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COURT OF APPEALS DECISION DATED AND RELEASED August 29, 1996 |
NOTICE |
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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. |
No. 96-1794
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In re the Termination
of Parental Rights of
Christina S. and Eric
S., Persons Under the
Age of 18:
State of Wisconsin,
Petitioner-Respondent,
v.
Stephen S.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Affirmed.
SCHUDSON, J.[1] Stephen S. appeals from the trial court
order terminating his parental rights to Christina S., and Erik S. He raises five issues. This court affirms.
The State filed a
petition to terminate the parental rights of Stephen S. and Pamela M. to their
children, Christina and Erik. Pamela,
represented by her guardian, did not object to the termination of her parental
rights. Stephen did, and his TPR case
was tried before a jury.
The jury unanimously
found that Stephen had abandoned Christina and had failed to assume parental
responsibility for Erik. Based on those
findings and additional undisputed submissions regarding the parents, children,
and the CHIPS case history, the trial court concluded that: (1) Stephen had
abandoned Christina, under § 48.415(1)(a)2, Stats.; Stephen was
unfit; and it was in Christina's best interest to terminate Stephen's parental
rights; and (2) Stephen had never assumed a full parental relationship with
Erik, under § 48.415(6), Stats.;
Stephen was unfit; and it was in Erik's best interest to terminate Stephen's
parental rights. The trial court
ordered termination of Stephen's parental rights to both children.
Stephen first argues,
only with respect to Christina, that the trial court “erred by including in the
period of abandonment the time period [he] was prevented by the Milwaukee
County Department of Social Services\Children's Services Society from having
contact with his daughter.” Arguing in
support of Stephen's motion in limine before the trial court, Stephen's
counsel maintained that a social worker stated “that she was unwilling to setup
visits before she had proof of [Stephen's] alcohol treatment.” Therefore, counsel argued, the social worker
had confused a condition for return with a condition for visitation and
improperly denied visitation. Stephen
refers to the trial testimony of Inga Kunzel, the social worker for Children's
Service Society assigned to his case.
He contends that although she met with him on September 20, 1994 to
discuss the conditions he would have to meet in order to be allowed visitation
with his children, she never set up any visits. Thus, Stephen contends that “[t]he record shows that during the
period of alleged abandonment, [he] attempted to visit Christina S., but was
prevented from doing so by what amounted to state action.” Stephen further explains:
The
governing [CHIPS] order ... stated that the Children's Services Society of
Wisconsin has legal custody of the children, and is the agency which shall
provide services in this matter. The
order further provided that Stephen S. shall visit Christina S. on a regular
basis. However, it was the very agency
appointed by the court that prevented Stephen S. from visiting Christina S. during
the alleged period of abandonment.
Therefore, Stephen S. was, in effect, ... prevented by court order from
visiting Christina S., at least until September 20, 1994.
Both
the State and the guardian ad litem opposed Stephen's motion in limine. The State suggested that there would be a
factual issue of whether Stephen “asked for visitation of any kind in any
reasonable context.”
Section 48.415(1)(a)2, Stats., provides, in part, that
abandonment may be established by a showing of a parent's failure “to visit or
communicate with the child for a period of 6 months or longer,” but that the
six-month period “shall not include any periods during which the parent has
been prohibited by judicial order from visiting or communicating with the
child.” The trial court, denying
Stephen's motion in limine to exclude evidence of the challenged time
period, examined the court file and concluded “that there is no such order in
existence and never had been such an order ... prohibiting him from visiting or
communicating with the children.”
The trial court was
correct. Stephen does not dispute the
nonexistence of any such order.
Instead, he maintains that the social worker's conduct “in effect” had
the force of an order preventing his contact.
At the point of his motion in limine, his account of the
department's action was disputed; further, his account of Ms. Kunzel's trial
testimony is incomplete.
Kunzel was one of
several social workers who testified about the difficulties encountered in
attempting to gain Stephen's cooperation and involvement with the
children. Kunzel testified that
although she attempted to review with Stephen the conditions for return, and
although she asked that he provide documentation of his compliance with
conditions including alcohol treatment, she never denied him visitation. As the guardian ad litem accurately
summarized:
Inga Kunzel testified that she attempted
to schedule numerous appointments with the father, only to have him cancel all
but one of them....
In the instant case the record supports the
fact that Mr. S. had no contact with Christina S. from July, 1992 to the filing
of the termination of parental rights petition [on March 8, 1995]. The Court correctly ruled that, since no
court order ever barred Mr. S. from visitation, it would be Mr. S.'s right to
present evidence to the jury that he did not disassociate himself from or
relinquish responsibility for Christina.
Mr. S. was provided the opportunity to present evidence regarding his
telephone contacts with social workers and his various reasons for not visiting
or keeping appointments. The trial
court properly allowed the jury to consider the evidence regarding disassociation
....
This
court agrees. The trial court properly
allowed evidence of both Stephen's and the department's actions during the
challenged time period so the jury could determine whether Stephen had
abandoned Christina.
Stephen next asserts
that “the record does not support the finding that [he] disassociated himself
from Christina S., or relinquished responsibility for her care and well-being,
pursuant to § 48.415(1)(c), Stats.” In support of that assertion, however,
Stephen argues only that “[t]he same evidence cited above” regarding the
challenged time period “shows that [he] did not disassociate himself from
Christina S. during the period of alleged abandonment.” Thus, rather than disputing the substantial
evidence of disassociation introduced at trial, Stephen contends that the evidence
of disassociation stemming from the challenged time period should have been
excluded and, without it, the evidence was insufficient. Having already concluded, however, that the
trial court properly allowed that evidence, this court also rejects Stephen's
second argument.
