Brown County Dept. of Human Services v. Kim A.S.
| Decision Date | 16 September 1997 |
| Docket Number | Nos. 97-1841,97-1842,s. 97-1841 |
| Citation | 213 Wis.2d 487,570 N.W.2d 912 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Interest of SHENANDOAH A.S., a person Under the Age of 18. BROWN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, Oneida Tribe of Indians of Wisconsin, Intervenor-Respondent, v. KIM A. S., Respondent-Appellant. In the Interest of SHAYNON F.S., a person Under the Age of 18. BROWN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, Oneida Tribe of Indians of Wisconsin, Intervenor-Respondent, v. KIM A. S., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Brown County: SUE E. BISCHEL, Judge. Affirmed.
Kim A.S. appeals an order terminating his parental rights to his minor children, Shenandoah A.S. and Shaynon F.S. Kim raises five issues on appeal: whether (1) the court erroneously exercised its discretion by denying his motion to suppress a videotape; (2) the court erroneously exercised its discretion by not instructing the jury that Kim did not live at the residence when the videotape was made; (3) the court erred by allowing a social worker, Sue Steinfeldt, to testify as an expert witness; (4) the court violated Kim's Fourth Amendment rights by forcing him to submit to two preliminary breath tests during trial without finding him in contempt; (5) and the court was biased against Kim and erred by giving undue weight to irrelevant and improper facts. This court rejects each of Kim's arguments, and affirms the trial court's order.
On November 14, 1996, the Brown County Human Services Department 1 filed a petition for the involuntary termination of parental rights to Shashoni L.D., Shenandoah A.S., and Shaynon F.S. Kim A.S. was Shenandoah and Shaynon's father. The three children's mother, Sherry, conceded grounds to terminate rights to all three of her children, as did Shashoni's father, Samuel F.D. Kim contested termination to Shenandoah and Shaynon.
The record reflects a long and detailed history of County involvement with the children. It began providing services to Sherry and the three children in 1990 because of Sherry's drug and alcohol addiction and commensurately poor parenting. Kim, who was involved in these efforts, often resided with Sherry. Social workers continued to respond to reports of child neglect and parental alcoholism. The County was also actively involved in 1991 and 1993 when Sherry was pregnant and using drugs and alcohol. During these times, Sherry and Kim had trouble keeping a stable residence and, when they had one, the conditions were described as squalid. Both parents also left the children unattended or unsupervised, and there was concern that the youngest child's medical needs were not being met.
In October and November 1993, social workers began receiving reports that the children were going to day care extremely filthy, without diapers, and with untreated rashes and infections. Sherry was using drugs and alcohol daily. She was suspected of selling drugs. When Kim asked the social workers to do something about Sherry, who was intoxicated, they replied that it was his responsibility to get help and to get the kids out of the environment. He replied, On November 16, 1993, social workers again went to the residence. Reportedly, the house was filthier than ever and completely cockroach infested. Kim was again told to do something, and he answered he could not.
Shortly thereafter, the social workers returned to the residence to take custody of the children, but Sherry had fled with two of them, leaving Shenandoah with a neighbor. He was placed in emergency foster care. The trial court placed Shenandoah with Kim on the condition that Sherry not reside with him. Sherry finally surrendered the other children, and Shaynon was also placed with Kim.
In early February 1994, a CHIPS disposition was entered, formally placing Shenandoah and Shaynon with Kim. Conditions imposed on Kim included: AODA assessment and follow through with aftercare treatment; absolute sobriety; participation in a parenting class; no unsupervised contact between the children and Sherry; adequate supervision and appropriate caretakers at all times; and cooperation with County Human Services and the Oneida tribe. However, in the spring of 1994, Sherry again lived with Kim and the children. She soon became the primary caretaker, complaining that Kim was drinking again. In the summer of 1994, Sherry began drinking as well, and conditions in the home deteriorated. Social workers received reports that the children were being left alone in the house and unsupervised in the park.
