In re Vaughn R.
| Citation | 770 N.W.2d 795,2009 WI App 109 |
| Decision Date | 29 June 2009 |
| Docket Number | No. 2009AP627.,2009AP627. |
| Parties | In re The Termination of Parental Rights to VAUGHN R., a Person Under the Age of 18. Monroe County Department of Human Services, Petitioner-Respondent, v. Luis R., Respondent-Appellant. |
| Court | Court of Appeals of Wisconsin |
Before HIGGINBOTHAM, P.J., DYKMAN and VERGERONT, JJ.
This appeal of an order terminating Luis R.'s parental rights to Vaughn R. presents three issues involving the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 (2006)1: (1) Does § 1912(f) of the ICWA, which requires a showing of likely serious emotional or physical damage to the child from continued custody by the parent, apply where the child is placed outside the parental home at the time the termination of parental rights (TPR) proceeding is initiated? (2) Does the record support a determination that the social worker testifying for the County is a "qualified expert witness" within the meaning of § 1912(f)? (3) Does § 1912(d), which requires efforts to provide remedial and rehabilitative services to prevent the breakup of the Indian family, impose a burden of proof beyond a reasonable doubt in a TPR proceeding?
¶ 2 We conclude that 25 U.S.C. § 1912(f) applies even though the child has been placed outside the parental home before the TPR proceeding is filed. Thus, in this case it applies even though Vaughn has been living with foster parents for several years. Because § 1912(f) applies, the County was required to prove beyond a reasonable doubt, by evidence that includes testimony of "qualified expert witnesses," that returning Vaughn to Luis "is likely to result in serious emotional or physical damage" to Vaughn. We conclude the record does not provide a reasonable basis for deciding that the county social worker is a "qualified expert witness" within the meaning of § 1912(f). Accordingly, we reverse and remand for a new trial.
¶ 3 Because the correct burden of proof for the showing required by 25 U.S.C. § 1912(d) will arise on remand, we address the issue. We conclude that, unlike § 1912(f), § 1912(d) does not impose a burden of proof on the states, and, in particular, does not require proof beyond a reasonable doubt for the § 1912(d) showing relating to efforts by the County to provide the prescribed services. Therefore, the instruction to the jury that this showing has to be proved by clear and convincing evidence is a proper statement of the law.
¶ 4 At the time of Vaughn's birth on October 18, 2004, his mother and his father, Luis, were in a relationship but were not living together. Vaughn was removed from his parents' care in February 2005 on an emergency basis due to injuries that, it was suspected, were caused by physical abuse. The Monroe County Department of Human Services placed Vaughn with foster parents with whom he has lived ever since, with the exception of a six-month period in 2005 when he was placed back in his mother's home. Luis was charged with physical abuse of a child contrary to WIS. STAT. § 948.03(2)(a) (2007-08),2 but was acquitted in October 2007. Vaughn is a special needs child with a severe permanent brain injury that has caused a seizure disorder, significant developmental delays, and legal blindness.
¶ 5 In May 2008, the County filed a petition for involuntary termination of Luis's parental rights.3 The petition alleged that Vaughn had been adjudicated a child in need of protection and services (CHIPS), had consistently remained placed outside his father's home under a dispositional order since May 2005, and that all the requirements for termination of parental rights under WIS. STAT. § 48.415(2) were met.4 Luis denied the allegations of the petition and requested a jury trial.
¶ 6 At the trial Vaughn's treating neurologist testified to his medical conditions and needs and his foster mother testified to the extensive care he required. A social worker employed by the County testified to the conditions imposed under various court orders and Luis's level of compliance, or lack thereof, with each. She testified that, although Luis expressed interest in having his son live with him, his conduct in attending only a minimal number of medical appointments and missing many scheduled visits with Vaughn demonstrated that he did not have the necessary commitment and resulted in his not having sufficient knowledge about Vaughn. She and the department doubted that Luis could meet Vaughn's significant needs and concluded that placement with Luis was not in Vaughn's best interests.
¶ 7 In his testimony Luis explained the reasons he had not met some of the conditions, the efforts he had made to change his life so that he would be able to care for Vaughn, and his plans for doing so. His efforts include drug and alcohol treatment, counseling, obtaining a different residence, and steps toward having a reliable means of transportation so that he can take Vaughn to all his appointments. His plans for caring for Vaughn include having the assistance of the woman he lives with and his brother.
¶ 8 Although the petition asserted that Vaughn was not subject to the ICWA, during the presentation of the County's case the court raised the question of its application because of a reference in the file to Luis having received counseling services from the Ho-Chunk Nation. The parties eventually agreed that the ICWA applied to Vaughn.5 However, they disagreed over the construction and application of two provisions, 25 U.S.C. § 1912(d) and (f):
(d) Remedial services and rehabilitative programs; preventive measures. Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
....
(f) Parental rights termination orders; evidence; determination of damage to child. No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serous emotional or physical damage to the child.
¶ 9 With respect to 25 U.S.C. § 1912(f), the County's position was that it did not apply because Vaughn had not been in Luis's care since February 2005. Luis's position was that it did apply. Luis moved for a dismissal at the close of the County's case on the ground that the social worker who testified for the County did not qualify as an expert within the meaning of subsec. (f) and did not present testimony making the showing required by that subsection.6 The circuit court agreed with the County that subsec. (f) did not apply and denied Luis's motion for dismissal.
¶ 10 Although the court ruled that 25 U.S.C. § 1912(f) did not apply, it agreed to give special verdict question number 7 proposed by Luis:7 "Is the removal of Vaughn ... from the care of the [foster parents] likely to result in serious emotional or physical damage to the child?" The court also instructed the jury, at Luis's request, that in order to answer "yes" to this question, the jury must be convinced beyond a reasonable doubt and must be unanimous.
¶ 11 With respect to 25 U.S.C. § 1912(d) of the ICWA, the court submitted to the jury these two special verdict questions, to which both parties agreed:
5. Has the Monroe County Department of Human Services made an active effort to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family?
6. Have the efforts of the Monroe County Department of Human Services to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family been unsuccessful?
The court declined to instruct the jury, as Luis requested, that in order to answer "yes" to these questions, it must be convinced beyond a reasonable doubt. Instead, the court employed the clear and convincing standard, the burden of proof applied to the questions relating to WIS. STAT. § 48.415(2).8
¶ 12 The jury answered yes to the three special verdict questions relating to the ICWA and to the special verdict questions relating to WIS. STAT. § 48.415(2).9 Following a dispositional hearing, the court entered an order terminating Luis's parental rights.
¶ 13 On appeal Luis contends he is entitled to a new trial because of errors the circuit court made in construing and applying the ICWA. First, he asserts, the circuit court erred in concluding that 25 U.S.C. § 1912(f) does not apply. Because it does apply, according to Luis, there must be a "qualified expert witness" to support the showing required by subsec. (f) and the county social worker who testified does not meet this standard. Second, with respect to subsec. (d), Luis argues that the proper burden of proof is beyond a reasonable doubt and the jury instruction using the clear and convincing evidence standard was therefore incorrect.
¶ 14 The County does not dispute that the ICWA in general applies, but asserts that the court correctly concluded that 25 U.S.C. § 1912(f) does not apply because Vaughn had not been in his father's custody for several years. With respect to subsec. (d), the County responds that, in applying a clear and convincing standard, the circuit court properly harmonized the Wisconsin Children's Code with the ICWA.10
¶ 15 The issues before us require interpreting the ICWA and applying it to a given set of facts, thus presenting...
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