PUBLISHED OPINION
Case Nos.: 95-0075 and 95-0076
†Petition for
Review Filed
Complete Title
of Case:
No. 95-0075
In the Interest of
Guenther D.M., A Person
Under the Age of 18 Years:
JERRY M. and GEORGIANNA M.,
Petitioners‑Respondents,
v.
DENNIS L.M.,
Respondent‑Appellant.
†
- - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
No. 95-0076
In the Interest of
Emil A.M., A Person
Under the Age of 18 Years:
JERRY M. and GEORGIANNA M.,
Petitioners-Respondents,
v.
DENNIS L.M.,
Respondent-Appellant. †
Oral Argument: September 7, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 1, 1995
Opinion Filed: November
1, 1995
Source of APPEAL Appeal from orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If
"Special", JUDGE: WARREN A. GRADY
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause was
submitted on the briefs and oral argument of Tim Provis of Port
Washington.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, the cause was
submitted on the brief of Christopher L. O'Byrne and Christopher R.
Behrens of McManus & O'Byrne of Port Washington. Oral argument by Christopher L. O'Byrne
Guardian
Ad Litem There was a brief and oral argument by
Guardian ad
Litem, Eric E. Eberhardt of Runkel,
Ansay & Eberhardt of Port Washington.
|
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 1, 1995 |
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. 95-0075
95-0076
STATE OF WISCONSIN IN
COURT OF APPEALS
No. 95-0075
In the Interest of
Guenther D.M., A Person
Under the Age of 18 Years:
JERRY M. and GEORGIANNA M.,
Petitioners‑Respondents,
v.
DENNIS L.M.,
Respondent‑Appellant.
- - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
No. 95-0076
In the Interest of
Emil A.M., A Person
Under the Age of 18 Years:
JERRY M. and GEORGIANNA M.,
Petitioners-Respondents,
v.
DENNIS L.M.,
Respondent-Appellant.
APPEALS
from orders of the circuit court for Ozaukee County: WARREN A. GRADY,
Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Dennis L.M. appeals from orders of the trial
court terminating his parental rights and orders denying his motion for a new
trial. We conclude that the trial court
correctly excluded evidence of Dennis's postincident contact with the children
and the length of his incarceration as not being applicable under § 48.415(5), Stats., and properly excluded Dennis's
requested jury instruction on substantial threat. We further conclude that there are no grounds for a discretionary
reversal and that the trial court considered the children's wishes in making a
“best interests” determination.
Accordingly, we affirm the trial court.
Jerry
M., the children's grandfather, filed petitions for the termination of Dennis's
parental rights to Emil A.M. (d.o.b. 6/10/83) and Guenther D.M. (d.o.b.
3/23/87). The trial court determined
that the applicable ground for termination was child abuse pursuant to §
48.415(5), Stats.[1] Dennis was convicted of the first-degree
intentional homicide of the children's mother, contrary to §§ 940.01(1),
939.63(1)(a)2 and 939.64(2), Stats.;
two counts of confining a person without consent, contrary to §§ 940.305 and
939.63(1)(a)2, Stats.; and two
counts of false imprisonment, contrary to §§ 940.30 and 939.63(1)(a)4, Stats.
When
Emil was three or four years old, he lived with his parents in New Mexico. During this time, Dennis exposed Emil to his
use of cocaine on one occasion.
Sometime after the family moved back to Wisconsin, Emil, Guenther and
their mother moved to a shelter for battered families. Emil testified that they moved to the
shelter because Dennis was “hitting us and that he was drinking so much.”[2] Eventually, they moved to an apartment. One evening, Dennis went to the apartment
armed with a gun and took the family prisoner.
The next day, Dennis released the children. As the children were leaving the apartment, Emil testified that
Dennis was pointing a gun at his mother.
As he was waiting in his grandfather's car, he heard a gunshot and knew
that his mother had been shot.
Prior
to the fact-finding hearing, Dennis brought motions regarding the conduct of
the proceeding. During the hearing on these
motions, the court ruled that evidence of Dennis's pattern of behavior towards
the children after the murder would not be relevant. The fact-finding hearing was held before a jury. The jury found that the evidence
demonstrated child abuse as grounds for terminating Dennis's parental
rights. At the dispositional hearing,
the court found that it was in the boys' best interests to terminate Dennis's
parental rights. Dennis appeals.
Dennis
raises several issues on appeal. He
argues that: (1) the exclusion of
evidence on the issue of “substantial threat” violated his right to present
evidence on his own behalf, (2) the court's refusal to give the requested jury
instruction on “substantial threat” denied Dennis a fair hearing, (3)
discretionary reversal is justified because the real controversy was not fully
tried, and (4) the court erred in failing to consider the wishes of the
children in its determination that termination was in their best interests.
Exclusion of Evidence
Initially,
Dennis argues that the court's exclusion of evidence on the issue of
“substantial threat” violated his right to present evidence on his own
behalf. Dennis states that the court
refused to allow him to present evidence of his contact with the boys since the
murder and to present a certified copy of his judgment of convictions to show
the length of his sentences. Dennis
contends that the court excluded relevant evidence that he would be unable to
be much of a threat to his sons since he would be incarcerated for the entirety
of their childhood.
