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COURT OF APPEALS DECISION DATED AND FILED February 1, 2012 A. John Voelker Acting 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 from an order of the circuit court for Kenosha County: anthony g. milisauskas, Judge. Affirmed.
¶1 GUNDRUM, J.[1] Donald M. H. appeals from the termination of his parental rights on the grounds of abandonment and failure to assume parental responsibility. See Wis. Stat. § 48.415(1), (6). First, Donald claims the trial court erred when it did not submit jury instructions and two separate verdicts related to two separate alleged periods of abandonment. Second, Donald claims he was denied effective assistance of counsel when his trial counsel failed to request separate jury instructions and separate verdicts for each claim of abandonment, and when counsel failed to elicit testimony or introduce other evidence regarding specific activities Donald claims he did with his son, such as going fishing, to the zoo, and on nature hikes, which Donald believes would have shown he had a substantial parental relationship[2] with his son. Donald has waived his right to object to the jury instructions and verdict on abandonment and has not shown that his trial counsel’s performance was ineffective.[3] We affirm. Following a brief procedural history, we first address the jury instructions and verdict on abandonment; we then turn to the ineffective assistance of counsel claims.
¶2 The petition for
termination of parental rights filed by the mother of Donald’s son, Heather T.
C., alleged failure to assume parental responsibility and two periods of
abandonment as grounds for terminating Donald’s parental rights. The two alleged periods of abandonment were
from July 2000 to October 2001 and from April 2005 to June 2006. At trial, the trial court instructed the jury
on abandonment and failure to assume parental responsibility. The court submitted one verdict for abandonment
and one verdict for failure to assume parental responsibility. Donald’s trial counsel did not, at any time
prior to jury deliberations, object to the jury instructions related to
abandonment or to the submission of only one verdict on abandonment. The jury returned a unanimous verdict finding
that Donald had abandoned his son; it also returned a unanimous verdict finding
that Donald had failed to assume parental responsibility for his son. The trial court denied Donald’s motion
notwithstanding the verdict, held a dispositional hearing, and terminated
Donald’s parental rights. Donald filed a
motion to vacate the final order and for a new trial, alleging ineffective
assistance of counsel.[4] The trial court denied Donald’s motion.
¶3 To prove
abandonment, a petitioner must establish:
The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.
Wis. Stat. § 48.415(1)(a)3.
(emphasis added).[5] Even though each alleged period of
abandonment in this case well exceeded six months, Donald argues that, because
there were two separate alleged periods, and the jury was not afforded the
opportunity to consider and decide on a separate verdict for each period, the
jurors could have reached their unanimous verdict with less than five-sixths of
the jurors finding abandonment for any one period.
¶4 Given this possibility,
Donald claims the failure of the trial court to provide jury instructions and
two separate verdicts distinguishing the two separate periods of alleged
abandonment denied him his constitutional right to a verdict agreed upon by
five-sixths of the jurors.
¶5 Heather counters that
there is no legal requirement that, if more than one period of abandonment is
alleged, the fact finder must answer the abandonment question with regard to
each time period. She contends the law
merely requires the fact finder to find that the parent violated the relevant
provisions for a period of six months or longer, but that the fact finder need
not agree on a specific period of six months or longer.
¶6 Failure to object to
proposed jury instructions or verdicts at the instruction and verdict
conference constitutes waiver of any error in the instructions or
verdicts. Wis. Stat. § 805.13(3); State v. Cockrell, 2007 WI App 217,
¶36, 306 Wis. 2d 52, 741 N.W.2d 267; see
also Waukesha Cnty. Dep’t of Soc. Servs.
v. C.E.W, 124 Wis. 2d 47, 54, 368 N.W.2d 47 (1985). “The purpose of the rule [in § 805.13(3)] is
to afford the opposing party and the trial court an opportunity to correct the
error and to afford appellate review of the grounds for the objection.” Cockrell, 306 Wis. 2d at 73-74
(quoting Air Wis., Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301,
311, 296 N.W.2d 749 (1980)).
¶7 In this case, Donald
failed to object to the jury instructions or verdict on abandonment at the
instruction and verdict conference or at any time prior to submission of the
instructions and verdict to the jury. By
failing to object, Donald waived his opportunity to challenge the jury
instructions and verdict on abandonment.
