COURT OF APPEALS DECISION DATED AND RELEASED MARCH 5, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3591
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE INTEREST OF
ASHLEY W.,
A CHILD UNDER THE AGE
OF 18:
JOHN H. HEIDE,
GUARDIAN AD LITEM,
Petitioner-Respondent,
v.
FRANCIS M.,
Respondent-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown county: WILLIAM M. ATKINSON, Judge.
Affirmed.
LaROCQUE, J. Francis M. appeals a judgment and an order
that involuntarily terminated his parental rights (TPR) to his daughter, Ashley
W. (d.o.b. 2/24/92). Francis argues
that the trial court erred by admitting evidence of his past sexual misconduct,
that the evidence was insufficient for the jury to reach its factual findings,
and that the trial court improperly exercised its discretion by failing to
dismiss the petition at the dispositonal hearing. Because the trial court did not abuse its discretion when it held
that Francis' prior sexual misconduct was relevant to determine whether he had
met court imposed conditions for retaining his parental rights and because the
evidence was sufficient to support the factual findings of the jury and the TPR
by the trial court, we affirm the judgment and order.
Francis was adjudicated
the natural father of Ashley on March 3, 1993.
Ashley was placed outside her mother's home in February 1992, more than
one year before the parental determination designating Francis as her father
was made. Ashley was briefly returned
to her mother and placed again in a foster home where she has continued to
reside.
Ashley's guardian ad
litem filed a TPR petition[1]
pursuant to § 48.415(2), Stats.,[2]
alleging that Francis failed to demonstrate substantial progress toward meeting
the conditions for return of his daughter ordered in a prior CHIPS
proceeding. Francis expressed his
desire to contest the petition and requested a jury trial on the merits.
The conditions imposed
upon Francis included the following:
Abstain
from any and all criminal activities.
Francis
did not comply with this condition because he violated the terms of his
probation. Francis was on probation for
a 1993 third-degree sexual assault conviction in which he admitted to having
intercourse with his developmentally disabled girlfriend without her consent. Francis was incarcerated as a result of his
probation violation.
Comply
with family court order as to payment of support, birth, and related expenses.
Francis
acknowledges that he did not comply with this condition.
Complete
an AODA assessment and follow through with any treatment recommendations.
Francis
had the assessment but failed to complete the treatment recommendations.
Participate
in and complete a parenting program.
Francis
did not participate in a parenting program but alleges his failure to do so was
a result of his incarceration.
Participate
on a weekly basis in a Father's Group Program.
Francis
enrolled in the program, missed several sessions and was unable to complete the
program because of his incarceration.
Participate
in and successfully complete an anger management course.
Francis
acknowledges that he did not comply with this condition.
Participate
in an assessment to determine if he has treatment issues regarding sexual
assaults and follow through with any treatment recommendations.
Francis
acknowledges that he did not comply with this condition.
Demonstrate
that he is capable of financially supporting Ashley by maintaining an
appropriate apartment, having no more than one roommate, seeking employment and
demonstrating that he is eligible and receiving public funds sufficient to meet
the needs of a small child such as Ashley.
Francis
acknowledges that he did not comply with this condition.
The issues for the jury
at trial were whether Francis failed to demonstrate substantial progress toward
meeting all the conditions for the return of Ashley and whether there was a
substantial likelihood that Francis would not meet the conditions within one
year after the TPR. The parties
stipulated that the other criteria of § 48.415(2), Stats., were met. The
court denied Francis' pretrial motion in limine to prevent the jury from
hearing any testimony about his past sexual misconduct.[3] The jury found against Francis on both
issues.
After the jury verdict,
the court held a hearing to determine what disposition is in Ashley's best
interests.[4] Francis noted that the court had discretion
to postpone terminating his parental rights to give him another chance to
fulfill the conditions of the juvenile court.
The trial court refused to do so and found that it was in Ashley's best
interests to terminate Francis' parental rights. Francis appeals on grounds that the court should have excluded
evidence about his past sexual misconduct, that insufficient evidence existed
to support the jury's verdict, and that the trial court abused its discretion
by terminating his parental rights.
Evidentiary
determinations are a matter of trial court discretion. State v. Pharr, 115 Wis.2d
334, 342, 340 N.W.2d 498, 501 (1983).
This court will uphold a discretionary decision if it can find a
reasonable basis for it. State v.