On July 25, 1994, Sherry signed a voluntary placement agreement. Both children were eventually placed in foster care. In September 1995, Kim and Sherry were again living together. They were allowed unsupervised visits with the children at Kim's home on Fridays from 10:30 a.m. to 5 p.m. However, by October, both were drinking again. Evidence also emerged that an older sibling sexually abused one of the children during visitations.
Neither parent appeared at an extension hearing held January 11, 1996. Visitations were suspended, but were eventually reinstated at a neutral site for one and one-half hours per week. Kim attended visitation sporadically and, apparently, when he did attend, his participation with the children was minimal. The County decided to seek termination of parental rights as part of its permanency plan on August 27, 1996.
The County sought termination of Kim's parental rights pursuant to § , STATS., alleging he failed to demonstrate substantial progress toward meeting the conditions enumerated in the February 3, 1994, CHIPS order and was unlikely to do so in the next twelve months. The case was tried to a jury on March 3-4, 1997. During the trial, the court permitted a videotape of the conditions of the children's home to be admitted. Under the Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq., seven special verdict questions were submitted to the jury for each child. All were returned in favor of the County, with no dissenting jurors. At disposition, the trial court terminated Kim's parental rights to both children, and the final order was filed on May 7, 1997.
Kim first argues that the court erroneously exercised its discretion by denying his motion to suppress the videotape of the interior of the house in which the children were living. He asserts that it was irrelevant because he had moved out of the house a month prior to the taping. Kim also claims that the tape was prejudicial. He finally asserts surprise, having not been advised of its existence until the pretrial conference, which was held one week before trial.
Whether to admit evidence is a matter within the discretion of the trial court. State v. Evans, 187 Wis.2d 66, 77, 522 N.W.2d 554, 557 (Ct.App.1994). A trial court properly exercises its discretion when it examines the relevant facts, applies the proper standard of law, and engages in a rational decision-making process. State v. Bunch, 191 Wis.2d 501, 506-07, 529 N.W.2d 923, 925 (Ct.App.1995). When a trial court does not articulate its reasoning, the appellate court may independently examine the record to determine if it provides a basis for the trial court's exercise of discretion. State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983).
This court concludes that the trial court did not erroneously exercise its discretion by admitting the videotape into evidence. First, it properly determined that the tape was relevant. It demonstrated the conditions in which the children were living when initially removed from the home. More significantly, it was relevant to Kim's parenting abilities. Kim cannot successfully argue that after only one month's absence he had no responsibility for conditions in the home or their likely effect on the children. He was aware of the conditions his children were subjected to and yet he failed to do anything about them.
Kim claims the court erred by not excluding the videotape, which was produced at the February 25 final pretrial, six days before the trial commenced. The basis for the suppression motion was surprise; he did not ask for a continuance. 2
Kim does not show how the County's delay in producing the videotape prejudiced his case. He received a copy six days before trial, affording him more than sufficient time to review the twelve-and-one-half-minute tape. He does not explain how he would have investigated the video, or how an investigation would help his case. In addition, he had ample time to contest its admissibility. The court did not err by denying Kim's motion to suppress on the basis of surprise.
Finally, Kim claims that the trial court erroneously exercised its discretion by concluding that the videotape was not unduly or unfairly prejudicial. A court must exercise discretion by weighing the probative value of evidence against its prejudicial effect. Kelly v. State, 75 Wis.2d 303, 319, 249 N.W.2d 800, 808 (1977). Relevant evidence will not be excluded simply because it is prejudicial; it must be unfairly prejudicial. Johnson v. Kokemoor, 199 Wis.2d 615, 636, 545 N.W.2d 495, 503 (1996). Evidence is unfairly prejudicial when it threatens fundamental goals of accuracy and fairness by misleading the jury or by influencing it to decide the case upon an improper basis. State v. Hall, 196 Wis.2d 850, 881, 540 N.W.2d 219, 232 (Ct.App.1995), rev'd on other grounds, 207 Wis.2d 54, 557 N.W.2d 778 (1997).
Kim does not claim that the videotape inaccurately reflects the house's condition. He claims that the conditions reflected were such as to arouse the jury's sense of horror and...
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