Racine Cnty. Human Servs. Dep't v. L.H. (In re Termination of Parental Rights to C.M.)
| Decision Date | 23 March 2016 |
| Docket Number | No. 2015AP1872.,2015AP1872. |
| Parties | In re the termination of parental rights to C.M., a person under the age of 18. Racine County Human Services Department, Petitioner–Respondent, v. L.H., Respondent–Appellant. |
| Court | Wisconsin Court of Appeals |
L.H. appeals from the trial court's order terminating her parental rights to C.M. and the court's denial of her posttermination motion. She argues she is entitled to a new trial because (1) improper evidence was introduced during the fact-finding hearing that C.M. had “bonded” with his foster family, (2) the trial court erroneously instructed the jury with regard to the “five-sixths verdict” rule, and (3) she did not receive the proper number of peremptory strikes. She further argues that because her trial counsel failed to object to the above, counsel provided her ineffective representation. Lastly, she claims the trial court erred in denying her motion for a new trial. We affirm.
¶ 2 Racine County filed a petition to terminate L.H.'s and C.M.M.'s parental rights to C.M. on the grounds that C.M. was a child in “continuing need of protection or services,” under Wis. Stat. § 48.415(2), and L.H. and C.M.M. “fail[ed] to assume parental responsibility” for C.M., under § 48.415(6). C.M.M., C.M.'s father, failed to personally appear for the fact-finding hearing on the petition—the first phase of a termination of parental rights (TPR) proceeding.2 The following matters relevant to L.H.'s appeal took place at the fact-finding hearing on whether grounds existed for the termination of L.H.'s and C.M.M.'s parental rights. See Wis. Stat. § 48.424(1).
¶ 3 For this hearing before a jury, L.H. and C.M.M. were afforded three peremptory strikes each, and the County and guardian ad litem were afforded three strikes between them. Thirteen jurors were selected for the hearing, including one alternate juror.
¶ 4 L.H. testified first at the hearing. She gave birth to C.M. by emergency C-section on February 1, 2012, when she was seven months pregnant. C.M. was born with significant health issues. L.H. received a lesson in taking care of his feeding tube, and she sometimes took care of his tube when he was at Children's Hospital. In March 2012, C.M. was discharged from the hospital and began living in a foster home. L.H. regularly visited C.M. until October 2012, but after that her visits with C.M. “became far and few between.” L.H. testified that at no time since C.M.'s birth has he ever lived in the same residence with her or even been with her in her residence.
¶ 5 Regarding her living arrangements since C.M.'s birth, L.H. testified as follows. From the time of C.M.'s birth through the time she was evicted in July 2012, L.H. lived in an apartment in Burlington. After the eviction, L.H. lived in a hotel for some time. In October 2012, she moved into a homeless shelter in Racine. In or around November 2012, she was asked to leave the shelter and thereafter, until approximately April 2014, she stayed in at least seven different locations in Milwaukee, including a church shelter, which she was asked to leave in January 2014. In April 2014, L.H. moved into a homeless shelter in Racine for approximately two months before leaving to live in an apartment in Racine. She testified she had “a relapse” and was evicted from that apartment. For the two and a half months prior to trial, she had been living at a homeless shelter in Burlington. L.H. testified her sole source of income was social security disability, but she also received food stamps.
¶ 6 L.H. also testified regarding her history of substance abuse and attempts to remain sober, acknowledging she tested positive for cocaine use in November 2011 (while pregnant with C.M.), participating in “A.A.,” “relaps[ing]” in December 2011, smoking “weed,” and dealing with mental health issues her “entire life.” She initially indicated she had no positive drug tests between March 19, 2012, and January 2013, but when asked about specific dates therein, she confirmed testing positive for cocaine use on April 27 and May 22, 2012, and for “K–2” use on June 5, 2012. In October 2013, around the time of her first appearance on the petition for termination of her parental rights, L.H. was discharged from an alcohol and other drug abuse (AODA) recovery program due to her lack of attendance. She then participated in another program through a church, but confirmed she was “ultimately asked to leave that program” in January 2014. She testified regarding several drug tests that came back negative, but also to missing multiple scheduled tests in early 2014. In fall of 2014, L.H. began missing appointments in a women's AODA and trauma recovery program, Women of Worth, and was discharged. At the time of trial, L.H. was engaged in counseling through the HOPE center in Racine.
