Steven vv KELLEY H., 02-2860.

• Decision Date: 13 March 2003
• Docket Number: No. 02-2860.,02-2860.
• Citation: 663 N.W.2d 817,263 Wis.2d 241,2003 WI App 110
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS TO ALEXANDER V., a Person Under the Age of 18: STEVEN V., Petitioner-Respondent, v. KELLEY H., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

263 Wis.2d 241

2003 WI App 110

663 N.W.2d 817

IN RE the TERMINATION OF PARENTAL RIGHTS TO ALEXANDER V., a Person Under the Age of 18:

STEVEN V., Petitioner-Respondent, v. KELLEY H., Respondent-Appellant.¹

No. 02-2860.

Court of Appeals of Wisconsin.

Submitted on briefs February 17, 2003.

Decided March 13, 2003.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Philip J. Brehm, Janesville.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Duane M. Jorgenson, Darlington.

A brief was filed by the guardian ad litem, Douglas J. Heenan of Block, Scott & Heenan, LLC, Platteville.

Before Vergeront, P.J., Dykman and Lundsten, JJ.

¶ 1. VERGERONT, P.J.

Kelley H. appeals the order terminating her parental rights to Alexander V. under WIS. STAT. § 48.415(4) (2001-02).² She contends she is entitled to a reversal of that order and a remand for a jury trial because of two trial court errors: (1) the trial court used summary judgment procedure, thereby denying her a fact-finding hearing, a jury trial, and due process; and (2) the court failed to advise her at the initial hearing of her right under WIS. STAT. § 48.422(5) to a continuance to discuss requesting substitution of the judge with her counsel.

¶ 2. We conclude that under Walworth County Department of Human Services v. Elizabeth W., 189 Wis. 2d 432, 436, 525 N.W.2d 384 (Ct. App. 1994), the court erred in employing summary judgment procedure, but that a harmless error analysis is appropriate. We conclude this error was harmless because there were no disputed issues of fact regarding the elements of WIS. STAT. § 48.415(4). We also conclude that under M. W. and I.W. v. Monroe County, 116 Wis. 2d 432, 342 N.W.2d 410 (1984), the trial court erred in not advising Kelley at the initial hearing of her right to request a continuance to discuss with counsel substitution of the judge. However, on the facts of this case, which include the undisputed facts that Kelley knew of her right to request a substitution and had discussed it with counsel before the initial hearing, a harmless error analysis is appropriate, and we conclude the error was harmless. Accordingly, we affirm.

BACKGROUND

¶ 3. Steven V., the father of Alexander, filed a petition to terminate Kelley's parental rights to Alexander, born March 28, 1983. The petition, filed on August 8, 2001, in Grant County, alleged WIS. STAT. § 48.415(4) as the ground for termination. This ground is established with proof that (a) the parent had been denied physical placement or visitation by an order containing the prescribed statutory notice; and (b) at least one year has passed without the order being modified to permit periods of physical placement or visitation. Section 48.415(4)(a) and (b).

¶ 4. Kelley appeared with counsel at the initial hearing on September 4, 2001. She advised the court that she was contesting the petition and wanted a jury trial.³ ¶ 5. Shortly thereafter, the guardian ad litem for Alexander filed a motion for summary judgment under WIS. STAT. § 802.08 or, in the alternative, for a directed verdict. The guardian ad litem contended there was no disputed issue of fact regarding the grounds for termination under WIS. STAT. § 48.415(4). In an affidavit he averred that he had been appointed guardian ad litem for Alexander by the court in Grant County; his appointment was continued by the court in Brown County for a trial there concerning the custody and placement of Alexander; after that trial the court entered an order on June 21, 1999, that contained the required statutory notice and denied Kelley physical placement; and to his knowledge no court order had subsequently modified the order so as to permit periods of physical placement or visitation with Alexander. A copy of the June 21, 1999 order was attached to the affidavit. Kelley objected to summary judgment procedure on the ground that under Elizabeth W., 189 Wis. 2d at 436, it may not be used in a case for termination of parental rights. She also objected to the motion for a directed verdict on the ground that it was premature, since, she asserted, she was entitled first to the opportunity to present evidence and to refute the evidence presented by petitioner.

