COURT OF APPEALS
DATED AND FILED
May 4, 2010
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.
IN COURT OF APPEALS
In re the termination of parental rights to
from orders of the circuit court for
¶<![if !supportFields]>1<![endif]> FINE, J. Chester C. appeals the order terminating his parental rights to Elisha Lois M.-C., and from the trial court’s order denying his motion for post-termination relief. He contends that his trial lawyer gave him ineffective representation by not objecting to various hearsay statements. The trial court assumed that the lawyer should have objected but determined that Chester C. was not prejudiced as a result. We affirm.
(1) A parent abandons his or her child if, as
material to this case, he or she “has failed to visit or communicate with the
child for a period of 3 months or longer,” if “the child has been placed, or
continued in a placement, outside the parent’s home by a court order containing
the notice required by s. 48.356 (2) or 938.356 (2).” Wis. Stat. § 48.415(1)(a)2.<![if !supportFootnotes]><![endif]> In deciding that this ground was proven, the
trial court noted that Chester C. had admitted that he “had no contact with”
Elisha from mid-August 2006 (“August 12th, or 13th”) to “November 26th”
2006. The trial court further found that
Chester C.’s reason for not having contact with Elisha during that time—namely,
that the social agency did not, as phrased by the trial court in its oral
decision finding that the State had proven abandonment, give Chester C. “a fair
chance” to meet his parental responsibilities—was negated by evidence that the
agency believed that Chester C. was “wanted by the Police Department for
involvement in a very violent offense [and i]t would have been irresponsible
for them to allow visitation under those circumstances.” Although he blames the social-service agency,
Chester C. does not show how the trial court’s findings are clearly erroneous. See Wis.
Stat. Rule 805.17(2); State v. Raymond C., 187
(2) A parent does not assume parental responsibility when he or she has “not had a substantial parental relationship with the child.” Wis. Stat. § 48.415(6)(a).
In this subsection, “substantial parental relationship” means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child, the court may consider such factors, including, but not limited to, whether the person has expressed concern for or interest in the support, care or well-being of the child, whether the person has neglected or refused to provide care or support for the child and whether, with respect to a person who is or may be the father of the child, the person has expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.
Wis. Stat. § 48.415(6)(b). In deciding that this ground was proven, the trial court found that the State had established that Chester C. had not “ever actually exercised a significant responsibility for the daily supervision, education, protection, and care of” Elisha, except “for a very brief time in this child’s life.” Here again, Chester C. does not point out how the trial court’s findings are clearly erroneous.
(3) There are grounds to terminate a person’s parental rights to a child if that child has been found to be in need of protection and services and the parent has not satisfied the conditions established to permit the child to return safely to the parent’s home. Wis. Stat. § 48.415(2).<![if !supportFootnotes]><![endif]> In deciding that this ground was proven, the trial court found that the State had established that the social-welfare agency had made sufficient efforts “to provide the services that were mandated to assist Mr. C[.]’s effectuating a safe return of Elisha to his home,” but that he had had not met those conditions. As with the other two grounds, Chester C. does not point out how the trial court’s findings are clearly erroneous.
¶<![if !supportFields]>3<![endif]> Rather than trying to show that the trial court’s ultimate findings under Wis. Stat. §§ 48.415(1)(a)2 & (6)(a) & (b) were clearly erroneous, Chester C. contends that his lawyer was ineffective because he did not object to the following hearsay assertions made during the trial. We set them out with some background.
(1) Chester C. was convicted on his
no-contest plea of battering his uncle. See Wis.
Stat. § 940.19(1). Hearsay
was received as to what the uncle and an alleged witness to the uncle’s
injuries told a
(2) A social worker with the Bureau of
Milwaukee Child Welfare testified about an anonymous caller who said that Chester
C. had slit
(3) The social worker testified that
(4) The social worker testified that another social worker told her that she had trouble locating Chester C. and that he had not made scheduled visits and did not return some telephone calls.
(5) Another social worker testified that at a
visit with Elisha, Chester C. wore headphones and did not seem as “engaged”
¶<![if !supportFields]>4<![endif]> A parent subject to a termination-of-parental rights petition
is entitled to effective assistance of a lawyer, and we apply the standards set
out in Strickland v. Washington, 466 U.S. 668 (1984). Oneida County Dep’t of Social Services v.
