COURT OF
APPEALS DECISION DATED AND
RELEASED January
11, 1996 |
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. |
Nos. 95-2967
95-2968
95-2969
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
No. 95-2967
IN THE
INTEREST OF ALYCIA V. M. E.
a
person under the age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
ANGEL
E.,
Respondent-Appellant,
DAVID
E.,
Respondent.
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No. 95-2968
IN THE
INTEREST OF DYLAN J. D. E.
a
person under the age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
ANGEL
E.,
Respondent-Appellant,
DAVID
E.,
Respondent.
------------------------------------------------------------------------------------------
No. 95-2969
IN THE
INTEREST OF DESTINIE S. L. E.
a
person under the age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
ANGEL
E.,
Respondent-Appellant,
DAVID
E.,
Respondent.
APPEALS
from an order of the circuit court for La Crosse
County: MICHAEL J. MULROY, Judge.
Reversed and cause remanded with directions.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(e), Stats.[1] Angel E. appeals from an order terminating
her parental rights to her children, Alycia, Dylan and Destinie. The termination followed a trial in which a
jury determined that grounds existed for termination based upon continuing need
of protection or services under § 48.415(2), Stats.[2] Angel presents the following issues on
appeal: (1) whether her due process
rights were violated because she was inadequately warned of the grounds upon
which her parental rights could be terminated; and (2) whether § 48.415(2)(c)
is unconstitutional. We conclude that
Angel was denied due process because she received inadequate warnings. We decline, however, to address the
constitutionality of § 48.415(2)(c) because Angel has raised that challenge for
the first time on appeal.[3] Accordingly, we reverse and remand for a new
trial.
BACKGROUND
Angel
is the mother of three minor children, Alycia, Dylan and Destinie. A dispositional order finding Alycia in need
of protection and services was entered in September 1991. That order was extended in September 1992,
September 1993, and in October 1994.
Dispositional orders finding Dylan and Destinie in need of protection
and services were entered in August 1993.
Those orders were extended in August 1994.
When
the trial court entered the 1991, 1992 and 1993 dispositional orders or
extensions, it warned Angel of the grounds for terminating her parental rights
as the law existed before the legislature amended § 48.415(2)(c), Stats.,[4]
in 1993. Pursuant to the former
statute, the court gave Angel the following warning:
The parents are hereby notified that grounds
may exist for the termination of their parental rights to the child if the
child remains outside the home pursuant to this order and any subsequent
orders;
A. And the parents fail to visit or
communicate with the child for a period of six months or longer; or
B. For
a cumulative total period of one year or longer, if the parents substantially
neglect, willfully refuse, or are unable to meet the conditions established for
the return of the child to the home, if there is a substantial likelihood that
the parents will not meet these conditions in the future, and if the agency
responsible for the care of the child and the family has made a diligent effort
to provide the services ordered by the court.
The
August and October 1994 extensions, however, were entered after the legislature
amended § 48.415(2)(c), Stats. Pursuant to this amendment, the trial court
warned Angel that grounds for termination may exist if she "failed to
demonstrate substantial progress toward meeting the conditions established for
the return of the child[ren] to the home and there is a substantial likelihood
that [she] will not meet these condition within the 12-month period following
the termination of parental rights (TPR) fact-finding hearing."
In
December 1994, La Crosse County filed petitions to terminate Angel's parental
rights to Alycia, Dylan and Destinie, alleging that the children were abandoned
and in continuing need of protection or services. A two-day trial was held in which much of the testimony pertained
to Angel's behavior before she was warned of the new grounds for termination. The jury was instructed to determine if
grounds for termination existed under the amended statute and found that the
children were in continuing need of protection and services. At a later hearing, the trial court accepted
the jury's verdict, found Angel to be unfit, and concluded that termination was
in the best interest of the children.
Angel appeals.
DUE
PROCESS
As
an initial matter, the guardian ad litem argues that Angel waived her right to
review because Angel did not object to the jury instructions at trial. See State v. Schumacher,
144 Wis.2d 388, 408 n.14, 424 N.W.2d 672, 680 (1988) (court of appeals lacks
the power to review errors when a party fails to object at trial). But Angel did object to the jury instruction
when she offered alternative instructions for the grounds for terminating her
parental rights. Implicit in a request
for one instruction is an objection to a differing one. Consequently, we conclude that she did not
waive her right to have this issue reviewed.
Turning
to the merits of the appeal, whether Angel was denied due process is controlled
by In re Jason P.S., 195 Wis.2d 855, 537 N.W.2d 47 (Ct. App.
1995). There, we held that a person is
deprived of parental rights without due process of law when the parent is
warned that such rights could be terminated on the grounds stated in
§ 48.415(2)(c), Stats.,
before its 1993 amendment, but whose rights are terminated on the grounds
provided in the new § 48.415(2)(c).