¶8 We now turn to Donald’s
arguments alleging ineffective assistance of counsel. Donald bases his ineffective assistance claim
on two alleged deficiencies in his trial counsel’s performance: (1) failure to request separate jury
instructions and separate verdicts related to the two separate periods of
alleged abandonment and (2) failure to elicit testimony or introduce other
evidence at trial related to specific activities Donald claims to have done
with his son, which Donald believes would have shown he had a substantial
relationship with his son.
¶9 A parent is entitled to
effective assistance of counsel in a proceeding to terminate parental
rights. A.S. v. State, 168 Wis.
2d 995, 1004-05, 485 N.W.2d 52 (1992).
In order to prove ineffective assistance of counsel, the parent must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the parent. See State
v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985); Strickland
v. Washington, 466 U.S. 668, 687 (1984). If the parent fails to prove either prong, we
need not address whether the other prong was satisfied. See
Strickland,
466 U.S. at 700.
¶10 Whether a parent proves
ineffective assistance of counsel is a mixed question of fact and law. See
Pitsch,
124 Wis. 2d at 633-34. Factual
determinations of the trial court will be upheld unless they are clearly
erroneous. Id. at 634. Whether trial counsel’s performance was
deficient and whether it prejudiced the parent are questions of law we review
de novo. See id.
¶11 When determining the
deficiency prong, this court evaluates the reasonableness of trial counsel’s
performance based on the facts of the particular case and viewed at the time of
trial counsel’s conduct. Id.
at 636. There is a “strong presumption
that counsel acted reasonably within professional norms.” State v. Johnson, 153 Wis. 2d 121,
127, 449 N.W.2d 845 (1990). Scrutiny of
trial counsel’s decisions, conduct and overall performance is highly
deferential. Pitsch, 124 Wis. 2d at
637.
¶12 On the prejudice prong, an
error by counsel is prejudicial if it undermines confidence in the
outcome. Id. at 642. To show prejudice, the complaining party must
demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland 466 U.S. at
694). “It is not sufficient for the
defendant to show that his counsel’s errors ‘had some conceivable effect on the
outcome of the proceedings.’” State
v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364 (quoting State
v. Carter, 2010 WI 40, ¶37, 324 Wis. 2d 640, 782 N.W.2d 695 (quoting Strickland,
466 U.S. at 693)).
¶13 We first look at Donald’s
claim that his trial counsel was ineffective in not challenging the jury
instructions and verdict submitted on the issue of abandonment. To prove abandonment, a jury needs to find,
among other things, that there were no visits or communication by the parent
for “a period of 6 months or longer.” Wis. Stat. § 48.415(1)(a)3.
Donald
argues he was denied his right to a five-sixths verdict because trial counsel
did not request separate jury instructions and separate verdicts on the two
separate periods of alleged abandonment.
¶14 At the Machner hearing,[6]
trial counsel testified that he was not aware of any case law that would have
required separate verdicts for each alleged period of abandonment. The trial court also noted at that hearing
that it found no case discussing the need for a separate verdict for each
alleged period of abandonment, stating, “I’ve been looking for case law on this
issue since the day this motion was filed.
There is none.” We, too, have found
no such law.
¶15 While in the future
Wisconsin law may clarify whether separate instructions and separate verdicts
are required when more than one period of abandonment is alleged, we have found
no clear law that would have required this at the time of the jury instruction
and verdict conference in this case.
Trial counsel is not required to object and argue points of law that are
unsettled. State v. McMahon, 186
Wis. 2d 68, 84-85, 519 N.W.2d 621 (Ct. App. 1994). As this court has previously held, “We think
ineffective assistance of counsel cases should be limited to situations where
the law or duty is clear such that reasonable counsel should know enough to
raise the issue.” Id. at 85; see also State v. Maloney, 2005 WI 74, ¶¶23-30, 281 Wis. 2d 595, 698
N.W.2d 583 (discussing performance standard where area of law is not
clear). Although it might have been
ideal for Donald’s trial counsel to argue for separate instructions and
separate verdicts for the two alleged periods of abandonment, because the law
and counsel’s duty regarding this matter were not clear, he was not deficient
for failing to do so. McMahon, 186
Wis. 2d at 84.
¶16 Because we hold that trial
counsel was not deficient with regard to the abandonment claim, we need not
address the prejudice prong.