Nicole W., 2007 WI 30, ¶33, 299
¶<![if !supportFields]>5<![endif]> A trial court’s findings of fact in connection with the
¶<![if !supportFields]>6<![endif]> As noted, the trial court rejected Chester C.’s contention
that his trial lawyer ineffectively represented him by not objecting to the
hearsay evidence. Assuming that the lawyer should have objected and that not
doing so was below the standard of professional competent representation, the
trial court opined that Chester C. had not shown
Mr. C[.] has virtually continuously been involved in the criminal justice system since 1998. Exs. 6-12.<![if !supportFootnotes]><![endif]> Several of those convictions demonstrated high levels of domestic violence, most notably the incident involving Elisha’s mother resulting in her receiving 15 stitches to close the would he inflicted, an incident that occurred when Elisha was one year old. Exh. 11.<![if !supportFootnotes]><![endif]> Several of the incidents involved illegal substance use/possession and irrefutable evidence establishes use of cocaine as recently as August, 2008, more than one year after the termination petition in this case was filed. I have not calculated the cumulative amount of time the resultant periods of incarceration total, but it would be fair to say that they rendered Mr. C[.] substantially unavailable to meet the responsibilities of parenthood for virtually all of Elisha’s life. Most recently, his arrest and conviction, and related revocation of his extended supervision, in regard to the assault of his uncle (coupled with the documented substance abuse) resulted in him being incarcerated in August, 2008, with a projected release this month [February 2010].
Mr. C[.] bitterly complains that the presumed
inadmissible evidence was used to prove that he “was a violent person” and if
(Two footnotes added; one footnote omitted.)
¶<![if !supportFields]>7<![endif]> Other than complaining that his trial lawyer did not object
to the hearsay we have recounted, Chester C. does not show why, in Strickland’s
words, “there is a reasonable probability that” if his lawyer had objected “the result of the
proceeding would have been different,” which, Strickland opines, “is a
probability sufficient to undermine confidence in the outcome.” See State v. Byrge, 225 Wis. 2d
702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999) (“A defendant who alleges
that counsel was ineffective by failing to take certain steps must show with specificity what the actions,
if taken, would have revealed and how they would have altered the outcome of the proceeding.”) (emphasis
added), aff’d, 2000 WI 101, 237
¶<![if !supportFields]>8<![endif]> As we have seen and as the State points out, “Chester C.
makes no argument and provides [no] cite to legal authority that the circuit
court’s findings of fact”—either on the merits of whether his parental rights
to Elisha should be terminated or whether his trial lawyer gave him ineffective
representation—“are clearly erroneous.” Accordingly,
on our de novo review of the trial
court’s conclusion and giving deference to its findings, we agree that Chester
C. has not shown
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
<![if !supportFootnotes]><![endif]> Chester
C. does not argue that the court orders did not have the required notices or
<![if !supportFootnotes]><![endif]> Wisconsin Stat. § 48.415(2) reads:
Continuing need of protection or services, which shall be established by proving any of the following:
(a) 1. That the child has been adjudged to be a child or an unborn 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, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).
2. a. In this subdivision, “reasonable effort” means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child or of the expectant mother or child, the level of cooperation of the parent or expectant mother and other relevant circumstances of the case.
b. That the agency responsible for the care of the child and the family or of the unborn child and expectant mother 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 not including time spent outside the home as an unborn child; 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 9-month period following the fact-finding hearing under s. 48.424.
(am) 1. That on 3 or more occasions the child has been adjudicated to be in need of protection or services under s. 48.13 (3), (3m), (10) or (10m) and, in connection with each of those adjudications, has been placed outside his or her home pursuant to a court order under s. 48.345 containing the notice required by s. 48.356 (2).
2. That the conditions that led to the child’s placement outside his or her home under each order specified in subd. 1. were caused by the parent.
<![if !supportFootnotes]><![endif]> The exhibits to which the trial court referred included certified copies of Chester C.’s convictions on his guilty pleas of substantial battery in connection with his attack on Ellen M., theft of movable property involving someone else, and attempted possession of cocaine, in addition to his no-contest pleas to battering a woman other than Ellen M. and his uncle.
<![if !supportFootnotes]><![endif]> This references the substantial battery conviction noted earlier.