Christopher D., In Interest of, No. 94-3029

• Court: Court of Appeals of Wisconsin
• Writing for the Court: VERGERONT; DYKMAN
• Citation: 530 N.W.2d 34,191 Wis.2d 680
• Parties: In the Interest of CHRISTOPHER D., A Child Under the Age of 18: RHONDA R.D., Petitioner-Respondent, v. FRANKLIN R.D., Respondent-Appellant. d
• Docket Number: No. 94-3029
• Decision Date: 20 February 1995

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530 N.W.2d 34 191 Wis.2d 680 In the Interest of CHRISTOPHER D., A Child Under the Age of 18:
RHONDA R.D., Petitioner-Respondent,
v.
FRANKLIN R.D., Respondent-Appellant. ^d No. 94-3029. Court of Appeals of Wisconsin. Submitted on Briefs Feb. 8, 1995.
Opinion Released Feb. 20, 1995.
Opinion Filed Feb. 20, 1995.

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[191 Wis.2d 687] For the respondent-appellant the cause was submitted on the briefs of Jack E. Schairer of the Office of the State Public Defender, Madison.

For the petitioner-respondent the cause was submitted on the brief of Mary H. Behling and Martha Casper of Behling Law Office of Cambridge and Thomas R. Glowacki, guardian ad litem, of Hill, Glowacki, Jaeger & Reiley of Madison.

For the State of Wisconsin an amicus curiae brief was submitted by James E. Doyle, Atty. Gen., and Donald P. Johns, Asst. Atty. Gen.

Before GARTZKE, P.J., and DYKMAN and VERGERONT, JJ.

VERGERONT, Judge.

Franklin R.D. appeals from an order terminating his parental rights to Christopher D., and from an order denying his claim of ineffective assistance of counsel. Franklin claims: (1) The new procedure governing appeals in termination of parental rights (TPR) cases ¹ is unconstitutional because the

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[191 Wis.2d 688] requirement that appeals be decided within forty-five days of the filing of the record on appeal violates the doctrine of separation of powers between the legislative and the judicial branches; (2) The new briefing deadlines violate the doctrine of separation of powers; (3) The requirement that a notice of appeal be filed within fifteen days of service of the transcript violates Franklin's rights to equal protection and due process under the United States and Wisconsin Constitutions; (4) [191 Wis.2d 689] Franklin's appearance by telephone, not in person, during the proceedings violated his due process and equal protection rights; (5) The trial court erred in its construction of § 48.415(1)(a)3, STATS., which sets forth a ground for abandonment; ² (6) The trial court erred by failing to find he is an unfit parent for the foreseeable future before terminating his parental rights; (7) The trial court incorrectly denied his post-termination request for an in camera inspection of the Family Court Counseling Service file; and (8) Trial counsel was ineffective for failing to challenge the constitutionality of § 48.415(1)(c) ³ on grounds of vagueness. We reject his contentions and affirm the orders. BACKGROUND

Rhonda and Franklin were married in 1986 and are the parents of Christopher, born on July 5, 1987. The three lived together in the State of Washington until October 1987, when Rhonda moved to Wisconsin with Christopher. Rhonda initiated a divorce in Wisconsin in May 1988. Sole legal custody and primary physical placement were awarded to her. Franklin was allowed supervised visitation on thirty-days' notice, as determined by the guardian ad litem and the Family [191 Wis.2d 690] Court Counseling Service. Rhonda and Christopher continued to live in Wisconsin; Franklin continued to live in Washington.

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In August 1993, Rhonda petitioned to terminate Franklin's parental rights. She alleged that Franklin had not seen Christopher since April 26, 1989, and had not tried to see him, save for one attempt in July of 1991; that Franklin had written Christopher two or three times in the past four years; and that Franklin was roughly $8,000 in arrears in child support payments and had told Rhonda he would never pay child support. She alleged abandonment under § 48.415(1)(a)3, STATS.

Franklin appeared by telephone at the plea hearing and stated that he was in the custody of the Department of Corrections in Washington but wanted to appear in person at the proceeding. Franklin was provided with appointed counsel and counsel moved for a writ of habeas corpus ad testificandum to produce Franklin from Washington for trial. The trial court denied the motion on the ground that it lacked authority to order Franklin released from incarceration, but left open the options of a voluntary plan to enable him to attend or participation by telephone.

