COURT OF APPEALS
DECISION
DATED AND FILED
August 29, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
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.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
In
the Interest of Joseph C.B.,
a
person Under the Age of 18:
State
of Wisconsin,
Petitioner-Respondent,
v.
Angela
J.,
Respondent-Appellant.
APPEAL from an order of the circuit court for Brown County: richard j. dietz, Judge. Affirmed.
¶1 HOOVER, P.J.[1] Angela J.
appeals the termination of her parental rights to her son, Joseph C.B.[2] She contends that the trial court erred by
upholding the jury verdict when there was evidence of inappropriate conduct by
the jurors and the evidence did not support the jury’s findings. Angela also asserts that the court
erroneously exercised its discretion by, among other things, failing to
consider the substantial relationship between Joseph and Angela and between
Joseph and his sister. The order is
affirmed.
BACKGROUND
¶2 Joseph
was born to Angela on October 29, 1996.
On December 7, 1999, after a two-day jury trial, the court terminated
Angela’s rights to Joseph. The jury
found that (1) the child was in need of protection or services under Wis. Stat. § 48.415(2); and (2)
Angela had failed to assume parental responsibility pursuant to § 48.415(6).
¶3 In
December 1997, a CHIPS[3]
order had been entered outlining conditions for Angela to meet. The court had imposed five conditions for
Joseph’s return to Angela’s care. The
first required Angela to complete an AODA program and to follow the recommended
post-program treatment. The second
required her to stay completely sober during the term of the CHIPS order and
for at least six months before Joseph’s return. The third condition required Angela to complete a parenting class
and to demonstrate appropriate parenting techniques. The fourth required Angela to demonstrate financial stability by
being gainfully employed and securing appropriate housing for Joseph for at
least three months before his return.
The fifth condition required Angela to cooperate with Joseph’s foster
care placement and with the visitation schedule.
¶4 Although
Angela completed the AODA program, she testified that she had relapsed to drug
and alcohol use in April and August of 1998 and April and June of 1999. She completed a parenting program; however,
she used alcohol and illicit drugs while Joseph was in her care. She testified that she maintained an
apartment for the time required and was working, with some breaks between jobs,
from April 1998 until June 1999, when she was incarcerated. The State did not refute this
testimony. The State asserts that
Angela’s relapses prevent her from properly supervising Joseph, not that she
failed to cooperate with the placement and visitation.
¶5 The
CHIPS order additionally imposed four general conditions for its duration. It ordered Angela to (1) comply with all
conditions of her probation and not violate the law; (2) follow through on all
recommendations for Joseph’s medical and dental treatment and appointments upon
his return to her; (3) enroll in intensive in-home counseling, complete
programming, and follow all recommendations; and (4) cooperate with the
department.
¶6 Angela
concedes that she violated the first general condition when she relapsed to
using illicit drugs and alcohol.
Because Joseph was not returned to her, the second condition was
inapplicable. The third general
condition was satisfied because Angela participated in counseling and
successfully completed an AODA program in February 1999. Angela testified that although she requested
non-AODA counseling, she did not receive it.
Because she cooperated with the department, the fourth general condition
was also satisfied.
¶7 The
December 1997 CHIPS order notified Angela of the conditions under which her
parental rights could be terminated.
These include when a child is in continuing need of protection or
services as defined in Wis. Stat. §
48.415(2)[4]
and when a parent fails to assume parental responsibility as set forth
in Wis. Stat. § 48.415(6).[5] Angela does not dispute that she was
notified of these conditions and understood them.
¶8 The
jury found that Angela failed to assume parental responsibility for
Joseph. The jury also independently
found that Joseph was a child in need of protection or services who had been
placed outside the home for a cumulative period of six months or longer
pursuant to a court order. The jury
found that the CHIPS order had notified Angela of the conditions that would
cause her parental rights to be terminated and that the department made
reasonable efforts to provide court-ordered services. The jury concluded that Angela failed to meet the court’s
conditions that would have allowed Joseph to return to her home and that Angela
was not substantially likely to meet the conditions within one year of the
trial.
¶9 After
the verdict, the jury foreperson wrote a letter to the court alleging that the
initial vote was in Angela’s favor, nine to three, on the question whether
Angela had a substantial relationship with Joseph. He stated that the reason for disagreement was distinguishing
between having a relationship and correctly performing parental duties. The foreperson believed the evidence showed
that Angela did have a relationship with Joseph. He asserted that the three jurors would not change their minds,
so he proposed a compromise that would have ten jurors vote in favor of Angela
lacking a relationship with Joseph and two dissenting. In the letter, the foreperson indicated his
belief that it was error for him to propose the compromise instead of
discussing it “until 10 persons could agree … or having a ‘hung’ jury on that
point ….” He next explained why he
dissented on several questions. He
asserted that the jury would have been better off had it had the CHIPS order to
review during deliberations, but he explained that the jury decided not to ask
for the order to avoid further delay.
