COURT OF APPEALS DECISION DATED AND FILED November 11, 2009 David
R. Schanker 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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Appeal No. |
2009AP1952 |
2008TP25 2008TP26 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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In re the termination of parental rights to Deante R., Makayla R.,
and Kyleigh R., persons under the age of 18: Walworth County Department of Health & Human Services,
Petitioner-Appellant, v. Jeanna R. and
Respondents-Respondents. |
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APPEAL
from an order of the circuit court for
¶1 SNYDER, J.[1] Walworth County Department of Health and Human Services appeals from an order dismissing the termination of parental rights petitions filed against Jeanna R. and Houston R. The County contends that the circuit court erred when it dismissed the petitions during the case-in-chief because the court incorrectly concluded that the required TPR warnings had not been provided to the parents. It argues that remand for further proceedings is required due to missing transcripts and an improperly timed motion to dismiss. We disagree and affirm.
BACKGROUND
¶2 On August 14, 2008, the County filed petitions seeking to
terminate Jeanna’s and Houston’s parental rights to each of their four
children.[2] As grounds for termination, the County
alleged that
¶3 Events leading to the filing of the TPR petition are as follows. In May and June of 2006, the County received several reports that the children were not being supervised, with specific examples of neglect and one instance of documented abuse. On June 20, the children were taken into temporary physical custody and placed in foster care. On June 22, the County filed a CHIPS petition, alleging abuse to one of the children, the risk of abuse to the others, and neglect of all three.
¶4 On August 18, 2006, the circuit court adjudicated the children to be in continuing need of protection or services and ordered placement outside the home. The orders contained conditions for the return of the children, and included the required TPR warnings, which were signed by both Jeanna and Houston.
¶5 The dispositional orders were revised January 17, 2007.[3] The revised order changed the conditions of
return for
¶6 A subsequent revision, effective May 11, 2007, gave the County the discretion to allow or prevent contact between the children and extended family, and it barred contact between the extended families and foster homes because the foster homes reported they were receiving threats from the family. No TPR warnings were attached to this revision. Another revision was ordered in September 2007 and, again, no TPR warnings were attached. It is undisputed that the children were placed outside the home by the August 18, 2006 CHIPS adjudication and that each of the revised dispositional orders continued the placement outside the home.
¶7 The County filed the TPR petitions on August 14, 2008,
alleging that Jeanna and Houston had not met the conditions of return and that
there was a substantial likelihood that they would not meet them within the
nine-month period following the fact-finding hearing in the case. The case proceeded to a fact-finding hearing
before a jury on March 30, 2009. The
first step in a TPR proceeding is the fact-finding hearing to determine whether
grounds exist for termination. Evelyn
C.R. v. Tykila S., 2001 WI 110, ¶22, 246
¶8 On the second day of the hearing, Walworth County Clerk of Courts Sheila Reiff testified regarding the CHIPS history, the original dispositional order of August 2006, and the subsequent revised orders. She confirmed that the August 2006 order included the required TPR warnings, but that none of the subsequent revised orders had the warnings attached.
¶9 On the third day of trial,
DISCUSSION
¶10 The County presents three primary arguments, although it offers
one as a justification for not fully developing the others. The County asserts that it cannot adequately
advocate its position because of the missing trial transcript. It contends that the missing testimony is
needed to show the “purpose of the TPR warnings and the fact that
¶11 An appellant must demonstrate a “colorable need” for a complete
transcript, which means the missing portion, if available, would demonstrate a
reviewable error.
¶12 First, the County argues that the circuit court improperly heard and ruled on Houston’s motion to dismiss in the middle of the County’s case-in-chief. [5] Arguing that such a motion should have been made at least ten days prior to trial, the County directs us to Wis. Stat. § 48.297(2) for the proper motion procedure in a contested TPR:
Defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition, insufficiency of the petition or invalidity in whole or in part of the statute on which the petition is founded shall be raised not later than 10 days after the plea hearing or be deemed waived. Other motions capable of determination without trial may be brought any time before trial.
¶13 The parents respond by observing that the motion to dismiss
challenged the sufficiency of the evidence, a proper midtrial consideration. See
Wis. Stat. § 805.14.
