COURT OF
APPEALS DECISION DATED AND
RELEASED December
19, 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. 96-1624
96-1625
96-1626
96-1627
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
96-1624
IN RE
THE INTEREST OF HOLLY L. O.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A. O.,
Respondent-Appellant.
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96-1625
IN RE
THE INTEREST OF JEREMY C. T.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A. O.,
Respondent-Appellant.
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96-1626
IN RE
THE INTEREST OF MICHAEL A. T.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A. O.,
Respondent-Appellant.
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96-1627
IN RE
THE INTEREST OF ANDREW J. T.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A. O.,
Respondent-Appellant.
APPEAL
from orders of the circuit court for Waupaca County: JOHN A.
DES JARDINS, Judge. Affirmed.
DYKMAN,
P.J.[1] Karen
A.O. appeals from orders terminating her parental rights to four of her
children: Holly, Jeremy, Michael and
Andrew.[2] Karen argues that: (1) the
agency responsible for the care of the children did not make a diligent effort
to provide the services ordered by the court as required by § 48.415(2), Stats.; (2) the trial court
erroneously exercised its discretion when it terminated her parental rights;
and (3) she is entitled a new trial because of the misconduct of one
juror. We reject her arguments and
therefore affirm.
BACKGROUND
On
July 17, 1984, the court found Holly to be a child in need of protection or services
and ordered six months of supervision.
That order expired on January 17, 1985.
On April 5, 1988, Holly was again found to be in need of protection or
services. She was placed at Tomorrow's
Children, a residential treatment facility for children, from August 23, 1988
to October 25, 1988. The order was
extended several times, and Holly remained in foster care until August 24,
1990, when she was returned to Karen.
The dispositional order terminated on March 7, 1991.
On
July 13, 1992, Holly was adjudicated to be a child in need of protection or
services because she was the victim of physical abuse at the hands of James T.,
the three boys' father and Holly's stepfather.
On August 12, 1992, the court made a similar finding with regard to
Jeremy. Jeremy and Holly were
originally placed with Karen. On
September 25, 1992, however, Karen voluntarily placed her four children
with social services because she was pregnant and unable to care for the
children. Karen gave birth to twins on
November 7, 1992.
On
December 12, 1994, the State petitioned to terminate Karen's parental rights to
the four children under § 48.415(2), Stats.,
because of the children's continuing need of protection or services. On April 30, 1996, after a seven-day trial,[3]
the jury found that the agency responsible for the care of the children and the
family made a diligent effort to provide services ordered by the court. At a May 14, 1996 dispositional hearing, the
trial court granted the State's request to terminate Karen's parental rights to
the four children, concluding that termination was in the children's best
interests. Karen appeals.
DILIGENT
EFFORTS
Under
§ 48.415(2), Stats., the State
must show by clear and convincing evidence 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," as well as several other factors. In re Torrance P., 187 Wis.2d
10, 14, 522 N.W.2d 243, 245 (Ct. App. 1994).
"Diligent effort" means a "reasonable, earnest and
energetic effort." Id.
at 15, 522 N.W.2d at 245. Karen argues
that the jury erred in finding that the county made a diligent effort to
improve her parenting skills as required by court order.
We will uphold a jury's
finding of fact if any credible evidence, under any reasonable view, supports
the finding. Foseid v. State Bank,
197 Wis.2d 772, 782, 541 N.W.2d 203, 207 (Ct. App. 1995). The jury, not a reviewing court, determines
the credibility of witnesses and the weight of their testimony. State v. Wyss, 124 Wis.2d 681,
694, 370 N.W.2d 745, 751 (1985).
Whether an agency has made a diligent effort to provide court-ordered
services is a fact-sensitive inquiry that must consider the totality of the
circumstances as they exist in each case.
Torrance P., 187 Wis.2d at 14, 522 N.W.2d at 245.
After
reviewing the evidence, we conclude that the jury's finding that the county
made a diligent effort to improve Karen's parenting skills is supported by
credible evidence. On December 22,
1988, Dr. James Fico, a clinical psychologist, evaluated Karen and concluded
that hands-on training, not psychotherapy, would be the best method with which
to teach Karen parenting skills. In
early 1993, Dr. Max Bowen, another clinical psychologist, evaluated Karen and
also concluded that hands-on training would be the best method of training
her. He did not think, however, that
Karen's problems were treatable.
The
county contracted with Family Training Program to provide parenting training to
Karen. Family Training Program provided
Karen with hands-on parenting training with the four children from April 1993
to November 1993.[4] Laverne Fraevel, a family trainer with
Family Training Program, felt that Karen's parenting abilities improved
slightly over the course of the training but did not approach the level needed
to parent all of her children effectively.
Elaine
Bethel, a home consultant for the Department of Human Services for Outagamie
County, also provided Karen with parenting training from March 1993 to November
1993. Bethel did not believe that
Karen's parenting abilities improved from the training and did not think that
Karen showed any progress toward being able to handle all four children at one
time.
Karen
argues that the county should have conducted parenting sessions with one or two
children first and then integrated the other children at a later date. But from March 1993 to August 1993, the
county did conduct parenting sessions with only two children present at a
time. The county did not have unlimited
time, however, with which to attempt to integrate Karen's children into her
family. At some point, it needed to
determine whether she could handle all four children as well as her twins. It was reasonable for the county to conduct
parenting sessions with Karen and all of her children to determine whether she
could effectively parent all six children at the same time.