¶10 After
considering the competence of the evidence in the letter, motions after verdict
and testimony at the disposition hearing, the court approved the jury’s
findings and entered an order terminating Angela’s parental rights to Joseph.
DISCUSSION
Jury Trial Issues
¶11 After
the jury trial, Angela moved for a mistrial and a judgment notwithstanding the
verdict. The trial court’s decision to
deny these motions was discretionary and will not be overturned absent an
erroneous exercise of discretion. See
Dostal v. Millers Nat’l Ins. Co., 137 Wis. 2d 242, 253,
404 N.W.2d 90 (Ct. App. 1987). The
court properly exercises its discretion if it bases its decision on reasonable
grounds and a proper legal foundation. See
id. This court will not set
aside the judgment or grant a new trial unless the error, if the trial court
erred, affected the substantial rights of the appellant. See Wis.
Stat. § 805.18(2). The
substantial rights of the appellant are not affected unless there is a
reasonable possibility that but for the error, the final result would have been
different. See Jones v. State,
226 Wis. 2d 565, 597, 594 N.W.2d 738
(1999).
The Foreperson’s Letter
¶12 Because
several arguments rest upon information provided by the foreperson, information
the court did not admit, we address this evidentiary issue first. Angela claims that the letter shows that the
jury was concerned more with the length of the deliberations than the quality
of the verdict. She concludes that this
is an improper consideration that tainted the jury’s verdict. She does not argue that the foreperson
should have been called as a witness to allow for cross-examination. Rather, she appears to argue that the
foreperson’s letter should have been admitted into evidence. Because the letter impermissibly discloses
matters during the course of the jury’s deliberations, it cannot serve as the
basis for relief. This court therefore
rejects Angela’s argument.
¶13 Wisconsin Stat. § 906.06(2) provides
that jurors are incompetent to testify
as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the juror’s or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.
There is an exception, however: “[A] juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Id. Extraneous prejudicial information includes information, other than the general knowledge a juror is expected to possess, which a juror obtains from a non-evidentiary source and brings to the jury’s attention. See State v. Eison, 194 Wis. 2d 160, 174, 533 N.W.2d 738 (1995). In Eison, the court found extraneous information was presented to the jury when a juror brought two wrenches, not admitted into evidence, into deliberations in order to mimic the metal on the gun allegedly used in the case. See id. at 170. In State v. Yang, 196 Wis. 2d 359, 364-65, 538 N.W.2d 817 (Ct. App. 1995), a juror asked the police officer who testified in the case how the department handles cases where an interpreter is needed and presented that information to the jury during deliberations. That information was not presented as evidence at trial. See id. at 367. The court found that extraneous information had infected the jury’s deliberations. See id.
¶14 After
examining the foreperson’s letter, this court concludes that the trial court
did not err by disregarding the letter.
No extraneous evidence was introduced to the jury as in the examples
noted above. The compromise discussed
in the juror’s letter is a matter that occurred during deliberations and
reflects the jury’s mental process. It
therefore is not competent evidence under Wis.
Stat. § 906.02(2).[6] Even if it were competent evidence, the vote
only affected one independent ground for terminating parental rights. The jury also determined that Joseph was a child
in need of protection or services and that Angela was not substantially likely
to meet the conditions required by the CHIPS order within one year of the
fact-finding hearing. Therefore, the
compromise vote on whether Angela had a substantial relationship with Joseph
would not warrant reversal of the court’s final determination terminating
parental rights. See Wis. Stat. § 805.18(2).
Sufficiency of the Evidence
A. No Credible
Evidence
¶15 Angela
claims that the verdict should be overturned because it is not supported by
credible evidence and that substantial evidence supports a different
verdict. See Fehring v.
Republic Ins. Co., 118 Wis. 2d 299, 305, 347 N.W.2d 595 (1984), overruled
on other grounds by DeChant v. Monarch Life Ins. Co., 200
Wis. 2d 559, 576, 547 N.W.2d 592 (1996).
¶16 This
court will uphold a jury verdict if there is any credible evidence to support
it. See Fehring,
118 Wis. 2d at 305. This court does
not review the record for evidence that supports a verdict that the jury did
not reach. See Morden v.
Continental AG, 2000 WI 51, ¶39, 235
Wis. 2d 325, 611 N.W.2d 659. Joseph had
been removed from his parents’ home when he was less than a year old. His out-of-home placement continued, such
that he had lived away from his parents more than with them. Angela had repeatedly used illicit drugs and
alcohol while she was attempting to regain custody. She had even used a controlled substance while Joseph was in her
care. This evidence supports the jury’s
finding that she failed to assume parental responsibility.
