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COURT OF APPEALS DECISION DATED AND RELEASED January 22, 1997 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 96-3154
96-3155
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 96-3154
IN THE INTEREST OF
DAMARIS G.,
a person under the age
of 18:
BROWN COUNTY,
Petitioner-Respondent,
v.
MARSHA A. G.,
Respondent-Appellant.
______________________________________________________________________________
No. 96-3155
IN THE INTEREST OF
VERLYNN W.,
a person under the age
of 18:
BROWN COUNTY,
Petitioner-Respondent,
v.
MARSHA A. G.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Brown County:
WILLIAM M. ATKINSON, Judge. Affirmed.
MYSE, J. Marsha A. G. appeals
orders terminating her parental rights to her two children, Damaris G., born
March 3, 1994,[1] and Verlynn
W., born June 20, 1991. Marsha contends
that there was insufficient evidence to support the jury's determination that
she failed to comply with conditions required in dispositional orders entered
as to each of the two children. Marsha
further contends that because the trial court's orders terminating her parental
rights were based upon this erroneous jury determination, the orders are
invalid. Because this court concludes
that there is sufficient evidence to support the jury's determination that
Marsha failed to comply with the conditions required of her by dispositional
orders made as to each of her two children and that the court properly
exercised its discretion by ordering termination of her parental rights to each
of these children, the orders are affirmed.
In July 1994, Marsha A.
G. was arrested for criminal damage to property. At the time of her arrest, she was intoxicated and advised the
police that she had to return home because she had left her four-month-old son,
Damaris, home alone. When the police
investigated, they found Damaris and three-year-old Verlynn in the apartment
without any supervision. An informal
dispositional agreement was executed requiring that Marsha undergo an AODA
assessment and successfully complete treatment recommendations in regard to her
abuse of alcohol, not leave the children alone for any length of time and
cooperate with the public health nurse and her assigned social worker.
Marsha did not attend
the AODA assessment scheduled pursuant to the order and was advised by the
physician who had been treating her children that he would no longer render
care for the children because of the multiple missed appointments. At this point, Damaris had not received any
of his required immunizations and Verlynn was also in need of additional immunization
shots.
In December, Marsha was
arrested when she failed to pay a taxicab driver and was found to be
intoxicated at the time of her arrest.
After she was taken to jail, Marsha advised jailers that her two
children had been left alone. An
investigation found that both children had been left unsupervised in the
apartment. They were placed in a foster
home on an emergency basis and a CHIPS petition was filed.
Following a contested
hearing, the children were found to be in need of protective services and a
CHIPS order containing certain conditions was entered in February 1995. The conditions required by virtue of that
order were:
(1) Marsha shall obtain a stable and nurturing
environment for her children. This
environment shall contain all of the necessary items for the care of her
children. This environment shall be free of alcohol, drugs, and violence.
(2) Marsha shall follow through on recommendations
resulting from her AODA assessment. She
shall demonstrate an ability to maintain sobriety for six months prior to the
return of the children to her care.
(3) Marsha shall cooperate with the present
placement of her children, and under no circumstances shall she interfere with
their placement.
(4) Marsha shall visit with her children on a
consistent basis as arranged through the Department.
(5) Marsha shall cooperate with the Parent-Child
Interaction Group with her children.
She shall consistently attend group and remain in group until she is
successfully discharged.
....
(9) Marsha shall cooperate with the Brown County
Human Services Department and the assigned social worker. She shall meet for scheduled and unannounced
home visits, as well as to execute unnecessary (sic) releases of information
between service providers and the Department.
Marsha
completed an alcohol assessment and an intensive out-patient treatment
program. She began her after-care
treatment, but upon her release from jail began to miss required meetings. In June, Marsha's social worker received
information that Marsha had been drinking at a party. She also was very intoxicated during a hospital visit with
Damaris and had to be removed by hospital security. In August, Marsha was involved in an altercation at a party and
was determined to have been drinking.
There was an additional domestic violence incident in August where
Marsha was once again determined to have been drinking. In October and December 1995, Marsha
appeared for her parent-child meetings smelling of alcohol.
In January 1996, Marsha
agreed to re-enroll in the after-care program and met with an alcohol
counselor, Darlene Watson. Marsha
agreed to weekly co-dependency meetings, bi-weekly Alcoholics Anonymous and
individual meetings when scheduled with Watson. It was emphasized that if Marsha missed any of these meetings she
would be referred to an intensive out-patient treatment program.
