COURT OF APPEALS
DATED AND FILED
January 14, 2010
David R. Schanker
Clerk of Court of Appeals
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
In re the termination of parental rights
to Clayton J. K., a person under the age of 18:
Edward T. K.,
from an order of the circuit court for
¶1 DYKMAN, P.J.
Edward T.K. appeals from an order terminating his parental rights (TPR) to
Clayton J.K. following a jury trial on a TPR petition filed by Clayton’s
mother, Melissa S. Edward argues that
the trial court lost competency to exercise its jurisdiction under
¶2 The following undisputed facts are taken from the TPR
proceedings. Clayton was born to Melissa and Edward in
¶3 In 2001, the Iowa District Court for
¶4 On June 27, 2007, Melissa filed this action to terminate
Edward’s parental rights to their son, Clayton. She alleged both abandonment and failure to
assume parental responsibility. See Wis.
Stat. §§ 48.415(1)(a)3. and (6).
She included a UCCJEA affidavit, stating that an
¶5 In a pre-trial motion, Edward moved the court to exclude a recording of his interaction with Clayton, which revealed Edward berating Clayton for over an hour to recite the ABCs. Edward argued that the recording was irrelevant and highly prejudicial. Melissa argued the recording was relevant as rebuttal to deposition testimony that Edward and Clayton had a good relationship, and as to Edward’s defense that he had good cause for failing to contact Clayton for six months when Melissa refused to take his calls, because it showed why Melissa did not answer Edward’s phone calls. The court found
that it is probative here, makes something more or less likely as to the just cause issue because while that is the burden of the respondent, it again is something that the petitioner may have to anticipate either in their case in chief or by way of rebuttal to, depending on the timing, when did these things happen, as a part of the basis for any explanation she may have to counter the evidence concerning just cause. So it’s relevant to that extent in the Court’s view. And it is prejudicial but not unfairly so….
… [I]t is probative of the petitioner’s explanation for, perhaps for not communicating, for not taking initiatives to permit communication, for not returning phone calls, for not letting … the respondent know precisely where she was, by way of explanation for her conduct.
Here again, I haven’t heard the case, and I haven’t seen how this is going to play out. For my purposes, I’d rather, if this comes in at all, I’d rather it is in rebuttal ….
¶6 Edward then moved the court to reconsider its decision. Melissa again argued that the recording was relevant “to show Melissa’s reasons for not returning phone calls beginning in April ’06.” The court denied Edward’s motion, stating
that it depends on the nature of the proof concerning good cause, which is the respondent’s burden to produce and to show. And while I can’t totally control the order of proof here, the court, one, wants to know when in this trial this particular CD is going to be introduced; and I want to know in advance of its introduction; and whoever uses it is under my direction to alert the court when that’s going to happen. We’ll take a break and I will assess the situation at that point in time.
¶7 Also prior to trial, and seven months after this action was
filed, Melissa moved the
¶8 On March 4, 2008, the
¶9 The court held a jury trial on Melissa’s petition to terminate Edward’s parental rights in November 2008. Edward defended against both grounds alleged in the petition. He defended against the failure to assume parental responsibility ground by testifying as to his relationship with Clayton, and presented a good cause defense to the abandonment grounds by testifying that he did not call Melissa while he was in prison because Melissa had consistently refused to return his phone calls even before he was incarcerated, and he did not write to Clayton because he did not want to hurt him with the knowledge that his father was in prison. The court allowed Melissa to play the ABC recording in rebuttal over renewed objection by Edward.
¶10 The jury determined that there were grounds to terminate Edward’s parental rights because he had abandoned Clayton for a period of at least six months without good cause. Edward moved for a new trial based on the court’s admitting the ABCs tape, and the court denied the motion. Following a dispositional hearing, the court terminated Edward’s parental rights to Clayton. Edward appeals.
Standard of Review
¶11 “Whether a circuit court has lost competency is a question of
law that we review independently.”
