COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
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.
95-2223
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE INTEREST OF KANE R.S.,
A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
WILLIAM R.S.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MC ALPINE, Judge. Reversed
and cause remanded.
GARTZKE, P.J. William R.S., the father of Kane R.S., born
March 25, 1982, appeals from an order terminating his parental rights.[1] William raises three issues: (1) whether he was deprived of due process
when his parental rights were terminated under a different version of
§ 48.415, Stats., rather
than the prior version under which he was warned of the grounds for
termination; (2) whether the verdict should have separated the question
regarding continuing need of protection or services as between William and the
child's mother; and (3) whether he was denied effective assistance of counsel.[2]
We conclude that William
has no right to appellate review on the first and second issues, but
§ 752.35, Stats., empowers
this court to grant a new trial because the real controversy was not
tried. We order a new trial on that
ground, limited to whether William's conduct meets the criteria under
§ 48.415, Stats., before its
amendment. Because of our disposition,
we do not reach the issues regarding the form of the verdict and effective
assistance of counsel.
The jury instructions
were based on new § 48.415(2)(c), Stats. William did not object. The court of appeals lacks the power to
review unobjected-to error in the instructions, except to determine whether the
party seeking review has had effective assistance of counsel, State v.
Schumacher, 144 Wis.2d 388, 408 n.14, 424 N.W.2d 672, 680 (1988), and
except to exercise our discretion to order a new trial under § 752.35, Stats.
Vollmer v. Luety, 156 Wis.2d 1, 17, 456 N.W.2d 797, 805
(1990).
In In re Interest
of Jason P.S., No. 95-1164 (Wis. Ct. App. July 13, 1995), we held
that a person had been deprived of his or her parental rights without due
process when the parent was warned that his or her rights could be terminated
on the grounds stated in § 48.415(2)(c), Stats.,
before its 1993 amendment, but whose rights were terminated on the changed
grounds provided in new § 48.415(2)(c).
Because it was
constitutional error to terminate the parental rights of William on the basis
of instructions to the jury applying the grounds of new § 48.415(2)(c), Stats., we may decide whether the
unobjected-to-error resulted in the real controversy not being tried, a ground
for our ordering a new trial under § 752.35, Stats.
The unobjected-to
instructional error resulted in the real controversy not being tried. The controversy presented to the jury was
whether William failed to demonstrate substantial progress toward meeting the
conditions established for the return of Kane to the home and whether there is
a substantial likelihood that he will not meet those conditions, the grounds
for termination in new § 48.415(2)(c), Stats. The real controversy was whether William has
substantially neglected, wilfully refused or been unable to meet the conditions
established for the return of the child to the home and there is a substantial
likelihood that he will not meet those conditions in the future, the grounds
for termination in § 48.415(2)(c) before its amendment in May 1994, and
the grounds for termination contained in the warning to him. If, as here, the jury instructions
"arguably caused the real controversy not to be tried, reversal would be
available in the discretion of the court of appeals under § 752.35, Stats." Vollmer, 156 Wis.2d at 22, 456 N.W.2d at 807.
The guardian ad litem
for Kane contends that the error was harmless because no reasonable possibility
exists that it contributed to the termination of William's rights, citing In
re D.S.P., 157 Wis.2d 106, 114, 458 N.W.2d 823, 827 (Ct. App. 1990), aff'd
166 Wis.2d 464, 480 N.W.2d 234 (1992).
We are told that evidence produced at the trial established William had
"a pattern of failing to follow through" which is
so
pronounced and so consistent that it demonstrates an inability on William's
part to comply with the conditions of the CHIPS extension order. This inability is grounded in his
psychological makeup. Due to his
self-centeredness, he is unable to work with therapists and counselors to
change his behavior. The evidence in
the record regarding William's inability to meet the conditions in the CHIPS
extension order is both overwhelming and uncontradicted.
Brief
of Guardian ad Litem, 14-19.
Secondly, the guardian
ad litem argues the record contains substantial evidence of William's wilful
refusal to meet the conditions for the return of the child, in that after Kane
had been placed outside his home, William engaged in criminal acts and domestic
violence involving his girlfriend, which should count as wilful refusals to
meet the conditions in the extension order.
We conclude we should
direct a new trial. The State's power
to take away parental rights is awesome and must be exercised with great
care. As we said in Jason P.S.,
No. 95-1164, slip op. at 9 (Wis. Ct. App. July 13, 1995, ordered published Aug.
29, 1995),
The
ground [for termination] under the new law is far easier to establish than the
grounds under the old law. Under the
new law, the ground for termination is purely objective: whether there has been a lack of substantial
progress. Under the old law, the
grounds are more stringent and are partly subjective.
The
test for harmless error is whether no reasonable possibility exists that the
error contributed to the verdict. State
v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). We do not share the confidence of the
guardian ad litem that a second jury, properly instructed under the old law,
would find grounds for termination on the same evidence presented to the first
jury. For that reason, we order a
partial new trial under § 752.35, Stats.
By the Court.—Order
reversed and remanded for a partial new trial.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.