Marsha did miss several
of the meetings and a referral to out-patient treatment was made. Marsha failed to appear for the commencement
of her second intensive out-patient treatment program and missed a series of
appointments which led her to be dropped from the program. In her trial testimony, Marsha admitted that
she had been drinking steadily during her counseling and that the counseling
did not assist her to quit drinking.
She denied that she had an alcohol problem.
During the twenty months
during which the CHIPS order was pending, Marsha, who had been evicted from her
apartment, which had been found to be a suitable residence by the department of
health and social services, resided with her boyfriend, with various other
people, as well as in different homeless shelters and at the county jail. Marsha contends she was unable to find an
apartment because she could not pass a credit check that was required by a
housing organization to which she had been referred by the department of health
and social services. She did not advise
anyone of her concern that her credit disqualified her from suitable housing
and sought no assistance from any organization in resolving this dilemma.
Marsha contends that the
only two conditions she failed to meet were those relating to the requirement
that she obtain suitable housing so she could provide a stable and nurturing
environment for the children that was free of alcohol, drugs and violence; and
that she follow the recommendations received as a result of an AODA assessment
and demonstrate the ability to remain sober for six months prior to the return
of her children. While the County
contends that there is evidence from which the jury could conclude that she
failed to meet each of the other conditions imposed as part of the CHIPS order,
this court will limit its review to the sufficiency of the evidence to support
the jury's findings based on the two conditions identified by Marsha because
her failure to comply with any one of the conditions is sufficient to support
an order terminating her parental rights.
Section 48.415(2)(c), Stats.
The jury found that the
Brown County Human Services Department made a diligent effort to provide the
services ordered by the court, that Marsha failed to demonstrate substantial
progress toward meeting the conditions required for the return of her children
and that there was a substantial likelihood that Marsha would not meet these
conditions within one year after the termination of parental rights'
hearing. Marsha contends there is
insufficient evidence to support the jury's answer to each of these inquiries.
In reviewing a jury
verdict, an appellate court must sustain the verdict if there is any credible
evidence that would permit a reasonable finder of fact to reach the conclusion
reached by the jury. Fehring v.
Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984), overruled
on other grounds by DeChant v. Monarch Life Ins. Co., 200
Wis.2d 559, 547 N.W.2d 592 (1996). The
jury's determination must be affirmed even if there is substantial evidence
that would permit a fact finder to reach a contrary conclusion, even if the
contrary conclusion is supported by the preponderance of the evidence. See Platz v. United States
Fidelity & Guar. Co., 195 Wis.2d 775, 782, 537 N.W.2d 397, 400 (Ct.
App. 1995). Credibility of the
witnesses and the weight to be accorded to the testimony of each witness is a
matter solely within the province of the jury.
Fehring, 118 Wis.2d at 305-06, 347 N.W.2d at 598. When more than one inference may be made
from evidence, the reviewing court must accept the inference made by the jury
even though contrary inferences may be drawn.
Id. It is the
appellate court's duty to search the record for credible evidence to sustain
the jury verdict. Id. at
306, 347 N.W.2d at 598.
Marsha contends that
there is insufficient evidence to support the jury's determination that she
failed to follow the recommendations resulting from her AODA assessment and
demonstrate the ability to remain sober for six months prior to the return of
her children and that there was no substantial likelihood she would comply in
the future. Marsha contends that an
expert's opinion of her inability to maintain sobriety is required before the
jury is privileged to make such a finding because sobriety is a medical
condition that can be determined only by expert testimony and that the record
is devoid of any expert testimony that would permit the jury to conclude that
Marsha failed to meet this condition.
This court does not accept either of Marsha's contentions.
While alcoholism may be
a medical condition and expert testimony may be required as to some issues
arising from alcohol abuse, the question whether she followed the
recommendations made as a result of her assessment and demonstrated the ability
to maintain sobriety are not matters requiring expert testimony. Factual determinations are within the realm
of the ordinary experience of mankind and may be made by a jury without the
benefit of expert testimony. Drexler
v. All American Life & Cas. Co., 72 Wis.2d 420, 428, 241 N.W.2d
401, 406 (1976). The jury is required
to rely on the opinions of experts only when the factual determination involves
unusually complex or esoteric issues. Bulik
v. Arrow Realty, Inc., 154 Wis.2d 355, 361, 453 N.W.2d 173, 176 (Ct.