Kuntz, 160 Wis.2d 722, 745-46, 467 N.W.2d 531, 540 (1991). To be upheld, a discretionary determination must
be reasonable and based upon the facts in the record and the applicable
law. Hartung v. Hartung,
102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
Section 904.02, Stats., provides that relevant evidence
is generally admissible, but that irrelevant evidence is not admissible.[5] Section 904.03, Stats., gives the trial court discretion to exclude relevant
evidence if "its probative value is substantially outweighed by the danger
of unfair prejudice ...."
Francis argues that
evidence of his prior sexual misconduct is not relevant. The trial court determined that the evidence
was relevant because it would be impossible for the members of the jury to
determine if Francis was complying with the conditions and the chance Francis
had to comply with the conditions in the future if they did not understand
Francis' history of sexual misconduct and his progress in that area.
One condition requires
that Francis abstain from any and all criminal activities. Francis' admission that he still has sexual
feelings for young children and a long history of sexual assaults provides
relevant evidence that there may be a substantial likelihood that he may not be
able to comply with this condition.
Another condition requires Francis to participate in a sexual assault
assessment program and follow through with any treatment recommendations. Knowledge of Francis' history of sexual
misconduct helps the jury understand this condition and evaluate Francis'
current compliance and chance of following through with the treatment recommendations. The trial court did not abuse its discretion
by concluding that the evidence was relevant.
Francis argues that even
if the evidence is relevant, the trial court abused its discretion by admitting
the evidence because it was unduly prejudicial. Unduly prejudicial evidence is that which threatens the
fundamental goals of accuracy and fairness by misleading the jury or
influencing the jury to decide the case on an unfair basis. State v. DeSantis, 155 Wis.2d
774, 791-92, 456 N.W.2d 600, 608 (1990).
The trial court acknowledged the prejudicial effect of the evidence, but
determined that its relevance outweighed the prejudicial effect. We conclude that the trial court did not
abuse its discretion because it considered all the necessary facts and its
decision to include the evidence was rational.
See Hartung, 102 Wis.2d at 66, 306 N.W.2d at 20.
Francis also argues that
§ 906.09, Stats., bars the
introduction of his criminal conviction and juvenile adjudications. We reject this argument because § 906.09
governs the introduction of evidence to impeach the credibility of a
witness. Francis' criminal conviction
and juvenile adjudications were introduced for the purpose of proving the
substantive issue regarding his compliance with the conditions, not to impeach
his testimony.
We conclude that
evidence of Francis' sexual misconduct was properly admitted because the trial
court did not abuse its discretion when it determined that the evidence was
relevant and not substantially outweighed by danger of unfair prejudice and
because Francis did not identify a specific rule that excludes the evidence.[6]
Next, Francis argues
that the jury did not have sufficient evidence to reasonably conclude that
Francis failed to demonstrate substantial progress toward meeting the
conditions for Ashley's return. This
court reviews questions of fact under the clearly erroneous standard. Racine v. Weisflog, 165 Wis.2d
184, 190, 477 N.W.2d 326, 329 (Ct. App. 1991); § 805.17(2), Stats.
The jury is the ultimate arbiter of credibility, and the appellate court
will view the evidence in the light most favorable to the verdict. Roach v. Keane, 73 Wis.2d 524,
536, 243 N.W.2d 508, 515 (1976).
We reject Francis'
argument because the record provides ample evidence that he did not make
substantial progress toward meeting the conditions. According to a report prepared by an employee of the Brown County
Human Services Department two months before trial, Francis failed to comply
with his parole rules and regulations, which was a violation of the condition
prohibiting him from engaging in criminal conduct. The report also indicated Francis did not complete alcohol and
drug treatment, a parenting class, a sex offender treatment program and an
anger management course. Further, the
report found that Francis failed to prove that he is financially capable of
supporting Ashley. We conclude that
sufficient evidence supports the jury's finding that Francis failed to make
substantial progress toward meeting the conditions.
Francis also notes that
his incarceration prevented him from meeting many of the conditions and that he
is no longer incarcerated. Despite
Francis' release from prison, sufficient evidence supports the jury's
conclusion that there was a substantial likelihood Francis would not meet the
conditions within one year. A
psychologist who evaluated Francis testified that, in his opinion, Francis'
personality traits would make it extremely difficult for him to substantially
comply with the conditions. The jury
could also reasonably infer that Francis would be incapable of financially
supporting Ashley because he has a poor work history and has been unable to
remain in a residence suitable to raise Ashley. Further, the jury could infer that Francis could be incarcerated
again within a year because of his past sexual misconduct and his
acknowledgment that he is still sexually attracted to minors.