Franklin moved to dismiss the petition on the grounds that because Rhonda had taken Christopher from Washington without his permission, Christopher had not been "left by [Franklin] with a relative or other person," as required by § 48.415(1)(a)3, STATS., and that the allegations were not sufficient to support a finding that Franklin failed to visit or communicate with Christopher for a period of one year or more. The trial court denied the motion, concluding that the phrase "left by the parent with a relative or other person" [191 Wis.2d 691] includes letting a child continue in such a situation, and that the allegations in the petition were sufficient.

Defense counsel later informed the court that the Department of Corrections in Washington would release Franklin for trial upon the court's order. At the pretrial conference, defense counsel reported that the Wisconsin Public Defender's Office would not pay the approximately $4,000 in expenses for transporting Franklin to and from Wisconsin (which included the cost of two deputies). He asked that Rhonda be required to pay since Franklin was indigent. The court denied that request, finding that Rhonda had a net worth of "essentially zero" and was unable to pay. Defense counsel requested that the trial be delayed until Franklin was released from incarceration on April 15, 1995. The court concluded that it was likely that Franklin could participate in a meaningful manner by telephone. The issue of delaying the trial was not raised again by Franklin or his counsel.

The jury trial began on January 20, 1994. Franklin appeared by telephone and objected to appearing by telephone. Rhonda testified that Franklin visited Christopher two or three times in 1988 and 1989, but not after the divorce trial in April 1989. Rhonda testified that Franklin had not telephoned Christopher since April 1989. Before the TPR petition was filed, Franklin wrote numerous letters to Rhonda, some of which mentioned Christopher, and wrote some letters and cards to Christopher. Franklin was $8,800 in arrears in child support. Franklin testified that when he tried to visit Christopher in July 1991, he was arrested on a bench warrant and commitment order for failure to pay his child support arrearages and was unable to see Christopher. He also attempted to visit Christopher in February 1992. Franklin testified that [191 Wis.2d 692] he had purchased a house and remodeled it with Christopher in mind. He intended to give the house to Christopher when he became a man, and had pictures of his son there. Franklin also testified that he made gifts to Christopher before April 1989, but not after. We need not review the testimony of the Family Court Counseling Service director and of Franklin's father.

The jury found that Franklin abandoned Christopher. At the dispositional hearing on August 5, 1994, the court found Franklin unfit, found that it was in the best interests of Christopher that Franklin's parental rights be terminated, and ordered termination of Franklin's parental rights. The order was entered on September 6, 1994, and on September 9, 1994, trial counsel filed a notice of intent to pursue post-judgment relief. A notice of appeal was filed by appellate counsel on November 11, 1994. Appellate counsel also filed motions in this court to remand for a hearing on ineffective assistance

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of trial counsel, for a three-judge panel to decide the appeal, and to enlarge the time to file a brief. On December 1, 1994, we granted the motion for a three-judge panel and the motion for remand. We retained jurisdiction and established a schedule for the hearing on remand and for filing the transcript and record with this court. We ordered that the briefing schedule established in § 809.107(6), STATS., would begin to run when the record was returned to this court. We denied the motion to enlarge as moot. On remand, the trial court determined that trial counsel's representation had not been ineffective.

CONSTITUTIONALITY OF § 809.107(6), STATS

.--SEPARATION OF POWERS

Before May 5, 1994, the procedure for appeals in felony cases governed TPR appeals. Rules 809.40(1) [191 Wis.2d 693] and 809.30, STATS., 1991-92. The new procedure for TPR appeals shortens the deadlines in the appeal process. In addition to shortened time periods for the litigants, court reporters and clerks, § 809.107(6)(e), STATS., provides:

Cases appealed under this section shall be given preference and shall be taken in an order that ensures that a decision is issued within 45 days after the filing of the record on appeal with the court of appeals.

No other provision in the rules of appellate procedure governing other cases, civil or criminal, limits the time for deciding an appeal.

Franklin argues that imposing a time limit to decide a TPR appeal is an intrusion into the judicial branch barred by the doctrine of separation of powers. ⁴ In In re Complaint Against Grady, 118 Wis.2d 762, 348 N.W.2d 559 (1984), the supreme court held that "the setting of time limits for judicial decision-making concerns the efficient and effective functioning of the court system and, therefore, is a matter of court administration.... The legislature does not have the power to promulgate rules of court administration." Id. at 782, 348 N.W.2d at 569. The court declared unconstitutional a statute requiring the withholding of salary from judges who did not render decisions in their cases [191 Wis.2d 694] within a certain time period. Id. at 783, 348 N.W.2d at 569.

Notwithstanding § 809.107(6)(e), STATS., we may extend the time to issue a decision in a TPR case. Rule 809.82(2)(a), STATS., provides that "the [appellate] court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act...