¶17 Joseph
had been the subject of a CHIPS order from November 25, 1997, until the
fact-finding hearing on November 11, 1999.
Angela admitted that she had not met the conditions of the CHIPS
order. The conditions required her to
hold employment and to secure housing appropriate for a child for at least
three months before Joseph’s return. Several employees testified that the
department had provided counseling and parenting classes and helped Angela
obtain money for an apartment security deposit. Nonetheless, at the time of the trial, she was serving a four-year
sentence with four months served and three months credited. The evidence supported the jury’s finding
that Joseph continued to be in need of protection or services.
¶18 Joseph
had been placed outside his parents’ home for a cumulative period of more than
six months. The evidence demonstrated
that the department made reasonable efforts to provide the court-ordered
services. Because of her past behavior
pattern and her prison sentence, the jury was entitled to find that Angela was
substantially unlikely to meet the CHIPS order conditions within one year of
the fact-finding hearing.[7]
B. Perverse
Verdict
¶19 Angela
contends that the verdict was perverse, clearly contrary to the evidence, and
should have been disregarded. See Dostal,
137 Wis. 2d at 254. She contends
that the evidence showed that she had completed most of the CHIPS conditions
and that she would likely complete the rest of them within a year. Further, she asserts that the verdict was
inconsistent because the jury found that Joseph’s father had established a
substantial relationship with Joseph, while Angela had not.[8] This is inconsistent, she asserts, because
Joseph’s father had been incarcerated longer than she had and therefore had
spent less time with Joseph. She
further contends that the verdict was also perverse because the jury members
improperly rushed through deliberations and failed to request additional
information when they believed it would help them, as evidenced by the
foreperson’s letter.
¶20 A
verdict is perverse if it “reflects highly emotional, inflammatory or
immaterial considerations, or an obvious prejudgment with no attempt to be
fair.” Id. In Dostal, a dog bite
case, defense counsel made repeated references that the plaintiff’s
parents were more concerned with recovering money than they were with their
son’s injuries. See id.
at 254. Further, defense counsel had
emphasized that the plaintiff’s father had shot to death a family watchdog
“because the animal had become ‘too friendly.’” Id. at 255.
Consequently, the court concluded that the jury had been prejudiced
and that the verdict was perverse. See
id.
¶21 This
case involves no similar inflammatory, emotional or immaterial considerations
or obvious prejudgment. Further, for
the reasons stated above, the foreperson’s letter is inadmissible. This court cannot, therefore, consider
whether the jury was influenced by what Angela perceives as its desire to
conclude deliberations. As discussed
above, the jury based its conclusions upon substantial evidence. The jury
verdict was not perverse. The trial
court properly exercised its discretion by approving the jury verdict.
C. New Trial in the Interest of Justice
¶22 In
addition, Angela contends that the trial court should have granted a new trial
in the interest of justice because the jury findings are against the great
weight and clear preponderance of the evidence, even if the findings are
supported by credible evidence. See Sievert
v. American Family Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 75
(Ct. App. 1993). Angela argues that she
was close to completing her conditions.
She had learned lessons from each relapse that would help her stay away
from drugs and alcohol in the future.
Angela testified that she was eligible for parole in March 2000 and, if
released, would still have had seven months from the date of the fact-finding
hearing to satisfy the conditions. She
notes that the evidence demonstrated that she had established a substantial
relationship with Joseph. Finally,
because of the nature of parental rights, Angela contends that this court
should weigh the foreperson’s letter heavily when considering whether the
verdict was proper. This court is not
persuaded.
¶23 The
trial court may order a new trial in the interest of justice when the jury
findings are against the great weight and clear preponderance of the evidence,
even though the findings are supported by credible evidence. See id. The trial court is in the best position
to observe and evaluate the evidence. See
id. An appellate
court will only disturb that decision if the trial court has clearly abused its
discretion. See id. As discussed above, the trial court
reasonably concluded that the jury had based its verdict on substantial
evidence. For the reasons that follow,
we conclude that the trial court reasonably applied the proper legal standard
to the facts when it upheld the jury’s verdict and denied the motion for a new
trial.
Dispositional
Hearing Issues
¶24 Angela
claims that the trial court erred by failing to properly exercise its
discretion at the dispositional hearing held pursuant to Wis. Stat. § 48.427. She concedes that the court addressed the
statutory factors for terminating parental rights. She asserts, however, that the court ignored the evidence of her
substantial relationship with Joseph and, further, failed to recognize that
Joseph’s relationship with his sister would be legally severed. She also contends that the court’s decision
fails to provide Joseph with more stability than he had with Angela.
¶25 The
trial court judge has discretion to terminate parental rights. See In re Michael I.O., 203
Wis. 2d 148, 152, 551 N.W.2d 855 (Ct. App. 1996). An appellate court will sustain the trial court’s
determination if it properly exercises its discretion. See In re Brandon S.S., 179
Wis. 2d 114, 150, 507 N.W.2d 94 (1993).
