions with no new
allegations other than those which were alleged in the original CHIPS petitions
is fundamentally unfair. Mark argues
that he has a right to go through a CHIPS procedure and that the procedural
history of this case nullifies his CHIPS proceedings. We disagree.
When
the County obtained protective orders for the girls finding them in need of
protection and services in 1992, 1993 and 1994, it had enough evidence then to
proceed on termination petitions based upon child abuse. That the County chose to wait before it
commenced termination proceedings is within its discretion and is not
fundamentally unfair. While ch. 48, Stats., establishes procedures with
which the County must comply before it places a child under supervision, it
does not prevent the County from commencing termination proceedings when the
evidence is sufficient to do so. Cf.
State v. Annala, 168 Wis.2d 453, 472, 484 N.W.2d 138, 146 (1992)
(prosecutor afforded great discretion whether to initiate prosecution in a
particular case). While the County is
bound by a dispositional order, the existence of one does not preclude the
commencement of a termination proceeding.
Whatever reasons the County may have had for not initially proceeding
with termination are irrelevant when the evidence supports a statutory ground
upon which termination may proceed.
Accordingly, we affirm.
By
the Court.—Orders affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.
[1] These appeals have been expedited. Rule
809.107(6)(e), Stats. We consolidated these appeals by order dated
January 5, 1996.
[2] Section
48.415(5)(a), Stats., provides:
Child abuse may be
established by a showing that the parent has exhibited a pattern of abusive
behavior which is a substantial threat to the health of the child who is the
subject of the petition and a showing of either of the following:
(a) That the parent has
caused death or injury to a child or children resulting in a felony conviction.