COURT OF APPEALS DECISION DATED AND RELEASED May 3, 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. 96-0184
96-0185
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
No. 96-0184
In the Interest of
Rebecca B.,
A Child Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
DORIS B.,
Respondent-Appellant.
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - -
No. 96-0185
In the Interest of Todd B., Jr.,
A Child Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
DORIS B.,
Respondent-Appellant.
APPEALS from orders of
the circuit court for Manitowoc County:
ALLAN J. DEEHR, Judge. Reversed.
SNYDER, J. Doris
B. appeals from orders terminating her parental rights to two children.[1] Doris claims that she did not receive the
proper warnings under §§ 48.356 and 48.415, Stats. She also contends that the trial court
misused its discretion in admitting certain evidence, that the evidence did not
support the jury verdicts and that her trial counsel was ineffective.[2]
Because we conclude that
both the warning given to Doris in the extension orders and the verdict forms
patterned after that warning were an incorrect statement of the law, we
reverse. We affirm the trial court's
evidentiary rulings, but because of the reversal do not reach Doris' claims
regarding the sufficiency of the evidence or ineffective assistance of
counsel.
The underlying action
first commenced with a court order dated November 1, 1993, in which Todd B.,
Jr. (then two and one-half years old) and Rebecca B. (then fourteen months old)
were found to be children in need of protection or services (CHIPS). At that time Doris was properly given both
an oral and a written warning that the possible grounds for termination which
would apply were a continuing need for protection or services. This comported with the requirements of §
48.415(2), Stats., 1991-92, then
in effect.
At a hearing on October
7, 1994, the CHIPS orders were extended and the same written warning was given.[3] However, prior to that hearing, on May 5,
1994, an amendment to § 48.415, Stats.,
went into effect. As the trial court
noted, the warning that Doris was given in the extension orders was not the
applicable standard at that time.
Petitions for the
termination of Doris' parental rights were filed on March 29, 1995. A jury trial was conducted in October 1995;
the jury verdict forms recited the elements that matched the warning Doris had
been given, but this did not reflect the current statutory mandates. Based on the standard provided by the trial
court, the jury concluded that Todd and Rebecca were in continuing need of
protection or services. At a
dispositional hearing in November 1995, the court concluded that it was in the
best interests of the children to terminate Doris' parental rights. Doris now appeals.
Doris first claims that
she did not receive the proper warning at the time the extension orders were
entered, and because of this, her parental rights should not have been
terminated. We agree.
This issue concerns the
application of a statute to a set of undisputed facts. Construction of a statute presents a
question of law, and this court owes no deference to the trial court's
determination. State v. Grayson,
165 Wis.2d 557, 563, 478 N.W.2d 390, 393 (Ct. App. 1991), aff'd, 172
Wis.2d 156, 493 N.W.2d 23 (1992). The
construction of the juvenile code and its application to the facts are
questions of law. See Green
County Dep't of Human Servs. v. H.N., 162 Wis.2d 635, 645, 469 N.W.2d
845, 848 (1991).
A continuing need for
protection or services can be a basis for the involuntary termination of
parental rights only if the statutory warning required by § 48.356(2), Stats., is given each time an order
places a child outside of the family home pursuant to, inter alia, § 48.365, Stats. (an extension order). D.F.R. v. Juneau County, Dep't of
Social Servs., 147 Wis.2d 486, 498-99, 433 N.W.2d 609, 613‑14
(Ct. App. 1988). The warning
requirement is imposed because of the legislature's concern for the due process
rights of parents. Id. at
499, 433 N.W.2d at 614. Because the
statute is mandatory, this court cannot substitute alternative ways to satisfy
the statute's notice requirements. Id.
At the time of the
original CHIPS order, Doris was given the information mandated by § 48.356, Stats., 1991-92. This section requires that “any written
order which places a child outside the home ... shall notify the parent or
parents of [any grounds for termination of parental rights under § 48.415,
Stats., which may be applicable].” See id.
At the time of the
initial order, Doris was warned that the possible grounds for termination of
her parental rights which would apply were a “continuing need for protection
and services under s. 48.415(2) Wis. Stats.”
Section 48.415(2), Stats.,
1991‑92, then states that in order to show that a child is in continuing
need of protection or services, the state must prove, inter alia:
[T]he
parent has substantially neglected, wilfully 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. [Emphasis
added.]
During the time the
original dispositional order was in effect, the legislature enacted an amended
version of § 48.415, Stats. See 1993 Wis. Act 395, § 25. The bill provided that the amendment would
first apply to any CHIPS orders or extension orders entered on or after the
effective date of the amendments. See
id. §§ 51, 52. The
statutory changes took effect on May 5, 1994.