Eventually,
the county needed to conclude that Karen's parenting skills could not be
improved to the point at which she could care for all of her children and take
other actions in the children's best interests. In light of the fact that the psychologist did not believe that
Karen's problems were treatable and that Karen showed little or no progress
during parenting training, a jury could reasonably conclude that the county's
provision of parenting training from March 1993 to November 1993 represented a
"reasonable, earnest and energetic effort" to improve Karen's parenting
skills. Therefore, the jury's finding
is supported by credible evidence.
BEST
INTERESTS DETERMINATION
Karen
argues that the trial court erroneously exercised its discretion in terminating
her parental rights to the children.
Specifically, Karen argues that termination is not in the children's
best interests because they will have continued anger problems and have poor
potential for adoption.
In deciding the
appropriate disposition in a termination of parental rights case, the court
must consider the factors enumerated in § 48.426, Stats. The best
interests of the child is the prevailing factor considered by the court. Section 48.426(2).[5] The trial court's determination of the best
interests of the child will not be upset unless the decision represents an
erroneous exercise of discretion. In
re Brandon S.S., 179 Wis.2d 114, 150, 507 N.W.2d 94, 107 (1993). The exercise of discretion requires a
rational thought process based on an examination of the facts and application
of the relevant law. Id.
In
making its determination, the trial court considered the children's anger
problems and their prospects for adoption in concluding that termination of
parental rights was in their best interests.
The court reasoned that for the children to resolve their anger issues
with Karen, she would need to make dramatic changes from where she was in the
past. Considering Karen's personality
and her lack of progress in parenting training, the court concluded that she
would not make these dramatic changes.
The court also reasoned that the foster families' commitment to the
children made adoption a reasonable possibility.[6]
The
court also considered the other statutory factors for determining the best
interests of the children. The court
considered the ages of the children and did not believe that age was an
important factor unless the children were teenagers, which these children were
not. The court did not believe that any
of the children had enjoyed a substantial relationship with Karen. Instead, the court thought that the children
had developed meaningful, almost permanent relationships with their foster
families. The court also did not think
that the wishes of the children were as important as some of the other
factors.
We
believe the record shows that the trial court rationally considered the facts
and statutory factors in deciding to terminate Karen's parental rights. Therefore, the trial court did not
erroneously exercise its discretion.
JUROR
MISCONDUCT
On
May 23, 1996, Karen's attorney talked with one of the jurors from the
trial. The juror indicated that she was
pressured by another juror to decide against Karen because the careers of the
social workers and professionals involved would be put in jeopardy if Karen's
parental rights were not terminated.
Karen moved the trial court to grant a new trial, submitting an affidavit
from the juror who had spoken with her attorney. The trial court denied the motion. Karen argues that she should be granted a new trial because the
jury improperly considered extraneous prejudicial information.
Section
906.06(2), Stats., makes
incompetent most evidence of what jurors say and do during deliberations. State v. Marhal, 172 Wis.2d
491, 495, 493 N.W.2d 758, 760-61 (Ct. App. 1992). Section 906.06(2) allows jurors to testify or submit affidavits,
however, with regard to two areas:
(1) "whether extraneous prejudicial information was improperly
brought to the jury's attention," and (2) "whether any outside
influence was improperly brought to bear upon any juror." See id. at 496, 493
N.W.2d at 761.
Karen
argues that the information imparted by the juror was extraneous prejudicial
information. Information is
"extraneous" when it "is both not of record and beyond the
jurors' general knowledge and accumulated life experiences." Id. at 496 n.4, 493 N.W.2d at
761.
In
Johnson v. Agoncillo, 183 Wis.2d 143, 162, 515 N.W.2d 508, 516
(Ct. App. 1994), we concluded that information "that a physician's career
might be adversely affected by a verdict finding the physician guilty of
malpractice" is not extraneous prejudicial information because it is not
beyond the jurors' general knowledge and accumulated life experiences. Consistently, we conclude that the juror's
statement that the careers of the professionals and social workers involved
with Karen's case could be affected if Karen's parental rights were not
terminated is also not extraneous prejudicial information. Because the information was not
"extraneous," the juror's affidavit is not competent evidence under
§ 906.06(2), Stats. Therefore, we reject Karen's request for a
new trial.
By
the Court.—Orders affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] This appeal is decided by one judge pursuant
to § 752.31(2)(e), Stats. This appeal has been expedited. Rule
809.107(6)(e), Stats.
[2] Holly was born on December 26, 1983, Jeremy
on December 30, 1985, Michael on October 1, 1987, and Andrew on May 19, 1990.
[3] This was the second trial in this
matter. On February 21, 1995,
after a ten-day trial, the jury found grounds to terminate Karen's parental
rights to the four children, and on April 5, 1995, the court ordered the termination
of Karen's parental rights. We reversed
the trial court's orders, however, and remanded for a new trial. See In re Holly O.,
Nos. 95-3075 through 95-3078, unpublished slip op. (Wis. Ct. App. Feb. 15,
1996).
[5] Section 48.426(3), Stats., provides the factors the court must consider in
determining the best interests of the child:
Factors. In considering
the best interests of the child under this section the court shall consider but
not be limited to the following:
(a) The
likelihood of the child's adoption after termination.
(b) The
age and health of the child, both at the time of the disposition and, if
applicable, at the time the child was removed from the home.
(c) Whether
the child has substantial relationships with the parent or other family
members, and whether it would be harmful to the child to sever these
relationships.
(d) The
wishes of the child.
(e) The
duration of the separation of the parent from the child.
(f) Whether the child
will be able to enter into a more stable and permanent family relationship as a
result of the termination, taking into account the conditions of the child's
current placement, the likelihood of future placements and the results of prior
placements.