Under
§ 48.356, Stats., a trial
court has a duty to warn a parent of any grounds for termination of parental
rights. The purpose of the court's duty
to warn is to give a parent every possible opportunity to remedy the situation. In re Jeremiah A., 194 Wis.2d
628, 645, 534 N.W.2d 907, 913 (Ct. App. 1995).
This is so because:
the
power of the state to terminate the parental relationship is an awesome one,
which can only be exercised under proved facts and procedures which assure that
the power is justly exercised. The parental right is accorded paramountcy in
most circumstances and must be considered in that light until there has been an
appropriate judicial proceeding demonstrating that the state's power may be
exercised to terminate that right.
It is apparent
that the Wisconsin legislature has recognized the importance of parental rights
by setting up a panoply of substantive rights and procedures to assure that the
parental rights will not be terminated precipitously, arbitrarily, or
capriciously, but only after a deliberative, well considered, fact-finding
process utilizing all the protections afforded by the statutes unless there is
a specific, knowledgeable, and voluntary waiver.
In re M.A.M., 116 Wis.2d 432, 436-37, 342 N.W.2d 410, 412-13 (1984) (footnote
omitted).
In
Jason, we noted that the 1993 amendment to § 48.415(2)(c), Stats., changed the type of conduct for
which termination could proceed. Under
the old statute, a parent faced termination for culpable conduct or for his or
her inability to meet the conditions established for the return of the children
to the home. Under the amended statute,
a parent faces termination if he or she fails to demonstrate substantial
progress toward meeting the conditions established for the children's
return. The amendment eliminates the
reasons why a parent has failed to make substantial progress. This change in § 48.415(2)(c) is not
merely one of degree, "[i]t is a change in quality of the very nature of
the acts leading to termination." Jason,
195 Wis.2d at 864, 537 N.W.2d at 50. As
we said in Jason:
The change in the
type of conduct for which termination is possible changes the burden on the
State. The ground 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.
Id. at 864, 537 N.W.2d at 51.
When
the State warns a parent that his or her parental rights may be terminated
because of the parent's future conduct, if the State substantially changes the
type of conduct that may lead to the loss of rights without notice to the
parent, the State applies a fundamentally unfair procedure. Jason, 195 Wis.2d at 863, 537
N.W.2d at 50. Angel's trial was held
under the amended statute. Thus, the
issue was whether Angel had failed to demonstrate substantial progress toward
meeting the conditions established for the return of the children to her home
and whether there was a substantial likelihood that she would not meet these
conditions within the twelve-month period following the trial. But much of the evidence presented at trial
pertained to Angel's behavior before she was warned of the change in the
law. At that time, however, all she
knew was that termination could proceed if she acted culpably or was unable to
meet the conditions established for the return of the children to her
home. Had she been differently warned,
Angel might have acted more cautiously, knowing it is now easier for the State
to terminate her parental rights.
Consequently, we conclude that Angel, like the parent in Jason,
was deprived of her parental rights without due process of law.
But
the guardian ad litem urges us to conclude that this error was harmless because
no reasonable possibility exists that the differing statutory language
contributed to the termination of Angel's parental rights. She points to evidence presented at trial
showing Angel's failure to demonstrate substantial progress toward meeting the
conditions for the return of the children.
She contends that the jury could have concluded from the evidence and,
in particular, Angel's own admissions, that Angel substantially neglected,
wilfully refused or was unable to meet the conditions for the return of the
children to her home.
An
error is harmless if there is no reasonable possibility that it contributed to
the verdict. State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Because of the fundamental right involved, we are not confident
that a jury, properly instructed, would find grounds for termination on the
evidence presented at trial.
Lastly,
the guardian ad litem argues that if we reverse the order, we should remand for
a new trial based upon § 48.415(2)(c), Stats.,
before it was amended. She argues that
such a remedy would be in the best interests of the minor children as it would
allow the matter to proceed to a new trial as quickly as possible. Angel also argues that if we reverse, a new trial
should be held based upon the former statute.
The
evil pointed out in Jason is that when a parent is warned of the
grounds for termination under the statute before it was amended and the
termination trial proceeds are under the amended statute, the parent is denied
due process. Considering only the
arguments briefed by the two parties, we see no reason why a new trial under
the statute as it existed before it was amended may not be held. Accordingly, we reverse and remand for a new
trial.
By
the Court.—Order reversed and
cause remanded with directions.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.
[1] This appeal has been expedited. Rule
809.107(6)(e), Stats. We consolidated this appeal by order dated
November 24, 1995.
[2] Section 48.415(2), Stats., provides:
Continuing need of
protection or services may be established by a showing of all of the following:
(a) That
the child has been adjudged to be 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 ....
(b) That
the agency responsible for the care of the child and the family has made a
diligent effort to provide the services ordered by the court.
(c) That
the child has been outside the home for a cumulative total period of one year
or longer pursuant to such orders ... and that the parent has failed to
demonstrate substantial progress toward meeting the conditions established for
the return of the child to the home and there is a substantial likelihood that
the parent will not meet these conditions within the 12-month period following
the fact-finding hearing under s. 48.424.