¶12 Edward argues first that the circuit court lacked competency to
exercise its jurisdiction in this case under the UCCJEA, adopted in Wis. Stat. ch. 822. Edward argues that a circuit court must have
competency to exercise its jurisdiction under the UCCJEA at the time a TPR
petition is filed, and that when Melissa filed the TPR petition in this case
the Wisconsin courts did not have competency because the
¶13 At the outset, we note that “we are not reviewing whether the
circuit court in this case had subject matter jurisdiction to decide the
custody of [Clayton].” See P.C. v. C.C., 161
¶14 The “initial child custody jurisdiction” statute of the UCCJEA,
Wis. Stat. § 822.21, “concerns
the child’s contacts with the state in which the custody determination will be
made.” See P.C., 161
¶15 The problem with Edward’s argument, however, is that he
conflates the “initial child custody jurisdictional” requirements of the UCCJEA
under Wis. Stat. § 822.21
with the question of a court’s authority to modify the custody order of another
state under Wis. Stat. § 822.23. But these are separate steps: “After the custody petition is filed, a court
which has properly assumed jurisdiction under the [UCCJEA] may nevertheless be
required under the [UCCJEA] to decline to exercise that jurisdiction.” P.C., 161
¶17 Next, Edward argues that the trial court erred in admitting into evidence an audio recording of his interaction with Clayton, which revealed Edward repeatedly forcing Clayton to recite the ABCs, using profane and abusive language. Edward argues the recording was irrelevant to the grounds phase of the termination proceedings, and was highly prejudicial. See Wis. Stat. § 904.01 (“’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”); Wis. Stat. § 904.02 (only relevant evidence is admissible); Wis. Stat. § 904.03 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”). Edward argues that the circuit court erred by admitting the recording to allow Melissa to show good cause for refusing to return Edward’s calls, because Wis. Stat. § 48.415(1) does not allow a petitioner to present a good cause defense to a respondent’s good cause defense to an allegation of abandonment. Alternatively, he argues that even if the recording was relevant, its relevance was substantially outweighed by the danger of unfair prejudice because his abusive treatment toward Clayton on the recording was likely to inflame the jury.
responds that the recording was relevant to whether Edward had failed to assume
parental responsibility for Clayton, which involved a determination of “whether
[he] ha[d] expressed concern for or interest in the … well-being of [Clayton].”
Wis. Stat. § 48.415(6). She argues that the recording was also
relevant to the abandonment grounds, because Edward presented a “good cause”
defense for not having contacted Clayton for a six-month period. See
Wis. Stat. § 48.415(1). Melissa contends that the recording of Edward
berating Clayton made less likely his testimony that he did not contact Clayton
while he was incarcerated out of a desire to protect Clayton from the knowledge
that his father was in prison. She also
contends that Edward opened the door for the recording by giving misleading
testimony as to its contents. See Neely v. State, 86
¶19 We conclude that the trial court did not erroneously exercise
its discretion in allowing the recording into evidence. Although we agree with Edward that the
evidence was not relevant to Edward’s good cause defense because the issue was
not whether or not Melissa had good
cause to prevent Edward from contacting Clayton, we conclude that the evidence was
relevant rebuttal evidence because it called into doubt Edward’s credibility
after he testified that he did not contact Clayton for six months while he was
incarcerated out of concern for Clayton’s feelings; that he was actively
involved in Clayton’s education; and that he had a “frustrating moment” with
Clayton in attempting to teach him his ABCs.
Q. Did there come a time, sometime in 2003, that you had a—you and Clayton—you had a problem with Clayton in his ABC’s?
A. I had a frustrating moment, yes.
Q. Would that be [an] underestimate?
A. By just a little.
Q. What transpired between you and Clayton?
A. It was—we were working on his ABC’s. I knew he had—he knows his ABC’s, and he works with them at school. We got into it. And he started saying them. And I don’t know, he missed it a couple of times or whatever.
And I don’t know. I was frustrated. I got frustrated with the whole ordeal and blew it way out of proportion from what it should have been. And I mean, sometimes you have undue expectancy for your children. You want them to do the best and be the best. And sometimes you can push that too far. And that’s pretty much what I did that day.
Q. Would you agree you pushed it too far?
Q. Did you want him to be able to complete the ABC’s that day?
A. Right. Yes. I knew that he knew that. And I don’t know, like I say, it was a bad deal, put undue pressure on a child, you know, sometimes. And I don’t know. You just have expectancy for him and things, and you want to be the best, and you want them to—you want them to succeed and, you know, be able to do things that, you know, they can do. I don’t know. It was just a bad—it was a bad situation.
¶20 Edward introduced the issue of his concern for Edward as the crux of his defense to the abandonment grounds. Moreover, he directly testified about the ABCs event in a manner consistent with his defense: that he was a concerned, involved parent who did not want to upset his son with knowledge that his father was incarcerated. Thus, the recording was relevant because it made Edward’s testimony less credible and therefore less likely to be true.
¶21 Finally, while we agree that the recording was prejudicial, we cannot say that the trial court erroneously exercised its discretion in admitting the evidence despite its prejudicial effect. Although the court might reasonably have excluded the evidence as unfairly prejudicial, its decision to allow the evidence despite its prejudicial effect had a basis in the record: the evidence was necessary to allow the jury to determine whether Edward had good cause for failing to contact Clayton out of concern for Clayton’s feelings. See State v. Payano, 2009 WI 86, ¶97, _Wis. 2d_, 768 N.W.2d 832 (upholding circuit court’s decision to admit prejudicial evidence because “[i]t was not a decision that no reasonable judge, acting on the same facts and underlying law, could reach” (citation omitted)). Accordingly, we affirm.