The amendments to §
48.415, Stats., made the
following relevant changes to the state's burden in proving a child is in need
of protection or services:
[T]he
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. [Emphasis added.]
Section
48.415(2)(c). Doris did not receive
this warning although the extension orders were filed five months after the
statutory changes took effect.
Because she had only
received warnings under the language of § 48.415, Stats., 1991-92, the trial court determined that the jury
verdicts should reflect the “substantially neglected, wilfully refused”
language, rather than the “substantial progress” language included in the
current statute. Trial counsel for
Doris did not object to this decision.
He stated at the Machner hearing that he was “convinced
that the old standard placed a greater burden on the State to establish ... one
of the primary criteria.”
In spite of trial counsel's
acquiescence, use of this standard constituted plain error. The legislature, in enacting § 48.415, Stats., has prescribed the grounds for
the involuntary termination of parental rights. See D.F.R., 147 Wis.2d at 498, 433 N.W.2d at
613. There is a presumption that the
legislature intends to change the law when it amends a statute. Lang v. Lang, 161 Wis.2d 210,
220, 467 N.W.2d 772, 776 (1991). A
harmless-error analysis cannot be applied to excuse the failure of the trial
court to comply with the imperative command of § 48.356(2), Stats., and its substitution of an
outdated standard in this proceeding. See
D.F.R., 147 Wis.2d at 499, 433 N.W.2d at 614.
While the State concedes
that an outdated standard was used, it argues that because of the precedent of State
v. Patricia A.P., 195 Wis.2d 855, 537 N.W.2d 47 (Ct. App. 1995), the
trial court actually applied the correct standard. The State reasons that “when the standard changes affecting a
parent's rights in ‘mid-stream,’ so to speak, it is unfair for the State to use
anything but the standard contained in the original warning.” However, this argument misconstrues our
holding in Patricia A.P.
In that case, the mother
was properly given the then-current written warning contained in §
48.415(2)(c), Stats.,
1991-92. The last warning was included
with a dispositional order dated January 19, 1994, prior to the amendment of
the statute. On September 2, 1994,
after the effective date of the new § 48.415(2)(c), Stats., the State filed a petition to
terminate Patricia's parental rights.
That petition recited the modified grounds for termination taken
from the amended § 48.415(2)(c), which represented a basis for termination of
which Patricia had never been informed.
We stated that the
change in the type of conduct for which termination is risked is a change in
the quality of the very nature of the acts leading to termination. Patricia A.P., 195 Wis.2d at
864, 537 N.W.2d at 50. We then
concluded that the application of this new standard deprived Patricia of her
parental rights without due process. Id.
at 865, 537 N.W.2d at 51.[4]
Although the State
argues that Patricia A.P. is controlling and requires us to
uphold the trial court's use of the old standard, our holding in that case
actually supports our decision here. In
Patricia A.P., we concluded that the failure of the trial court
to use the same standard as that contained in the warnings Patricia had
received deprived her of due process. Id.
at 863‑65, 537 N.W.2d at 50‑51.
In the present case, the
State failed to warn Doris utilizing the legislature's amended standards, and
the trial court compounded that error by applying the same outdated standard at
trial. Under D.F.R., 147
Wis.2d at 499, 433 N.W.2d at 614, the warning requirement is imposed “because
of the legislature's concern for the due process rights of parents.” Under the legislature's prescription, we may
not substitute alternative ways to satisfy the notice requirements. Id. We conclude that failure to apply the proper standard requires
reversal on due process grounds, just as it did in Patricia A.P.
Doris also contends that
allowing testimony pertaining to events which preceded the October 1994
extension orders was a misuse of discretion.
She argues that the following evidence should have been excluded: the reasons for the initial CHIPS petitions,
testimony from a counselor whom Doris had seen two years earlier, testimony
relating to a home study conducted more than a year before the trial and
testimony from Todd's foster mother pertaining to behavioral difficulties she had
observed which were most apparent when Todd was receiving regular visits from
Doris.
Evidentiary rulings rest
within the sound discretion of the trial court. State v. Seigel, 163 Wis.2d 871, 881, 472 N.W.2d
584, 588 (Ct. App. 1991). This court
will sustain a discretionary act if it is made in accordance with accepted
legal standards and in accordance with the facts of record. Id. at 881-82, 472 N.W.2d at
588.
