COURT OF APPEALS DECISION DATED AND FILED September 3, 2008 David R. Schanker Clerk of Court of Appeals |
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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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APPEAL
from orders of the circuit court for
¶1 BROWN, C.J.[1] Heather M. appeals from orders terminating her parental rights to her five year old daughter, Monica, under Wis. Stat. § 48.417(1)(a), and denying post-dispositional relief. Her basic complaint is that the jury should not have heard evidence of physical discipline because the jury’s only question was whether she failed to meet Monica’s physical and emotional needs. She posits that, since the Department did not charge her with child abuse, such evidence was irrelevant and prejudicial. She passes off her acts as perfectly reasonable “physical discipline.” We disagree. Child safety is necessary to meet a child’s physical and emotional needs. Thus, evidence of physical discipline and Heather’s relationships are relevant to whether Heather is likely to meet that condition. Accordingly, we affirm. We further reject Heather’s other claims of unfair prejudice because the evidence did not undermine the outcome.
¶2 In February 2003, when Monica was about nine months old, the Department
transferred guardianship to Heather’s mom. The transfer happened after Heather’s
boyfriend at the time physically abused Monica. The incident occurred while Heather left
Monica unsupervised with the boyfriend, even though she knew he was on probation
for sexually assaulting a minor. Heather
argued that it was not a “big deal” because she spanked Monica in similar
situations. After guardianship shifted,
Heather had very little involvement in Monica’s life and did not assume any
parental responsibilities when her mother could no longer care for Monica. Instead, Monica was in and out of foster care.
¶3 In January 2006, Monica entered foster care full-time and two
months later, the Department filed a CHIPS action because Heather’s behavior and
character traits interfered with Monica’s care.
See Wis. Stat. § 48.13(8). Then, Heather sought
custody and began sporadically visiting Monica.
¶4 During the next year, Heather’s visits ended with Monica
returning to foster care uncared for and with signs of physical discipline. Monica often returned to foster care unbathed and
once with soiled underwear. On another
occasion, Heather left Monica alone inside a Kwik Trip. And, at still another visit,
Heather’s social worker found Heather screaming at the top of her lungs with
her fists in Monica’s face. The next day Heather cancelled her visit
because she was afraid that “if she got angry with Monica, she didn’t know what
she would do.” Heather’s mom testified to Heather
screaming at Monica and Monica flinching when Heather moved towards her. Eventually,
Monica asked to not see Heather because she “hurts her.”
¶5 Monica started displaying behavioral problems, including violence. The social worker saw Monica “kicking, biting, hitting, intentionally urinating on her foster sister’s bed, dragging other children at daycare by their ankles across gravel, dancing provocatively, describing her ‘booty,’ and showing her teachers her ‘nipples.’
¶6 After fifteen months in foster care, the Department filed to terminate Heather’s parental rights. See 42 U.S.C. § 675(5)(E) (2006); see also Wis. Stat. § 48.417(1)(a). The jury heard evidence about Heather’s likelihood of meeting the CHIPS conditions for Monica’s return. This evidence included testimony of past physical discipline. After the jury found that grounds existed to terminate her parental rights, the court’s disposition was to terminate. Subsequently, Heather moved for post-dispositional relief, mainly faulting her trial counsel for not objecting to the physical discipline evidence. After noting the prerequisites for an ineffective assistance of counsel claim, the circuit court denied her motion because any unfair prejudice did not reach the constitutional standard of undermining the outcome. Heather now appeals.
¶7 Heather alleges numerous different incidents of ineffective assistance of counsel that we will address in five categories. She asserts that her trial counsel failed to: (1) object to evidence of past physical discipline; (2) request a jury instruction on the use of reasonable physical discipline, (3) object to hearsay testimony; (4) object to the Department’s closing statement arguing for Monica’s need of protection; and (5) object to the Department’s claim that it must seek permanence because Monica had been out of Heather’s home for fifteen out of twenty-two months. Finally, Heather alleges that justice requires a new trial.
¶8 Among the elements that the Department must prove by clear
and convincing evidence to terminate parental rights was that the parent failed
to meet or is unlikely to meet the conditions for return within twelve months
of the CHIPS hearing.[2] See
¶9 For an ineffective assistance argument to pass muster, the appellant
must prove that trial counsel’s performance was deficient and that the deficiency
undermined the case’s outcome. The
appellant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466
¶10 Heather’s overarching argument is that her trial counsel failed to exclude evidence of prior physical discipline. Heather argues that evidence of physical discipline is irrelevant because the CHIPS conditions do not prohibit physical discipline. And, the only jury question was whether Heather met those conditions. She relies on Bittner v. American Honda Motor Co., 194 Wis. 2d 122, 154, 533 N.W.2d 476 (1995), a tort and products liability case, for the holding that evidence of prior acts is unfairly prejudicial when it causes the jury to base its decision on something other than the issues in the case. So, she goes on, this evidence rendered the proceeding unreliable because it focused the jury away from the conditions and on whether Heather was a “bad person.”