A circuit court properly
exercises discretion when it applies the correct standard of law to the facts
at hand. See In re Nadia S.,
219 Wis. 2d 296, 305, 581 N.W.2d 182 (1998).
¶26 The
circuit court must apply the standard and factors set forth in Wis. Stat. § 48.426 when
determining the disposition after a fact-finding hearing for parental rights
termination. The best interests of the
child are paramount. See Wis. Stat. § 48.426(2). The best interests of the child are
determined by examining, among other things, the likelihood of the child’s
adoption after termination, the child’s age and health, whether the child has
substantial relationships with the parent or other family members and if it
would be harmful to sever those relationships, the wishes of the child, how
long the child has been separated from the parent, and whether a new
environment will provide a more stable and permanent family relationship. See Wis.
Stat. § 48.426(3).
¶27 The
trial court applied the best interests standard and the above factors in
reaching its decision. The court
informed Angela that when the interests of the child and of the parent diverge,
then the court must set aside the parent’s interests. The court explained that Angela’s parental rights were not being
suspended merely because she was incarcerated.
The court found that the reports supported that Joseph was adoptable in
the event the court terminated Angela’s parental rights. He was healthy and about three years old at
the time of the fact-finding hearing.
He was removed from his father’s home on October 14, 1997. Angela was staying at a treatment home at
that time. Joseph had been out of the
home approximately two of his three years.
Given the substantial time that he had been removed from the home and
the credibility and demeanor of the witnesses, the court found that terminating
parental rights would not be harmful to Joseph. Finally, as discussed above, substantial evidence supported the
jury’s verdict that Angela did not have a substantial relationship with
Joseph.
¶28 Angela
challenged these findings for two reasons.
First, the court failed to consider the legal severance of Joseph from
his sister. A recent Wisconsin Supreme
Court case discusses relationships with siblings. See In re Darryl T.-H., 2000 WI 42, 234 Wis.
2d 606, 610 N.W.2d 475. The analysis of
Wis. Stat. § 48.426(3)(c),
however, does not turn on whether terminating parental rights severs a legal
relationship with the siblings. See
Darryl T.-H., 2000 WI 42 at ¶18. It turns on whether it severs emotional and
psychological connections to the child’s birth family. See id. at ¶19. No evidence shows that Joseph has a
substantial relationship with his sister; the jury did not make findings on
this issue.
¶29 Second,
Angela asserts that the court failed to recognize that relatives were not
definitely going to adopt Joseph. This
argument is without merit. Wisconsin Stat. § 48.426(3)(a) does not
require the court to determine whether a particular adoption is likely. Rather, the court must make a determination
whether the child is likely to be adopted following the termination of parental
rights. The court found that Joseph is
likely to be adopted and Angela presented no evidence to the contrary.
¶30 Angela argues that the court failed to exercise its discretion when it terminated her parental rights. The trial court has discretion to enter a jury verdict or set it aside if the evidence does not support it. See Wis. Stat. § 805.15(1). By entering the jury verdict and terminating parental rights, the court did exercise its discretion, albeit against Angela. Angela has not identified any reason that would convince this court that the trial court erroneously exercised its discretion when it evaluated Joseph’s best interests.
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). All statutory references are to the 1997-98 version.
[2] The trial court also terminated the parental rights of the child’s father, Richard B., Jr. Richard has not appealed the ruling, so the court omits discussion of his verdict.
[3] CHIPS is an acronym for “child in need of protection or services.” See Wis. Stat. § 48.415(2).
[4] Wisconsin Stat. § 48.415(2) provides:
Grounds for termination of parental rights shall be one of the following:
….
(2) Continuing need of protection or services … shall be established by proving any of the following:
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 [or] 48.365 … containing the notice required by s. 48.356 (2) .…
[2.]b. That the agency responsible for the care of the child and the family … has made a reasonable effort to provide the services ordered by the court.
….
3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders … and that the parent has failed to meet the conditions established for the safe 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.
[5] An additional ground for terminating parental rights is “[f]ailure to assume parental responsibility, which shall be established by proving that the parent … ha[s] never had a substantial parental relationship with the child.” Wis. Stat. § 48.415(6)(a).
[6] Because this court concludes that no extraneous evidence was presented to the jury during deliberations, it does not proceed to the next step in the analysis: determining whether that extraneous evidence potentially prejudiced the jury. See State v. Eison, 194 Wis. 2d 160, 172-73, 533 N.W.2d 738 (1995).
[7] Even though she may have been eligible for parole in March 2000, at the time of the trial the jurors would only have been able to speculate whether she would be released.
[8] This court presents Angela’s arguments as she made them. Angela included an inconsistency argument within her presentation of how the verdict was perverse.