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COURT OF APPEALS DECISION DATED AND FILED February 20, 2007 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEALS
from orders of the circuit court for Brown County: WILLIAM
M. ATKINSON, Judge. Affirmed.
¶1 PETERSON J.[1] Jayson C. appeals orders terminating his parental rights and orders denying his postjudgment motions. Jayson argues he should be granted a new trial because he was entitled to a jury instruction stating that the jury was not to find grounds to terminate his parental rights due to his failure to meet conditions of return based solely on his incarceration. We disagree and affirm the orders.
BACKGROUND
¶2 Geneva and Ciara C. had been out of their parental home since August 27, 2003. The children were taken into protective custody pursuant to CHIPS dispositional orders entered on December 11, 2003. Jayson, their father, was incarcerated when the children were removed but he was released shortly thereafter, on January 4, 2004. Jayson’s probation was revoked in October 2004. He was then sent to prison and is expected to remain in prison until October 10, 2008.
¶3 On October 3, 2005, the County filed petitions for termination of parental rights alleging the children were in continuing need of protection or services. The petitions alleged Jayson had failed to meet the conditions of return in the CHIPS disposition orders. The court held a two-day jury trial on March 28 - 29. The jury found grounds to terminate Jayson’s parental rights. On May 11, 2006, the court held a dispositional hearing and terminated Jayson’s parental rights.
DISCUSSION
¶4 Jayson argues he was entitled to a jury instruction consistent with the holding of Jodie W. that “[a] parent’s failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground for finding a parent unfit.” See Kenosha County DHS v. Jodie W., 2006 WI 93, ¶49, 293 Wis. 2d 530, 716 N.W.2d 845. In Jodie W., the trial court found grounds for terminating parental rights solely because the parent was unable to meet a condition of return due to her incarceration. Id., ¶¶10-11, 55. The supreme court held “a parent’s failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground for finding a parent unfit.” Id., ¶49 (emphasis added). However, the court also stated “[o]ur conclusions do not render a parent’s incarceration irrelevant .… a parent’s incarceration is not itself a sufficient basis to terminate parental rights.” Id., ¶50.
¶5 Jayson cites no authority[2]
to support an argument that he was entitled to a jury instruction for a legal
proposition that did not exist at the
time of his trial. He even concedes
that because Jodie W. was not yet law at the time his case was
decided, the circuit court did not commit error. We therefore perceive no grounds to
reverse. Further, we will not find error
with jury instructions “if its instructions given adequately cover the law
applied to the facts” even though the court could have given other
instructions. State v. Amos,
153 Wis. 2d 257, 278, 450 N.W.2d 503 (Ct. App. 1989). In this case, the court instructed the jury
to consider “all evidence.” There was no
suggestion that the jury should base its decision solely on Jayson’s
incarceration. Finally, Jayson did not object
to the instruction given at trial.
Failure to object to a jury instruction constitutes waiver. Wis. Stat. § 805.13(3).
¶6 Even had Jodie
W. been the law at the time of this case, Jayson has
failed to prove it would have influenced the outcome because he
concedes his incarceration affected several but not all of his return
conditions. In Jodie W.,
the parent’s rights were terminated after she entered a plea admitting she
could not meet one condition of return due to incarceration. Id., ¶¶10-11. In reviewing the case, the supreme court
noted that Jodie made “significant progress toward meeting many of the other
conditions of return.” Id.,
¶54. The supreme court concluded Wis. Stat.
§ 48.415(2)(a) was unconstitutional as applied to Jodie because the court
found grounds to terminate Jodie’s parental rights “based on an impossible
condition of return, without consideration of any other relevant facts and
circumstances….” Id.,
¶56 (emphasis added).
¶7 Jayson’s trial examined his ability to meet all of the conditions of return. The jury heard evidence of Jayson’s failure to complete conditions of return he had the opportunity to complete while incarcerated. The conditions included requiring Jayson to complete drug and alcohol counseling, parenting classes, and individual counseling. Jayson has not alleged he was unable to meet these conditions due to his incarceration.
¶8 Furthermore, there was evidence that Jason did little if anything to meet the conditions before he was incarcerated. Joan Slempkes, a social worker, testified Jayson did not complete the AODA[3] aftercare program with Brown County; Jayson failed to complete the Jackie Nitschke Center AODA program, and made statements that he did not need to attend the Alcoholics’ Anonymous meetings. Jayson also failed to complete his alternative to revocation at St. Croix Boot Camp, with his discharge summary noting he “was one of the least cooperative inmates ever to attend [the program].” Jayson’s own expert testified that relapse for Jayson was “highly likely.” Slempkes testified that of the twelve[4] conditions set forth by the court, Jayson had only met one. Jayson disagreed with Slempkes, but the jury was entitled to find Slempkes’s testimony more credible then Jayson’s. See State v. Givens, 217 Wis. 2d 180, 197, 580 N.W.2d 340 (Ct. App. 1998). Based on this testimony, Jayson has failed to demonstrate the jury found grounds to terminate his parental rights solely due to conditions of return he could not meet because of his incarceration.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule § 809.23(1)(b)4.
[1] These appeals are decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are
to the 2003-04 version unless otherwise noted.
[2] Under Wis. Stat. § 809.19(1)(e), proper appellate argument requires an argument containing the contention of the party, the reasons therefore, with citation of the authorities relied upon. See State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980).
[3] AODA stands for: Alcohol and Other Drug Abuse.
[4] Only eleven of the twelve conditions are relevant to this case.