Brown County v. Kathy C.
| Decision Date | 21 November 2000 |
| Docket Number | 00-1587 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. <BR? A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. SeeWis. Stat. §808.10 and Rule 809.62. In re the Termination of Parental Rights to Chrissy M.D., a Person Under the Age of 18: Brown County, Petitioner-Respondent, v. Kathy C., Respondent-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III |
| Court | Wisconsin Court of Appeals |
APPEAL from orders of the circuit court for Brown County: DONALD R. ZUIDMULDER, Judge. Affirmed.
¶1.
This is an appeal of orders terminating Kathy C.'s parental rights to her three children.2 Kathy presents five contentions: (1) The orders must be reversed because she was not advised of her right to substitute the judge; (2) Brown County failed to prove that there was a substantial likelihood that she would not meet within one year the conditions prerequisite to her children's return; (3) the trial court violated her due process right to present a defense by excluding her expert witness's opinion that she was likely to meet the return conditions within a year; (4) her trial counsel was ineffective; and (5) a new trial should be granted in the interest of justice. This court concludes that Kathy's arguments are meritless and the orders terminating her parental rights are thus affirmed.
¶2. Kathy voluntarily placed her three children in foster homes through the Brown County Department of Human Services while she was receiving substance abuse treatment.3 At an uncontested hearing, the children were found in need of protection and services (CHIPS) pursuant to Wis. Stat. §48.13. The court entered CHIPS orders with one-year terms, each requiring Kathy to satisfy certain conditions before the children could be returned to her.
¶3. Approximately seven months after the CHIPS orders were entered, the department filed a termination of parental rights (TPR) petition for each child, seeking to terminate Kathy's rights under Wis. Stat. §48.415(2)(a).4 Kathy contested the petitions, and a jury found that the County proved the alleged termination grounds. At the dispositional hearing, the trial court terminated Kathy's parental rights upon its finding that termination would be in the children's best interests. See Wis. Stat. §§ 48.426 and 48.427. Kathy pursued post-adjudication motions, which the trial court denied. This appeal followed.
¶4. Kathy contends that at the initial appearance the trial court failed to advise her of the right to request a different judge to hear the proceedings. See Wis. Stat. §48.422(1), (4) and (5). Indeed, in its post-judgment written decision, the trial court found that "[t]he record fails to disclose that at the initial appearance [Kathy] was advised of her right to substitution." Kathy argues that under these circumstances, she is entitled to a reversal and new proceedings unless the department proved by clear and convincing evidence that Kathy knew of the right and voluntarily waived it.5 She further contends that the department did not meet this burden.
¶5. In In re Kywanda F., 200 Wis. 2d 26, 37, 546 N.W.2d 440 (1996), the supreme court held that a circuit court's failure to inform an alleged delinquent of the right to substitution is harmless error unless the party establishes actual prejudice. Relying on a TPR case, In re Robert D., 181 Wis. 2d 887, 891-92, 512 N.W.2d 227 (Ct. App. 1994), the supreme court held that "[i]n the case of the right to substitution, we conclude that actual prejudice is shown if it is established that the juvenile was not told of the right and did not know of that right." Kywanda, 200 Wis. 2d at 37. The court concluded that the prejudice suffered by the juvenile is the lost opportunity to substitute the judge due to ignorance of the right.
¶6. The supreme court held that the trial court should employ the Bangert 6analysis to determine whether failing to inform of the statutory right to substitution was reversible error. See Kywanda, 200 Wis. 2d at 38. Under that analysis, the parent must first make a prima facie showing that the court violated its mandatory statutory duties and allege that he or she in fact did not know of the information that the court was statutorily required to provide. See id. If a prima facie showing is made, the burden shifts to the County to demonstrate by clear and convincing evidence that the person knew of the statutory right and therefore was not prejudiced. See id. The County may utilize any evidence to substantiate knowledge of the right, including examining the person's counsel. See id.
¶7. At a post-judgment Machner7 hearing, Kathy's attorney gave the following testimony. He had no specific recollection of informing Kathy of her right to substitute the assigned judge. He has appeared as adversary counsel in many TPR cases and they constitute about twenty-five percent of his caseload. It is his practice to identify the judge before whom the case is filed and to "advise the client of the right to substitute and talk maybe about a particular judge's tendencies or give my opinion as to what I think about the judge." This is something he does regularly in TPR cases. It is his common practice to talk to the clients about the judge and whether they want to substitute. As part of his initial conference with a client, he goes through what is involved in a TPR. As part of this process, again, "it's my common practice to tell them to look at who the judge is, to look at who the judge was on the CHIPS case and see if they have any objection to that particular judge, and [in] every case I'm always interested in who the judge is." Kathy's attorney understood that a substitution request must be made at the initial appearance, and he has requested substitution in the past. He has no specific recollection of departing from his regular practice of informing his clients of the right to judicial substitution.
¶8. Kathy did not testify at the post-adjudication hearing and therefore did not refute the inference that her attorney informed her of the right, consistent with his common practice. Based on this evidence, the trial court drew the inference that Kathy knew of her substitution right.
¶9. Under Wis. Stat. §904.06, evidence of a routine practice is relevant to prove that a person's conduct conformed with that practice.8 In other words, proof of a routine practice is relevant to demonstrate by inference conduct on a particular occasion. Even where there is no corroborating evidence of conforming conduct on a particular occasion, evidence of habit or custom is nevertheless relevant because it makes more probable the fact that person acted in the particular manner. Any lack of evidence as to conduct on a particular occasion is a question of sufficiency. French v. Sorano, 74 Wis.2d 460, 466, 247 N.W.2d 182 (1976). Indeed, "this evidence often plays an important role during trial, since counsel will normally resort to it only in the absence of other evidence of the particular conduct sought to be proven through the ... routine practice." 7 Daniel D. Blinka, Wisconsin Practice, §406.1, at 139 (1991).
¶10. Kathy does not expressly argue that the trial court erred by considering habit evidence.9 Rather, she essentially argues that the trial court drew the wrong inference, tacitly implying that the evidence of Kathy's trial attorney's common practice was insufficient to prove clearly and convincingly that she had actual knowledge of her substitution right. Kathy, however, confuses the burden of proof at trial with the standard of review on appeal.
¶11. Although an action to terminate parental rights is civil, see In re J.A.B., 153 Wis. 2d 761, 765, 451 N.W.2d 799 (Ct. App. 1989), this court looks to a criminal case by analogy:
Although the trier of fact must be convinced that the evidence presented at trial is sufficiently strong to exclude every reasonable hypothesis of the defendant's innocence in order to find guilt beyond a reasonable doubt, this court has stated that that rule is not the test on appeal.
....
The test is not whether this court [is] convinced of the defendant's guilt beyond a reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true .... The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted ....
State v. Poellinger, 153 Wis. 2d 493, 503-04, 451 N.W.2d 752 (citations omitted). Thus, this court "may not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." Id. at 501.
¶12. As indicated, the trier of fact determines the sufficiency of the evidence and the inferences to be drawn from the evidence. See Acme Equip. Corp. v. Montgomery Co-op. Creamery Ass'n, 29 Wis. 2d 355, 363, 138 N.W.2d 729 (1966). Although the evidence of habit the trial court relied upon is circumstantial, "[i]t is well established that a finding of guilt may rest upon evidence that is entirely circumstantial and that circumstantial evidence is often times stronger and more satisfactory than direct evidence." Poellinger, 153 Wis.2d at 501-02. An appellate court, when faced with a record of historical facts that supports more than one inference, must accept and follow the inference drawn by the trier of fact unless the evidence on which that inference is based is incredible as a...
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