¶17 Turning now to Donald’s
second ineffective assistance claim, we address Donald’s argument that, on the
issue of failure to assume parental responsibility, trial counsel was ineffective
for not eliciting testimony or introducing other evidence regarding specific
activities Donald claims to have done with his son. Here, the evidence Donald claims his counsel
failed to elicit or introduce was minimal compared to the balance of the testimony. Therefore, we conclude Donald has failed to
establish there was a reasonable probability that eliciting such testimony or
introducing such evidence would have changed the outcome of this case. Because Donald was not prejudiced by this
omission, we need not decide whether trial counsel’s conduct was deficient with
regard to this issue.
¶18 In evaluating the failure to
assume parental responsibility claim, the jury was instructed to consider
whether Donald had a “substantial parental relationship” with his son, meaning
“the acceptance and exercise of significant responsibility for the daily
supervision, education, protection, and care of [his son].” The jury heard substantial testimony regarding
Donald’s long periods of absence from his son’s life and lack of any
significant expression of interest during those periods. The jury was informed of over $12,000 in
child support Donald failed to pay to assist with the upbringing of his son. Donald did not know the name of his son’s teacher
and had never gone to his son’s school.
Donald never provided health insurance for his son. The jury also heard testimony regarding
Donald’s substance abuse, including driving while under the influence with his
son in the car.
¶19 Related to Donald’s alleged
failure to assume parental responsibility, the trial court, who heard the same
trial testimony as the jury, concluded, as do we, that testimony regarding
occasional activities such as “taking his son fishing or taking him to the zoo”
would have been comparatively “immaterial” to the more significant testimony
regarding Donald’s lack of a substantial parental relationship with his
son. The trial court summed up this
issue at the Machner hearing:
Going to the zoo and fishing?
That’s fun time. That’s not a
major decision. What does daily or
significant responsibility mean?
Supervision, education, protection, and care of the child. And it was quite clear from the testimony of
the mother that she did most of that.
And [Heather’s counsel] was correct when there was direct questions
asked of the father, he had no idea about anything about this child.… What do you know about his teacher. What do you know about his favorite toy? Stuff that goes to the heart of the
matter. And every answer was I don’t
know, I don’t know.
¶20 Considering the significant
testimony before the jury related to Donald’s lack of acceptance and exercise
of significant responsibility for the daily supervision, education, protection,
and care of his son, this court cannot conclude that Donald has met his burden
of demonstrating a reasonable probability that the jury verdict on this issue
would have been any different if his trial counsel had elicited testimony or
produced other evidence regarding the occasional activities Donald claims to
have done with his son. The absence of
such testimony does not undermine confidence in the outcome, and, therefore,
Donald has not shown prejudice.
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) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] The failure to assume parental responsibility claim is established by proving that the parent has not had a “substantial parental relationship” with the child. Wis. Stat. § 48.415(6).
[3] Donald argues the merits regarding the trial court’s failure to give separate instructions and verdicts for the two alleged periods of abandonment. However, he also acknowledges he waived his right to object to the instructions and verdict. We therefore discuss and apply waiver before moving on to Donald’s ineffective assistance of counsel claims.
[4] Donald’s motion asked that the “final judgment” and order be vacated, but only a final order was entered; thus, we characterize Donald’s motion as a motion to vacate the final order terminating his parental rights.
[5] This proof is subject to the responding parent’s ability to show good cause as described in Wis. Stat. § 48.415(1)(c), which provides:
(c) Abandonment is not established under par. (a)2. or 3. if the parent proves all of the following by a preponderance of the evidence:
1. That the parent had good cause for having failed to visit with the child throughout the time period specified in par. (a)2. or 3., whichever is applicable.
2. That the parent had good cause for having failed to communicate with the child throughout the time period specified in par. (a)2. or 3., whichever is applicable.
3. If the parent proves good cause under subd. 2., including good cause based on evidence that the child’s age or condition would have rendered any communication with the child meaningless, that one of the following occurred:
a. The parent communicated about the child with the person or persons who had physical custody of the child during the time period specified in par. (a)2. or 3., whichever is applicable, or, if par. (a)2. is applicable, with the agency responsible for the care of the child during the time period specified in par. (a)2.
b. The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency responsible for the care of the child throughout the time period specified in par. (a)2. or 3., whichever is applicable.
[6] A Machner hearing is an evidentiary hearing to determine trial counsel’s effectiveness. State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).