By the Court.—Order affirmed.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
 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.
 Edward provided a statement of the case in his brief-in-chief, pursuant to Wis. Stat. § 809.19(1)(d). Melissa also provided a statement of the case in her response brief, as allowed by Wis. Stat. § 809.19(3)(a)(2). Edward then filed a motion to strike Melissa’s brief under Wis. Stat. §§ 809.14 and 809.83(2) for failing to provide “appropriate references to the record” as required under § 809.19(1)(d). Edward argues that Melissa’s statement of facts cited to matters outside the record, mischaracterized trial testimony, and contained inappropriate argument. Specifically, Edward points to the following in Melissa’s brief: a statement that Melissa informed the trial court off the record about the Iowa proceedings; details about Edward’s conviction and the parties’ past exercise of placement that lack citation to the record or that are not fully supported by the cited testimony; descriptions of testimony that Edward had a “violent temper,” the custody proceedings were “acrimonious,” that Clayton “feared” Edward, and details of the child support proceedings which Edward contends belong in argument rather than a factual section; and facts from the dispositional phase, which Edward contends are totally irrelevant to the issues here, regarding the grounds phase.
Melissa responds that her statement of the case was optional under Wis. Stat. § 809.19(3)(a)2., and that all of Edward’s complaints about her brief focus on the statement of the case rather than her argument. Melissa concedes that some of the facts in her statement of the case lack adequate citations to the record and that she improperly cited to an off the record remark. She requests that we disregard her statement of the case as a remedy for her failure to properly cite to the record.
As we stated in
our order denying Edward’s motion, we decline to strike Melissa’s brief. We agree with Melissa that the proper remedy
in this case is to disregard her statement of the case rather than to strike
her brief. While we sympathize with
Edward’s counsel’s frustration with Melissa’s counsel’s citation to facts not
in the record and other non-compliance with the rules, we do not agree that
striking Melissa’s brief is appropriate.
First, this is a TPR case under
Finally, in our order denying Edward’s motion, we stated that Edward filed his motion to strike two days after the deadline for his reply brief was due. Edward’s counsel then wrote us a letter stating that while under Wis. Stat. §§ 809.107(6)(c) and 801.15(1)(b) the reply brief was due on November 30, 2009, and counsel filed the motion to strike on December 2, 2009, Edward was entitled to three extra days to submit the reply brief under Wis. Stat. § 801.15(5)(a) because the response brief was served on counsel by mail. The problem we have in assessing this argument is that our clerk’s office calculates reply brief due dates according to §§ 809.107(6)(c) and 801.15(1)(b), and enters those dates in an electronic system; the policy of the clerk’s office is to change those dates to allow appellants three extra days according to § 801.15(5)(a) if the appellant notifies the clerk’s office that he or she received the respondent’s brief by mail. No rule requires this notice. Once the reply brief is filed, the clerk’s office does not retain documentation of reply brief due dates. We have no documentation in the record as to whether respondent’s brief was, in fact, served on counsel by mail. We will accept for purposes of this action counsel’s assertion that she received respondent’s brief by mail, and we will further assume that she notified the clerk’s office of that fact. Thus, we retract our statement that Edward’s motion to strike was filed two days after the deadline for his reply brief.
 There was some dispute at trial as to how and when Edward exercised placement, but both parties agreed Edward continued to exercise his right to placement during this time period.
 Melissa argues that the circuit court acted properly in modifying the custody order of another state under Wis. Stat. § 822.23, and in following the UCCJEA’s guidelines for simultaneous proceedings under Wis. Stat. § 822.26, which provides:
(1) … [A] court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum….
(2) … [A] court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties …. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in conformity with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
replies that Wis. Stat. § 822.26
is irrelevant because when this action was filed, a child custody proceeding
had not been “commenced” in
also argues that questions of a court’s jurisdiction or power to exercise its
jurisdiction must be given priority under Wis.
Stat. § 822.07, and that the circuit court was required to address
the question of its competency at the time this action was commenced. He contends that the circuit court lost
competency by not addressing the
 Edward argues in his reply brief that his testimony as to the content of the ABCs tape cannot be the basis for allowing the tape into evidence because the court had already ruled prior to trial that it would allow the tape. We reject this argument for two reasons. One, prior to trial, the court only denied Edward’s motion to exclude the recording, and stated it would address admissibility at trial. Second, even if Edward only testified about the recording based on the trial court’s ruling that it was admissible, the fact is that Edward’s testimony provided a false depiction of the contents of the ABCs recording. Edward certainly had the option, at trial, of providing an accurate depiction of the contents of the tape, particularly if he believed the tape was going to be admitted into evidence.