¶14 We conclude that the circuit court properly considered the
motion to dismiss before the close of the County’s case. We reach this conclusion for three
reasons. First, although Wis. Stat. § 805.14 permits a
defendant to move for dismissal on the ground of insufficiency of the evidence
at the close of the petitioner’s evidence, it does not prohibit such a motion
earlier in the proceedings. Second, circuit
courts have inherent authority to make certain rulings, including the authority
to dismiss a case, in the orderly administration of justice. See
State
v. Braunsdorf, 98
¶15 The County’s final argument is that the motion to dismiss was
wrongly decided. The test for granting a
motion to dismiss for insufficiency of the evidence is whether there is any
credible evidence to support a finding in favor of the petitioner when all the
credible evidence and reasonable inferences therefrom are considered in the
light most favorable to the petitioner. Christianson
v. Downs, 90
Duty of court to warn. (1) Whenever the court orders a child to be placed outside his or her home ... because the child ... has been adjudged to be in need of protection or services ... the court shall orally inform the parent or parents who appear in court ... of any grounds for termination of parental rights under [Wis. Stat. § 48.415] which may be applicable and of the conditions necessary for the child ... to be returned to the home ....
(2) In addition to the notice required under sub. (1), any written order which places a child ... outside the home ... shall notify the parent ... of the information specified under sub. (1).
Sec. 48.356(2) (emphasis added).
Grounds for involuntary termination of parental rights. At the fact-finding hearing the court or jury may make a finding that grounds exist for the termination of parental rights. Grounds for termination of parental rights shall be one of the following:
(1) Abandonment. (a) Abandonment … shall be
established by proving any of the following:
….
2. That the child has been placed, or continued in a placement, outside the parent’s home by a court order containing the notice required by s. 48.356(2) … and the parent has failed to visit or communicate with the child for a period of 3 months or longer.
….
(2) Continuing Need of Protection or Services. Continuing need of protection or services, which shall be established by proving any of the following:
(a) 1. That the child has been adjudged to be a child … in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, 48.365 ... containing the notice required by s. 48.356(2) ….
Sec. 48.415 (emphasis added).
¶16 Our supreme court has addressed the inconsistency between Wis. Stat. § 48.356(2), which
requires “any written order” to include TPR warnings, and the language in Wis. Stat. § 48.415(2), which
provides that “one or more court orders” for placement or continued placement
outside of the home on CHIPS grounds must contain the TPR warnings. See
Steven
H., 233
We agree
with the [D.F.R. v. Juneau County DSS, 147
Steven H., 233
¶17 The supreme court concluded that, while every order continuing
placement outside of the home will not trigger the Wis. Stat. § 48.356 duty to warn, “if the last order issued
at least six months before the filing of the petition involuntarily terminating
parental rights contains the written notice,” the petitioner has provided
adequate notice. Steven H., 233
[T]he statutory language says that warnings are to be attached on revisions that continue placement outside the home and it has to be the last order before filing termination of parental rights. There were no written warnings attached…. [T]he hearing was January 17th and the order was signed on January 18th and filed on January 22nd, that’s the order we’re talking about, doesn’t have the warnings. And it clearly says that the provisions of the dispositional order which placed the children outside the home remain in full force and effect and that sounds like continued in a placement outside the home.
There is no dispute that the last order issued did not contain the warnings. Even under the Steven H. court’s liberal interpretation of the statutory mandate, the County failed to provide the required TPR warnings to Jeanna and Houston. The circuit court properly dismissed the petitions for failure to warn regarding the CHIPS grounds for termination.[7]
By the Court.—Order 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 Wis. Stat. § 752.31(2)(e) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] A separate petition seeking termination against both parents was filed for each child. This appeal concerns the three oldest children only.
[3] This is the date of the hearing that led to the revised orders dated January 22, 2007. The parties employ both the hearing date and the signing date to refer to the revision. We will refer to the revised order as the January 22, 2007 order, and we understand the terms to be consistent across all three children’s files.
[4] The court reporter indicated that a box of notes was missing and the backup disk was defective.
[5] The County also asserts that, because jeopardy attaches when the jury is selected and sworn, see Wis. Stat. § 48.317, the legislature “did not intend for parents to bring dispositive motions in the middle of a court or jury trial.” Such motion practice, it argues, would “most certainly … delay proceedings, and defeat[] the general purpose of [Wis. Stat.] § 48.01[.]”[5] It asserts that the midtrial motion deprived the County of the ability to “avoid any double jeopardy issues.” The County fails to develop its double jeopardy argument and therefore we do not address it.
[6] The County argues that it should have had the opportunity to question the parents “to find out whether or not they were confused by the subsequent orders, whether they even read the subsequent orders, or if they spoke to caseworkers about the conditions.” There is no suggestion here that the County could have produced proof that the TPR warnings were attached to the revised orders. Thus, this is not a situation where the circuit court preempted the County’s opportunity to prove that TPR warnings were attached.
[7] The
County asserts that under Rock County DSS v. C.D.K., 162