Stephen next argues that
“the record does not support the finding that [he] failed to establish a
substantial parental relationship with Eri[k] S., or failed to assume parental
responsibility for Eri[k] S., pursuant to § 48.415(6), Stats.” Stephen
points to evidence of his “numerous visits” with Erik “at least through 1992,”
and claims that after 1992, his “numerous attempts ... to visit Eri[k] S. ...
were met with a lack of response from the Department.”
A jury verdict will be
approved if there is any credible evidence to support it. See Giese v. Montgomery Ward,
Inc., 111 Wis.2d 392, 408, 331 N.W.2d 585, 593 (1983). Stephen correctly explains that “[t]he issue
at trial was whether [he] established a substantial relationship with Eri[k]
S., and whether Stephen S. assumed parental responsibility for Eri[k] S.” In support of his argument, however, Stephen
ignores substantial evidence countering his version of his relationship with
the social services department, and establishing his failure to assume parental
responsibility. As summarized by the
guardian ad litem:
The
testimony presented at trial established that Erik S. had been born out of
wedlock, prematurely, with a myriad of special medical needs. The testimony also established that Erik was
released from the hospital directly to the home of a paternal aunt and was
found to be a Child In Need of Protection or Services on March 21, 1988. The record also established that Mr. S. had
sporadic contact with Erik through that child's life and had no contact with
Erik at all after January of 1993.
Stephen S. did not become adjudicated for Erik S. until August 15, 1995,
over five (5) months after the termination of parental rights petition was
filed and three days following Erik's eighth birthday.
....
Testimony from Erik's foster mother indicated
that Erik has twice mentioned his father in the nearly two and a half year
period between his placement in the foster parent's home and the testimony
given in October of 1995. According to
the foster parent, Erik referred to his father as “Uncle Steve” and as “that
man” but never as his dad. Finally by
Mr. S's own admission he had very little knowledge of what was happening in
Erik's life.
This
court has reviewed the record and agrees that substantial evidence of Stephen's
disassociation supported the jury's verdict and the trial court's
conclusion.
Stephen next argues that
“the trial court abused its discretion in terminating [his] parental
rights.” Other than quoting the
relevant statutes and case law, however, Stephen only contends:
The
evidence cited in the previous section of this brief shows that despite his
problems, [he] maintained contact with his children, or at least attempted to
do so. The court failed to consider
that on numerous occasions the Department failed to cooperate with [him] when
he expressed a desire to visit, or regain custody of his children.
Stephen
then argues that “[f]or all these reasons, the trial court abused its
discretion in terminating the parental rights.”
When a jury finds
grounds for termination of parental rights, the trial court must determine
whether termination is the appropriate disposition. See §§ 48.424(3) & 48.427, Stats.
“[T]he trial court ‘must consider all the circumstances and exercise its
sound discretion as to whether termination would promote the best interests of
the child.'” In the Interest of
J.L.W., 102 Wis.2d 118, 131, 306 N.W.2d 46, 52 (1981).
Other than attempting to
rewrap rejected arguments in a new theory, Stephen fails to develop any
argument seriously challenging the trial court's determinations. This court has reviewed the record and notes
that Stephen did not even appear for the dispositional hearing. The trial court carefully considered the
evidence, applied the correct legal standards, and reasonably exercised
discretion. While acknowledging certain
conflicting evidence and expressing sympathy for certain circumstances beyond
Stephen's control, the trial court commented that Stephen “tends just to be
overwhelmed by life, and these children cannot afford to have a parent who's
overwhelmed by life because they have overwhelming problems and the only way
those problems are going to be adequately addressed or resolved is if someone
steps up to the plate for them.” As the
trial court further commented, the prospect of adoption by devoted foster
parents provided “a miracle” for the children— “that they're getting this
opportunity” despite serious problems and years of parental neglect. The record of the dispositional hearing
provides a solid basis for the trial court's conclusions.
Finally, Stephen argues
that § 48.415(1)(c), Stats.,
violates his right to due process because “it shifts the burden of proof to the
parent whose parental rights the State seeks to terminate.” Stephen failed to present this argument to
the trial court. He argues in the
alternative, therefore, that trial counsel was ineffective for failing to raise
the issue.
Section 48.415(1)(c), Stats., states that “[a] showing ...
that abandonment has occurred may be rebutted by other evidence that the parent
has not disassociated himself or herself from the child or relinquished
responsibility for the child's care and well-being.” As the State and guardian ad litem point out, the supreme court
recently decided In re Kyle S.-G., 194 Wis.2d 365, 533 N.W.2d 794
(1995), rejecting the very argument Stephen now raises. The Court held “that the burden of proof
does shift to the parent once abandonment has been established, and that it is
the parent's burden to show by a preponderance of the evidence that
disassociation or relinquishment of responsibility for the child's care and
well-being has not occurred.” Id., 194 Wis.2d at 369, 533 N.W.2d
at 795. Accordingly, this court
concludes that Stephen could not have suffered any prejudice by virtue of his
counsel's failure to present an argument that could not have prevailed.
By the Court—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.