¶ 6. At the hearing on the motion, Kelley appeared by telephone and her counsel was present in the courtroom. The court stated that the ground for termination under WIS. STAT. § 48.415(4) involved only matters of law for the court to decide and a jury was therefore not needed; it did not make sense to empanel a jury to hear undisputed evidence and then direct a verdict; and summary judgment procedure was a more appropriate procedure. The court concluded that it would schedule a fact-finding hearing for November 2, 2001, which would be a jury trial only if Kelley made a showing to the court by a certain date that there were disputed issues of fact that required a trial.

¶ 7. Kelley did not advise the court prior to November 2 that there were disputed issues of fact requiring a jury trial. On November 2 she appeared with counsel. Her counsel acknowledged that, given the ground for termination alleged, the court "does have the authority to direct a verdict in regard to that—or summary judgment, I guess, type motion" based on the record before it. Her counsel indicated, as he had at the earlier hearing on the motion, that his concern was with the reasons why Kelley had not complied with the order. The court confirmed that in its view the reasons Kelley had not complied were relevant, but not at this stage.

¶ 8. The court then took judicial notice of the file in this case, which, the court stated, established that Kelley had been denied periods of physical placement by a court order with the proper notice, and that at least a year had elapsed since that order with no modifications. The court entered a written order stating that the "verdict is directed in favor of the moving party, Steven ..." pursuant to the grounds in WIS. STAT. § 48.415(4)(a) and (b).

¶ 9. The dispositional hearing took place on April 11 and 12, 2002. The court determined that it was in Alexander's best interests to terminate Kelley's parental rights.

¶ 10. With new counsel, Kelley moved for both a jury trial and a new dispositional hearing. She contended that she had been denied her right to a factfinding hearing, a jury trial, and due process, and there was insufficient evidence at the fact-finding stage to establish a ground for termination. She also contended that at the time of the plea hearing on September 4, 2002, she had not been fully informed of her right under WIS. STAT. § 48.422(5) to request a continuance to consult with counsel regarding whether she wished to request substitution of the judge, and she was not aware she had the right to a continuance until after her parental rights were terminated.⁴

¶ 11. The court concluded that Kelley was not entitled to a new trial on the ground that she had been denied her right to a fact-finding hearing, a jury trial, and due process. The court stated that, although the better practice would have been to empanel a jury to hear the petitioner's proof and then direct a verdict, there was no evidence or argument that failure to do so had prejudiced Kelley, or that the outcome would have been different had that occurred. Since Kelley did not have a constitutional right to a jury trial, the court reasoned, the rules for waiver of a jury trial in a criminal context did not apply. The court reaffirmed its earlier ruling that the reasons Kelley did not comply with the conditions contained in the order denying her physical placement and visitation were not relevant in determining whether grounds existed under WIS. STAT. § 48.415(4), and it concluded the elements of § 48.415(4) had been established. The court also concluded that Kelley's constitutional right to due process before her parental rights were terminated had not been violated because she had had a fair opportunity to be heard, to present all her evidence, and to have her evidence, including the reasons she had not complied with the conditions in the order, considered before the petition to terminate was granted.

¶ 12. The court also denied Kelly's request for a jury trial and a new dispositional hearing on the ground she did not know she could have requested a continuance of the initial hearing to request a substitution of the judge. The court concluded it was not obligated under WIS. STAT. § 48.422(5) to advise a party represented by counsel of the right to seek a continuance to decide on a request for substitution. Based on Kelley's testimony that she spoke with her attorney on August 30, 2001, and discussed with him the issue of substitution of the judge, the court found that Kelley's attorney had advised her of the right to substitute. It found not credible her testimony that she would have exercised that right had she been given more time to think about it after September 4, and found that she decided at that time she did not want to exercise that right. The court based this determination on evidence that, knowing she had the right to substitute the judge, Kelly did not attempt to talk about it further with her attorney or her attorney's partner, who appeared with her at September 4 hearing, did not follow up on a letter she wrote to her attorney about it, and did not say anything to the court about substitution.

DISCUSSION

Use of Summary Judgment Procedure

[1, 2]

¶ 13. Kelley contends that, in spite of the terms of the written order, the trial court did not direct a verdict against her but employed summary judgment procedure. We agree. The court did not empanel a jury, hear witnesses, and direct a verdict on the evidence presented, but instead decided that the ground for termination was met based on the written submissions and the court records of which it took judicial notice— essentially a summary judgment procedure. See WIS. STAT. §...