¶ 7 An initial assessment worker for Racine County Human Services testified next.3 She began working with L.H. immediately after L.H. gave birth to C.M. when L.H. tested positive for “several different drugs” and C.M. tested positive for cocaine. L.H. had told the assessment worker that she had used drugs “right before going into” the hospital. The assessment worker confirmed that when she visited L.H. and C.M.M. at their home in Burlington on March 6, 2012, she informed them that before the County would allow them to have C.M., they would have to show they were drug free, had an adequate and safe home for C.M., and could provide appropriately for his care. L.H. failed to appear for a scheduled drug test on March 9, 2012, reporting she missed the test because she had to be in Kenosha in relation to a pending criminal case she had for possession of drug paraphernalia. L.H. and C.M.M. told the assessment worker they would not cooperate with drug tests; as a result, the assessment worker and her supervisor made the decision to not allow them to have C.M. upon his discharge from the hospital, but rather took C.M. into temporary physical custody. Following the temporary physical custody hearing on March 16, and despite the court ordering that L.H. and C.M.M. not have visitation with C.M. until they provided a “clean” drug test, L.H. and C.M.M. refused to submit to a drug test. The assessment worker ended her involvement with this case on March 20, 2012.
¶ 8 A case manager4 for Racine County Human Services testified she worked with L.H. and C.M.M. from March 20 until June 29, 2012. When she received the case, L.H. was very compliant and willing to work with her, and “[i]t appeared as though the family was capable of caring for” C.M. after some training. L.H. participated in classes to learn certain skills to provide for C.M.'s needs and had been progressively building up those skills. She testified to L.H. visiting C.M. at the foster home, to C.M.'s on-going health problems, and to L.H. receiving mental health treatment, including being on psychotropic medications; but confirmed L.H.'s mental health issues did not appear to interfere with L.H.'s ability to care for C.M. during her visits with him. She acknowledged L.H. never had placement of C.M. or took care of his needs in a situation that was not supervised.
¶ 9 The caseworker testified that the “wheels came off” due to drug usage. Throughout the three months she had the case, L.H. had multiple negative drug tests but also had positive tests and/or admitted to drug use, including cocaine and marijuana use, on April 27, May 15, May 22 and June 20, 2012. L.H. displayed “evasive behaviors” to avoid coming in at times for drug tests, and had a “lack of follow through with AODA services.”
¶ 10 A Racine County social worker testified she had responsibility for this case for three and a half months beginning July 2012. She reported an instance in August 2012 where L.H. “blacked out” and emergency personnel were called to her apartment and that L.H. reported suffering from seizures. The blackout incident was significant because C.M. had “exceptional needs” and needed to be “closely monitored 24 hours a day.” The social worker noted that at that time C.M.M. served as a “paid personal care provider” for L.H.'s own needs. She testified the seizures and blackouts could be a long-term issue or the result of L.H.'s traumatic pregnancy. An AODA counselor had informed the social worker that seizures and blackouts also could be the result of “chemical dependency and drug alcohol abuse.”
¶ 11 The social worker testified that during the time she worked on this case, L.H. continued to visit C.M. about once a week at the foster home. During the visits, L.H. was “attentive and nurturing” toward C.M., and C.M. responded favorably to the attention he received from L.H. On one occasion, however, the foster mother reported concerns about L.H. being “too lethargic,” perhaps “having some medical issue.”
¶ 12 The social worker testified L.H. was taking medication and receiving services for her mental health issues. She stated that the barriers to L.H.'s reunification with C.M. were the need for L.H. to “maintain[ ] sobriety” and “compliance with mental health,” L.H.'s “relationship with [C.M.],” finances “because [C.M.] needed 24 hours care,” and [C.M.'s] need to be in a stable environment. She had concerns about how L.H. managed her finances, particularly “how she was spending her money.” The social worker testified that during her tenure on the case, at no point was L.H. responsible for C.M.'s daily care or taking care of him in an unsupervised manner.
¶ 13 An AODA counselor testified that based upon her direct assessment of L.H. in June 2012, L.H. was suffering from alcohol and cocaine dependency and marijuana abuse, and “had a long-standing substance abuse problem.” The counselor established a plan with L.H. to reach sobriety, and noted that during her sessions L.H. was “cooperative” and “meeting the expectations,” but that L.H. was eventually discharged from the program due to her poor attendance. She indicated that both “blackout...
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