App. 1990).
In this case, the jury
was asked to determine whether Marsha complied with the condition that she
follow a treatment program resulting from an AODA assessment, whether she had
demonstrated sufficient ability to maintain sobriety for a period of six months
and whether there was a substantial likelihood she comply in the future. These inquiries are not technical in nature
requiring special understanding or experience, but can be made based upon the
general experience of mankind. The AODA
assessment resulted in a recommendation that Marsha undergo intensive
out-patient treatment followed by an after-care program. Marsha completed the out-patient treatment
and commenced the after-care treatment program initially proscribed.
Further incidents
demonstrating her continued alcohol abuse resulted in a series of other
treatment requirements under the supervision of an alcohol counselor. She failed to comply with these requirements
and was again referred to an intensive out-patient program which she failed to
attend. Her failure to attend the
second intensive out-patient program from which she eventually withdrew is
sufficient to support the jury's determination that she failed to follow the
recommendations resulting from her AODA assessment. The fact that she initially complied with the assessment
recommendations is insignificant if she did not continue with the treatment to
assist her in becoming sober.
Her continued abuse of
alcohol, the fact that she was intoxicated on numerous occasions during a time
she was to have undergone treatment and her continued and persistent abuse of
alcohol are sufficient to support the jury's finding in regard to this
condition. Marsha cannot successfully
contend that she satisfied this condition because she completed the initial
out-patient treatment program, in light of the fact that she failed to complete
the after-care program and failed to complete the second out-patient treatment
program recommended as a result of her continued alcohol abuse following the
initial treatment. This court concludes
there is sufficient evidence to support the jury's conclusion that Marsha
failed to meet the requirement that she follow the recommendations resulting
from the AODA assessment and demonstrate the ability to maintain sobriety for a
period of six months prior to the return of her children and that there was no
substantial likelihood that she would comply in the future.
Marsha further contends
that there is insufficient evidence to support the jury's determination that
the County exercised sufficient diligence to assist her in obtaining a stable
and nurturing environment for her children, free of alcohol, drugs and
violence. A diligent effort requires
the state to put forth a "reasonable", "earnest", and
"energetic" effort. In
re D.P., 170 Wis.2d 313, 330-31, 488 N.W.2d 133, 140 (Ct. App.
1992). Marsha contends that her
inability to obtain an apartment was the result of her failure to be able to
pass a credit check required by the agency to whom she was referred for
assistance by the Brown County Human Services Department.
The evidence is
uncontested that the County offered financial assistance by offering a security
deposit, the first month's rent and referring her to an agency to assist her in
locating suitable housing. The record
does not disclose that Marsha made any applications for housing and was denied
because of her credit or that she identified this impediment to her obtaining
housing so that the County could assist her in addressing this issue. In the absence of any attempt to obtain
assistance in regard to this issue, her persistent failure to obtain housing
over a twenty-month period, the County's offer of a security deposit as well as
the first month's rent and referring Marsha to an agency to assist her housing
needs, the record adequately demonstrates the human services department's
diligent efforts to assist Marsha in meeting this condition and the jury's
determination that Marsha failed to meet this condition of the CHIPS order.
While the County
contends there is sufficient evidence that Marsha failed to meet the remaining
conditions of the CHIPS order, this issue need not be addressed on the court's
conclusion that there is sufficient evidence to support the jury's
determination that Marsha failed to meet the first two conditions of the CHIPS
order. The failure to meet any single
condition is sufficient to justify the termination of her parental rights. Section 48.415(2)(c), Stats.
Marsha next contends
that the trial court erroneously exercised its discretion by ordering
termination because the court relied on the jury's findings in exercising its
discretion in regard to termination.
Because there is sufficient evidence to support the jury's determination
in regard to these issues, the contention that the court erroneously exercised
its discretion is without merit. Under
the circumstances of this case, including Marsha's continued abuse of alcohol
and her failure to obtain suitable housing, this court concludes that the trial
court's determination that the termination of parental rights would be in the
children's best interests is adequately supported by the record. This court therefore concludes that the
orders terminating the parental rights to Damaris and Verlynn must be affirmed.
By the Court.—Orders
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.