Termination of Parental Rights of Willie C., In re
| Decision Date | 13 August 1998 |
| Docket Number | 98-1281,Nos. 98-1280,s. 98-1280 |
| Citation | 221 Wis.2d 599,586 N.W.2d 700 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Termination of Parental Rights of WILLIE C., a Person Under the Age of 18. DANE COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. CYNTHIA M., Respondent-Appellant. In re the Termination of Parental Rights of TOBY N., a Person Under the Age of 18. DANE COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. CYNTHIA M., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge. Affirmed.
1
Cynthia M. appeals the judgment terminating her parental rights to her children, Willie C. and Toby M. 2 She had previously entered no contest pleas to the petitions alleging grounds for termination of her parental rights to each child. On appeal she contends that the guardian ad litem (GAL) for the children was ineffective, and that she is entitled to a remand to the trial court to take testimony on this. She also contends that she is entitled to a reversal of the judgment because she did not knowingly and intelligently enter her pleas; the trial court lacked the competency to act because the two continuances of the dispositional hearing were inconsistent with her pleas; and the trial court erroneously exercised its discretion in ordering the disposition of termination of her parental rights.
We conclude that Cynthia may not bring a claim of ineffective assistance of counsel against the children's GAL, but, rather, may raise by motion in the trial court any concerns she has about the performance of the GAL. However, having failed to do so, she has waived the right to challenge the GAL's performance on appeal, and there are no compelling reasons to address this issue or to order a remand. We also conclude that her pleas were knowingly and intelligently entered, the trial court did not lose competency to act, and the court properly exercised its discretion in terminating her parental rights to both children. We therefore affirm.
The petitions for termination of Cynthia's parental rights to Willie (d/o/b 5/5/89) and Toby (d/o/b 7/15/92) were filed on July 22, 1996. 3 They alleged the following. The children were adjudged to be in need of protection and services and placed outside Cynthia's home by order dated November 24, 1993, and by subsequent orders dated November 16, 1994 and November 22, 1995. The first orders contained conditions that Cynthia had to meet to have the children returned to her home, and the subsequent orders contained similar conditions. The conditions included: successfully participate in parenting classes (demonstrated by the way she managed and cared for her children); successfully engage in alcohol treatment; do not associate with persons using alcohol or drugs; maintain absolute sobriety for a minimum period of six months; maintain a residence for at least six months that meets the approval of the GAL and social worker; participate in employment, education, or training; keep scheduled appointments; demonstrate an ability to mange finances by paying rent, utilities and food costs; and participate in a court-ordered psychological evaluation and any resulting recommendations.
According to the TPR petitions, Dane County Department of Social Services (DCDSS) made a diligent effort to provide the services ordered. However, the petitions alleged that Cynthia failed to make substantial progress toward meeting the conditions. The described failures included, among others: delayed participation in parenting classes such that she could not show she had benefited from them; not being able to manage her children's behavior during visits; not being able to maintain a safe residence for her children because of the dangerous and intoxicated persons and the drug activity at her residence; and a demonstrated inability to maintain employment or engage in an educational or training program. The petitions also alleged that there was a substantial likelihood she would not meet the conditions within twelve months following the fact-finding hearing on the petitions.
The court appointed a GAL for the children. Cynthia was represented by an attorney. She entered a denial to the petitions and requested a jury trial. Trial was scheduled for October 28, 1996, and a pretrial was held on October 16, 1996. At the pretrial, the parties presented a written document entitled "Stipulation, No Contest Plea and Waiver" to the trial court, signed by Cynthia and acknowledged in writing by her attorney. The document stated that there were grounds for termination under § 48.415(2), STATS., 4 and that Cynthia would enter a no contest plea to the petitions, with the dispositional hearing to be held in eight months. After hearing from the county's attorney, Cynthia's attorney, Cynthia and the GAL, the court accepted the pleas and entered a written order. The order included, among other provisions, a finding that there was good cause to postpone the dispositional hearing beyond the statutory time limits to assess the adoptability of the children and to develop potential adoptive placements and that this was in the children's best interests. Although not included in the written order, an additional reason for the eight-month delay was explained to the court by the county's attorney, Cynthia's attorney and the GAL. They stated that Cynthia felt she was motivated to make significant changes in her life and wanted the chance to persuade the court after eight months that it should not order termination because of the progress she had made.
On June 23, 1997, the county's attorney, the GAL, and Cynthia's attorney appeared before the court and joined in a request to have the court find good cause for extending the dispositional hearing an additional six months. The attorneys explained that Cynthia had met some of the conditions regarding participation in various programs and it was in the children's best interests to allow an additional six months to see if Cynthia would be able to successfully parent her children. The court found good cause to extend the time limits for the dispositional hearing and set it for December 11, 1997.
In late October 1997, the GAL asked for permission to withdraw because she had accepted employment outside the practice of law, and the court appointed Thomas Coaty as GAL on November 5, 1997.
On December 10, 1998, just prior to the dispositional hearing on December 11, 1997, 5 Ronee Bergman, the social worker who had been working with Cynthia since 1995, submitted a report recommending that Cynthia's parental rights to both children be terminated. The report stated that in the prior five months the reunification team had worked with Cynthia and the children to develop a plan to allow unsupervised visits with the children (Cynthia had had supervised visits in the past) and provide intensive services so that the children could be reunited with Cynthia. However, although Cynthia was cooperative, the team found her unable to learn the basic skills needed to provide a safe environment so that she could have unsupervised visits. The team was unable to help Cynthia develop a more substantial relationship with either child. They had to reduce visits with Toby because the visits were having a traumatic effect on him, and he has stated he did not want to see her. While Willie enjoyed the visits because Cynthia was able to play with him, he was not able to develop a parent-child relationship with her either.
The report stated that Willie and Toby had been in foster care since the ages of four years and eighteen months respectively and had no substantial relationship with their mother that would be detrimental to sever. They had benefited from the stability and nurturing atmosphere of their foster homes and each could stay in his foster home until an adoptive home was found. The likelihood of the children being adopted was good. The report concluded that Cynthia had not yet met the conditions for return of the children, and, given her inability to benefit from the intensive services provided, there was no reason to believe she would be able to do so in the future.
Bergman's testimony elaborated on aspects of her report. She testified that Cynthia had made progress in terms of AODA treatment and maintaining sobriety and that is why Bergman had recommended that the reunification team work with Cynthia to help her develop a relationship with her children. Based on conversations with Willie's therapist, she testified that the increased visits with Cynthia had caused some distress for Willie and an increase in some of his problem behaviors. In her view, Willie would be able to form a bond with an adoptive family. She also testified about the inability of Cynthia to appropriately parent her two older children, who were in foster care.
Leslie Wilmot, who was a social worker with the reunification team that was assigned to work with Cynthia, testified that the goal when she began working with Cynthia in July 1997 was to return the children to Cynthia's home. She described Willie's and Toby's history and special needs, the progress they were making in their current foster homes, and her visits with Cynthia when the children were at Cynthia's home. She explained that during a five-month time period, she would typically expect that the parent would be able to have unsupervised visitation and the number of those visits would be expanded. That had not happened with Cynthia because she was not able to demonstrate that she could provide a safe environment for the children or manage their behavior. As for Toby in particular, he was distressed by the visits. Wilmot opined that Cynthia had not made substantial progress in providing Willie and Toby...
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