We
agree with Dennis that the standard of review governing this issue is de
novo. While a court's decision to admit
or exclude evidence is generally discretionary, State v. Jenkins,
168 Wis.2d 175, 186, 483 N.W.2d 262, 265 (Ct. App.), cert. denied, 113
S. Ct. 608 (1992), the juvenile court's decision was based on its
interpretation of § 48.415(5), Stats. The interpretation of a statute is a
question of law which this court reviews without deference to the trial
court. K.N.K. v. Buhler,
139 Wis.2d 190, 199, 407 N.W.2d 281, 286 (Ct. App. 1987).
Section
48.415(5), Stats., provides in
relevant part:
Child abuse. Child abuse may be established by a showing that the parent has
exhibited a pattern of abusive behavior which is a substantial threat to the
health of the child who is the subject of the petition and a showing of either
of the following:
(a) That the
parent has caused death or injury to a child or children resulting in a felony
conviction.
When interpreting a statute, we first look to the plain
language of the statute. Marshall-Wisconsin
Co. v. Juneau Square Corp., 139 Wis.2d 112, 133, 406 N.W.2d 764, 772
(1987). If a statute is clear and
unambiguous, we need not look beyond its plain language in order to ascertain
its meaning. J.A.L. v. State,
162 Wis.2d 940, 962, 471 N.W.2d 493, 502 (1991). We conclude that § 48.415(5) is unambiguous for purposes of this
appeal.
Dennis
argues that “the ‘substantial threat’ element of § 48.415(5), Stats.,
necessarily involves assessment of present and future events so relevant
evidence of the parent's present behavior must be admitted.” We disagree. The statute clearly refers to behavior that has occurred in the
past and was a threat to the children's welfare. Dennis's past abusive behavior[3]
and his false imprisonment of the children were a threat to the children. The language “substantial threat” refers
back to the phrase “has exhibited a pattern.”
There is nothing in § 48.415(5) that would require a trial court to
consider postincident contact and the length of Dennis's incarceration. We conclude that the inquiry into whether a
parent “has exhibited a pattern of abusive behavior which is a substantial
threat” to the health of the child ends at the time of the felony conviction.[4]
We
agree with the guardian ad litem that to read the statute as Dennis asks would
render child abuse virtually unprovable in any proceeding where a parent
engages in a pattern of abusive behavior, has caused death or injury to a child
resulting in a felony conviction, and “is involuntarily separated from the
child for an extended period of time due to incarceration, and by reason of the
incarceration alone is unable to be a ‘present,’ much less substantial, threat
to the health of the child.” In
construing a statute, we must interpret it in such a way as to avoid an absurd
or unreasonable result. State v.
Moore, 167 Wis.2d 491, 496, 481 N.W.2d 633, 635 (1992).
Proposed Jury
Instruction
Next,
Dennis argues that the court erred in refusing his requested jury instruction
on “substantial threat.” As long as
jury instructions fully and fairly inform the jury of the law applicable to the
particular case, the trial court has discretion in deciding which instructions
will be given. Farrell v. John
Deere Co., 151 Wis.2d 45, 60, 443 N.W.2d 50, 54 (Ct. App. 1989). If the overall meaning communicated by the
instructions was a correct statement of the law, no grounds exist for
reversal. Fischer v. Ganju,
168 Wis.2d 834, 850, 485 N.W.2d 10, 16 (1992).
Whether jury instructions are a correct statement of the law is a
question of law that we review de novo.
See State v. Neumann, 179 Wis.2d 687, 699, 508 N.W.2d 54,
59 (Ct. App. 1993).
Dennis
argues: “The court instructed at some
length on the issue of psychological harm but on ‘substantial threat’ the instructions
merely repeated the statutory language.
Instructing the jurors in this manner misled them into believing the
‘substantial threat’ element of the statute was unimportant.” The trial court rejected Dennis's proposed
jury instruction which stated:
It is the
theory of Dennis [L.M.] that the pattern of abusive behavior, if any is found
by the Jury, must continue to be a substantial threat to the health of
Emil and Guenther [M.] in order for the jury to consider him an unfit
parent. If [Dennis] exhibited a pattern
of abuse that was a substantial threat to the health of the children in the past,
but does not presently exhibit such a pattern, and is unlikely to
exhibit such a pattern in the future, he cannot be found unfit.
We
agree with the guardian ad litem that Dennis's proposed instruction is legally
deficient. There is no language in §
48.415(5), Stats., that the
threat must be present and continuing.
Dennis's jury instruction misstates the law. To read Dennis's proposed language into § 48.415(5) would lead to
absurd results which we must avoid. See
Moore, 167 Wis.2d at 496, 481 N.W.2d at 635.