¶11 Bittner, and more precisely, the rationale in Bittner,
is inapplicable here. Unlike torts and
product liability cases, prior acts in TPR cases may well “illuminate the
reasons why the parent is unable or unwilling to … adequately care for the
child in the future,” not that the parent is a “bad person.” State v.
¶12 As we stated earlier, the jury did indeed hear about past
physical discipline of Monica by Heather and others. It also heard about Heather’s physical
discipline of another child. Heather’s
social worker testified to her recommendation that Heather not use physical discipline
after Heather described how she “smacked” the back of Monica’s head. The social worker recommended this after
observing Monica herself acting out physically towards other people.
¶13 All of this above testimony was relevant for the jury to
determine whether Heather would likely meet the CHIPS condition at issue—that
of providing for Monica’s physical and emotional needs by following her social
worker’s recommendations. One of the
social worker’s recommendations was to not use physical discipline. Obviously, evidence of physical discipline is
relevant to whether Heather followed her social worker’s recommendations. Further, the evidence showed why and what
sort of physical and emotional needs Monica had, and why Heather was unlikely
to meet them. And as the trial court
noted, the evidence demonstrates four relevant traits: (1) how Heather reacts to children in stressful
situations, (2) whether Heather exercises good judgment in choosing her
relationships, (3) whom she exposes to Monica, and (4) whom she allows to care
for Monica. So, the jury must know
whether Heather’s household and relationships are safe, to determine if she is
likely to meet Monica’s needs. Thus, Heather
has not convinced this court that counsel’s failure to object to evidence of
past child discipline is in any way deficient.
¶14 Heather next argues, that assuming the physical discipline evidence was admissible, counsel should have at least requested a reasonable force jury instruction as a defense. The jury instruction would be similar to the optional instruction on child abuse by physical injury, Wis JI—Children 215, stating that reasonable discipline, as necessary, is permissible so long as it is not intended to cause great bodily harm or death. It would also use a privilege found in the criminal code to define “reasonable.” See Wis. Stat. § 939.45.
¶15 Initially, we note that ineffective assistance of counsel
claims are limited to situations where the law or duty is clear such that
reasonable counsel should know enough to raise the issue.” State v. McMahon, 186
¶16 Third, Heather alleges the jury heard over two dozen hearsay statements about Heather’s use of physical discipline and Heather’s boyfriend’s gun. We agree with the trial court that these statements were either admissible under the hearsay exceptions or were harmless error. We need not decide which specific statements Heather’s counsel should have objected to because under the totality of circumstances these statements were harmless.
¶17 Fourth, Heather alleges that her counsel should have objected to the Department’s closing statement arguing for Monica’s need of protection. The Department’s closing statement included comments that the trial’s focus was on Monica’s needs and that Heather did not provide for those needs. Heather believes these comments improperly focused on the best interests of the child instead of Heather’s parental rights.
¶18 In 1997, the policy and law of termination of parental rights
shifted away from maintaining intact families to child health and safety. See 1997
¶19 As the trial court noted, Heather failed to read these comments in context with the Department’s entire closing statement. Before making those comments, the Department’s addressed whether Heather met the CHIPS conditions. The Department did not speak about Monica’s needs until after it discussed that the jury must answer whether Heather met the CHIPS conditions.
¶20 For that question, the jury must consider Monica’s needs. The issue is whether Heather met Monica’s needs. To answer this, the jury had to consider what Monica’s needs are. Indeed, the focus of Heather’s compliance centered on whether Heather’s home could meet Monica’s needs. So, Heather’s counsel did not err in failing to object to the Department’s closing statement.
¶21 Fifth, Heather argues that her counsel was deficient by not objecting to testimony that the Children’s Code requires the Department to seek permanency because Monica was out of her home for at least 15 of the prior 22 months. Heather argues that this requirement is discretionary if the child’s permanency plan and documentation shows that termination would not be in the child’s best interest. See Wis. Stat. § 48.417(2)(b).
¶22 This argument is meritless simply because Monica’s permanency plan and documentation did not show that termination was not in her best interest.
¶23 Finally, we dismiss Heather’s request for a new trial in the
interest of justice. The trial court
denied Heather’s post-dispositional motion for a new trial in the interest of
justice because additional admissible evidence mitigated any unfair prejudice,
and Heather failed to comply with other CHIPS conditions. We will not reverse the circuit court’s denial
of a new trial in the interest of justice unless the decision is erroneous. Suhaysik
v. Milwaukee Cheese Co.,
132
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This
appeal is decided by one judge pursuant to
[2] When
the Department filed this termination, the time period for the likelihood of
the parent meeting the conditions for the safe return of the child was twelve
months. In 2006, the Wisconsin
Legislature shortened this period to nine months. 2005