Doris argues that all
evidence which predated the extension orders of October 1994 should have been
excluded. She contends that this evidence was so remote in time that it was
rendered irrelevant to the issues facing the jury and that its introduction was
unfairly prejudicial. She also moved to
exclude any evidence of Todd's behavior “in the absence of any opinion
testimony of a competent psychological or psychiatric expert establishing a
causal connection between conduct of Doris ... and based upon evaluations by
such expert of both [Todd] and Doris.” We
first consider her contentions of remoteness and irrelevancy with regard to
evidence which predated the extension orders.
The rule is that
relevant evidence is generally admissible.
See § 904.02, Stats. This rule is tempered by § 904.03, Stats., which provides that relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.”
We do not agree with
Doris that the evidence which predated the extension orders was irrelevant to a
determination of whether Todd and Rebecca were in continuing need of protection
or services. For the jury to fairly
evaluate Doris' present ability to care for her children, it is necessary for
the jury to be informed of the conditions which precipitated the original CHIPS
finding. It is clear from the record
that the jury was provided with dates as to when the counselor met with Doris
and when the social worker conducted the home study. The involvement of the State dated back to the original CHIPS
proceeding, and testimony which explained the various aspects of that
involvement was relevant.
We see no basis for
Doris' claim that the proffered testimony was unduly prejudicial. Doris was given an opportunity to
cross-examine each witness and to respond to the evidence. The testimony served to explain the extent
of the State's involvement in this case, and the testimony included the dates
on which the various events took place.
The trial court's admission of this evidence was a proper exercise of
discretion.[5]
Doris also maintains
that all testimony regarding Todd's behavior should have been prohibited and
that “the evidence of inappropriate behavior by Todd Jr. was offered and
introduced solely to inflame the jury.”
Doris also claims that Todd's behavior had no relevance to the issue of
whether she had met the conditions for the return of her children. We disagree.
The trial court
explained that it allowed the disputed testimony because it was relevant to
show “the demands that are going to be made upon the mother to care for this
child.” Furthermore, the testimony of
the foster mother and the social worker which pertained to Todd's behavior was
tempered by the testimony of Dr. Mark Simms, a pediatrician who had examined
Todd. Simms testified:
It
was my opinion initially in November, and again in April that Todd's behavior
was the result of stress, tremendous amount of stress. ... I think it's also
important for me to say that neither the foster mother nor [the social worker]
felt that Todd's mother was doing anything wrong or that he was being
mistreated or was subjected to any intentional or unintentional inappropriate
care. It's just the stress ... that he
was missing his mother intensely and it was very confusing for him. ... So this
constant stress of going back and forth between his mother and the foster home
was creating a tremendous amount of difficulty, behaviorally and physically,
and that he was turning this inwards rather than outwards.
We conclude that the
trial court made a rational and reasoned decision to allow the testimony
regarding Todd's behavioral problems. The testimony of Simms, as well as direct testimony of a social
worker that Doris' treatment of Todd was not at all responsible for Todd's
actions, provided the jury with a balanced presentation of relevant evidence.
In conclusion, we
reverse the termination orders because of the failure of the State to provide
Doris with the proper statutory warnings, which led to the trial court's
utilization of an outdated standard that did not comport with the imperative
requirements of §§ 48.356 and 48.415, Stats. We affirm the trial court's evidentiary
rulings. Doris' claims that the
evidence was insufficient and that her trial counsel was ineffective are deemed
moot. See City of Racine
v. J-T Enters. of Am., 64 Wis.2d 691, 700, 221 N.W.2d 869, 874 (1974).
By the Court.—Orders
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Todd B., Sr., the children's father, was informed of the termination proceedings and chose not to contest the action. Although all of the court proceedings referred to in this opinion concerned both parents, Doris is the sole appellant.
[2] At the time the posttermination appeal was filed, Doris raised an ineffective assistance of counsel claim. This court requested that the trial court conduct a Machner hearing on that issue. See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979). The trial court did not find trial counsel ineffective and denied Doris' motions to set aside the termination orders.
[4] While we noted in State v. Patricia A.P., 195 Wis.2d 855, 864, 537 N.W.2d 47, 51 (Ct. App. 1995), that it is much easier for the state to establish grounds for termination under the new law and that the new law utilizes a purely objective standard, that statement is dicta and provides no rationale for applying the outdated standard.
[5] We note, however, that the standard for evaluating all of the evidence presented in this case is the current standard the legislature has enacted. See § 48.415, Stats. All of the evidence presented at trial must be evaluated in terms of whether Doris has shown “substantial progress” toward meeting the conditions for the return of her children. The trial court's suggestion that a “dual standard” would have to be applied because of the amendments to the statute is incorrect.