Finally, Francis argues
that the trial court erred by improperly exercising its discretion to terminate
his parental rights. The trial court
held a dispositional hearing pursuant to § 48.427, Stats., after the jury determined that grounds to terminate
Francis' parental rights existed. The
primary consideration at the dispositional hearing is the best interests of the
child. Section 48.426(2), Stats.
However, the court must also find that the evidence of the parent's
unfitness is so egregious it warranted termination.[7] In re K.D.J., 163 Wis.2d 90,
103, 470 N.W.2d 914, 920 (1991).
Evidence may meet the statutory grounds for dismissal, but still not
warrant termination. Id. In that situation, the trial court has
discretion to dismiss the petition.
Section 48.424(4), Stats.
According to Francis,
the trial court improperly solely relied on the best interests of the child in
determining its disposition and failed to find that Francis' conduct was so
egregious it warranted termination. At
the disposition hearing, the court stated
At this time, the child has
no substantial relationship with her father.
In fact, [Ashley] doesn't realize that [Francis] is her father at
all. Clearly, this child needs to get
into a permanent and stable relationship.
There is no hope of that occurring with [Francis].
....
Even
a small likelihood of future placement would provide a better future than what
[Francis] could provide for that child.
Given his past history, his current condition, there is just no
likelihood of him providing a stable environment for this child.
The
comments of the court indicate it was convinced Francis' conduct was
sufficiently egregious to warrant termination.
It would be a waste of judicial resources to send the case back for a
specific declaration to that effect. See
K.D.J., 163 Wis.2d at 109, 470 N.W.2d at 922.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1] Although an employee of the Brown County Human Services Department signed the petition, the County did not appear by counsel at trial or file a brief.
[2]
Section 48.415, Stats.,
provides in part:
Grounds for termination of
parental rights shall be one of the following:
....
(2) Continuing need of protection
or services. Continuing need of protection or services may be established by a
showing of all of the following:
(a) That the child has been adjudged to be in need of protection or
services and placed, or continued in a placement, outside his or her home
pursuant to one or more court orders under s. 48.345, 48.357, 48.363 or 48.365
containing the notice required by s. 48.356 (2).
(b) That the agency responsible for the care of the child and the
family has made a diligent effort to provide the services ordered by the court.
(c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders or, if the child had not attained the age of 3 years at the time of the initial order placing the child outside of the home, that the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders; and that 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.
[3]
In addition to the 1993 conviction, Francis was charged and convicted of
sexual assault when he was a juvenile for assaulting his two younger
sisters. After several months of
treatment, he admitted that he had sexual contact with his sister again. Francis also admitted to a social worker
that he had sexual feelings about his new girlfriend's young children.
Francis first raises the issue whether his juvenile records should not have been released per § 48.78, Stats., in his reply brief. If an appellant fails to discuss an alleged error in his main brief, he cannot do so in his reply brief. In re Estate of Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 n.2 (Ct. App. 1981). However, we note that § 48.35(1)(b)2, Stats., may allow the records to be used as evidence against Francis at the TPR proceeding.
[4] At the hearing, Ashley's biological mother, Kathy W., expressed her intention to voluntarily terminate her parental rights, on the condition that Francis' parental rights were terminated. A guardian ad litem for Kathy filed a brief in support of the termination of Francis' parental rights. The record indicates that Ashley will likely be adopted by her foster parents.
[5] Section 904.01, Stats., 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."
[6] Francis first raises the issue whether § 904.04, Stats., barred the introduction of his sexual assault conviction and juvenile adjudications in his reply brief. If an appellant fails to discuss an alleged error in his main brief, he cannot do so in his reply brief. In re Estate of Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 n.2 (Ct. App. 1981).
[7] The due process clause requires this finding of egregiousness because it would be unconstitutional to break up a family "'for the sole reason that to do so was thought to be in the children's best interest.'" In re K.D.J., 163 Wis.2d 90, 114, 470 N.W.2d 914, 924 (1991) (quoting Quillon v. Walcott, 434 U.S. 246, 255 (1978)).