An
additional ground upon which to affirm the trial court's refusal to give the
instruction is that the jury does not decide the fitness of the parent. According to § 48.424(4), Stats., if grounds for the termination
of parental rights are found by the jury, the court shall find the
parent unfit. Here, Dennis's proposed
instruction incorrectly requests the jury to determine the issue of fitness rather
than focusing solely on whether grounds for termination exist. The trial court was correct in refusing to
give the instruction.
Discretionary
Reversal
Dennis argues that
a discretionary reversal is justified pursuant to § 752.35, Stats., because the “substantial
threat” issue was never properly submitted to the jury and so the real
controversy was not fully tried.
Section 752.35 provides: In an
appeal to the court of appeals, if it appears from the record that the real
controversy has not been fully tried, or that it is probable that justice has
for any reason miscarried, the court may reverse the judgment or order appealed
from, regardless of whether the proper motion or objection appears in the
record and may direct the entry of the proper judgment or remit the case to the
trial court for entry of the proper judgment or for a new trial, and direct the
making of such amendments in the
pleadings and the adoption of such procedure in that court, not inconsistent
with statutes or rules, as are necessary to accomplish the ends of justice.
We
reject Dennis's request for a discretionary reversal. Based on our discussion of the other issues, particularly the
issue of “substantial threat,” we conclude that there is no evidence which
would persuade us to reverse the trial court on the basis that the real
controversy has not been fully tried or that justice has miscarried.
Best Interests Determination
Dennis
contends that “the trial court's ‘best interests’ determination was erroneous
because it failed to consider the wishes of the child.” The decision to terminate parental rights is
within the discretion of the trial court.
Rock County Dep't of Social Servs. v. K.K., 162 Wis.2d
431, 441, 469 N.W.2d 881, 885 (Ct. App. 1991).
We will not overturn the trial court's decision unless there has been an
erroneous exercise of discretion. See
id. at 442, 469 N.W.2d at 885.
According to § 48.426(2), Stats., “The best interests of the
child shall be the prevailing factor considered by the court in determining the
disposition of all proceedings under this subchapter.” Subsection (3) of § 48.426 provides:
Factors. In considering the best interests of the
child under this section the court shall consider but not be limited to the
following:
(a) The likelihood of the child's adoption after
termination.
(b) The age and health of the child, both at the time of
the disposition and, if applicable, at the time the child was removed from the
home.
(c) Whether the child has substantial relationships with
the parent or other family members, and whether it would be harmful to the
child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from
the child.
(f) Whether the child will be able to enter into a more
stable and permanent family relationship as a result of the termination, taking
into account the conditions of the child's current placement, the likelihood of
future placements and the results of prior placements.
Dennis argues that the court never observed Guenther and
did not make any explicit determination of Emil's wishes.
The
guardian ad litem contends that the trial court was allowed to rely upon the
testimony of others at the dispositional hearing to ascertain the wishes of the
children. The guardian ad litem
asserts, and we agree, that it is his duty to inform the court of the
children's wishes and to make recommendations to the court even if those
recommendations are against the wishes of the children.[5]
In the
present case, the guardian ad litem filed a written recommendation with the
trial court, informing the court that Emil wanted to be adopted by his
grandparents but that the boys wanted some contact with Dennis. In the report, the guardian ad litem stated
that contact between Dennis and the children would be contrary to the children's
best interests. His report recommended
termination of Dennis's parental rights.
We conclude that the court did consider the wishes of the children, but
found that it was in their best interests that Dennis's parental rights be
terminated.
By the
Court.—Orders affirmed.
[1] After this
action was commenced, the Wisconsin legislature enacted § 48.415(8), Stats., which establishes the
intentional homicide of a parent as grounds for termination of parental rights. Subsection (8) became effective April 23,
1994. This potential issue was not
raised by the parties on appeal.
[2] Emil testified
that while in Wisconsin he witnessed Dennis's drinking:
Q Do you know how
often you would see him drinking?
A Usually every
weekend. That's the times that I would
see him at home. But every day he would go down to the bar
and have some beer.
....
Q Do you know,
when he would go out to the bars, when he
would get home?
A A lot of times
real late.
[3] Prior to
Dennis's false imprisonment of the children, he exhibited a pattern of abusive
behavior towards them. Emil testified
that Dennis “used to tickle us so hard that we got to the point of crying. And he would dig into our skin when he was
tickling us. And sometimes we would
start yelling stop, and he would just start laughing and keep tickling
us.” Dennis exposed Emil to his use of
cocaine while the family resided in New Mexico. After the family moved back to Wisconsin, Emil, Guenther and
their mother moved to a shelter for battered families. Emil testified that the reason for the move
was that his father was “hitting us and that he was drinking so much.”
[4] In his appellate
brief, Dennis alludes to constitutional issues which we deem to be not fully
developed. Regardless, our disposition
of this appeal would not require us to reach these potential issues.
[5] We conclude that
while the court is required to consider the wishes of the children, there is no
requirement that the children communicate those wishes personally at the
dispositional hearing. In this case,
there was ample evidence of the wishes of the children. Dennis's sister, Mary B., and his mother,
Shirley M., testified that the boys wanted contact with their father.