Waukesha County v. Steven H.

• Decision Date: 24 March 2000
• Docket Number: No. 98-3033.,98-3033.
• Citation: 607 N.W.2d 607,2000 WI 28,233 Wis.2d 344
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS OF BRITTANY ANN H., a Person Under the Age of 18: WAUKESHA COUNTY, Petitioner-Respondent-Petitioner, John J. GRAU, Guardian ad Litem, Petitioner, v. STEVEN H., Respondent-Appellant.
• Court: Wisconsin Supreme Court

233 Wis.2d 344

2000 WI 28

607 N.W.2d 607

IN RE the TERMINATION OF PARENTAL RIGHTS OF BRITTANY ANN H., a Person Under the Age of 18:

WAUKESHA COUNTY, Petitioner-Respondent-Petitioner, John J. GRAU, Guardian ad Litem, Petitioner, v. STEVEN H., Respondent-Appellant.

No. 98-3033.

Supreme Court of Wisconsin.

Oral argument November 4, 1999.

Decided March 24, 2000.

For the petitioner-respondent-petitioner there were briefs and oral argument by Anton S. Jamieson, assistant corporation counsel.

For the petitioner there were briefs by John J. Grau and Grau Law Office, Waukesha and oral argument by John J. Grau.

For the respondent-appellant there was a brief by Thomas K. Voss and Love, Voss, Murray & Goeschko, Waukesha and oral argument by Thomas K. Voss.

¶ 1. SHIRLEY S. ABRAHAMSON, C.J.

This is a review of an unpublished decision of the court of appeals, In re the Termination of Parental Rights of Brittany Ann H., No. 98-3033, unpublished slip op. (Wis. Ct. App., Feb. 24, 1999), reversing an order of the Circuit Court for Waukesha County, J. Mac Davis, Judge. The circuit court order terminated the parental rights of Steven H. to his daughter Brittany. The court of appeals reversed the termination order because some orders removing Brittany from her home did not include the written notice prescribed by Wis. Stat. § 48.356(2) (1997-98).¹ The court of appeals held that Steven H.'s trial counsel's failure to object to the deficient orders amounted to ineffective assistance of counsel.² ¶ 2. Two issues are presented: (1) Do Wis. Stat. §§ 48.356(2)³ and 48.415(2)⁴ require that each and every order placing a child outside his or her home contain the written notice prescribed by § 48.356(2) in order for the termination of parental rights to proceed? The written notice is to describe any grounds for termination of parental rights under Wis. Stat. § 48.415 that may be applicable and the conditions necessary for the child to be returned to the home. The issue is whether the termination of parental rights petition must be dismissed because one or more orders failed to contain such notice. (2) Did the circuit court violate Wis. Stat. § 48.422(3) in conducting the hearing on the petition to terminate parental rights by failing to hear testimony in support of the allegations in the petition, and, if so, was Steven H. prejudiced by the circuit court's error?

¶ 3. We hold that Wis. Stat. §§ 48.356(2) and 48.415(2) do not require that each and every order removing a child from his or her home contain the written notice prescribed by § 48.356(2) in order for the termination of parental rights to proceed. We conclude that Wis. Stat. §§ 48.356(2) and 48.415(2) require that the last order specified in § 48.356(2) placing a child outside the home, which must be issued at least six months before the filing of the petition to terminate parental rights, must contain the written notice prescribed by § 48.356(2). This interpretation of §§ 48.356(2) and 48.415(2) ensures that a parent receives the written notice required by § 48.356(2) in a timely manner and does not vitiate a termination of parental rights proceeding when one or more previous orders fails to contain the statutorily prescribed written notice. Although we conclude that the petition to terminate parental rights need not be dismissed because of the failure of an order in this case to contain the prescribed notice, the better practice is to include the written notice required by § 48.356(2) in all orders to which that statute applies.

¶ 4. Regarding the second issue presented, although the circuit court erred by failing to follow Wis. Stat. § 48.422(3), we conclude on review of the entire record and the totality of the circumstances that Steven H. was not prejudiced by the error. Accordingly, we reverse the decision of the court of appeals.

¶ 5. This case illustrates that the legislature has created numerous procedures to protect parents from the state precipitously or capriciously terminating parental rights. Although the goal of assisting and protecting parents is important, the legislature has instructed courts that the best interests of a child are paramount, that impermanence in family relationships is contrary to the welfare of a child and that more timely decisions about the fitness of parents are needed. Wis. Stat. § 48.01(1)(a). This case involves reading the statutes with these legislative purposes in mind.

I

¶ 6. The relevant facts are set forth below. Brittany was born in February 1995. Waukesha County immediately filed a petition alleging that Brittany was a child in need of protection or services. Proceedings on this petition were held in March and April of 1995. Brittany's mother attended these proceedings; Steven H., Brittany's father, did not. In April 1995, the circuit court left Brittany in her mother's care but approved conditions of supervision for the mother.

¶ 7. In November 1995, upon finding that Brittany's mother was using crack cocaine, Waukesha County filed an emergency change of placement petition with the circuit court. The circuit court first ordered Brittany placed with her paternal grandparents and subsequently transferred Brittany to a foster home. Neither of these 1995 orders changing placement of the child included notice to the parents that they were in danger of having their parental rights terminated.

¶ 8. In March 1996 the circuit court extended the order placing Brittany outside of her home. This written order was sent to both parents and included conditions the parents were required to meet in order for Brittany to be returned to their care. The written order also included a notice that the parents were in danger of having their parental rights terminated. Both parents were in court when this order was issued and, in addition to the written notice, the circuit court gave the parents an oral warning that their parental rights were in danger of being terminated and of the conditions necessary for Brittany's return.⁵

¶ 9. In May 1996 Steven H. was incarcerated and sentenced to serve a five-year prison term. In April 1997 Waukesha County petitioned to terminate the parental rights of both parents on the grounds that Brittany was in continuing need of protection or services pursuant to Wis. Stat. § 48.415(2)(a), (b) and (c), or, alternatively under § 48.415(1)(a)2, that both parents had abandoned her. Brittany's mother did not contest this petition. Steven H. did, however, enter a contest plea and requested a jury trial.

¶ 10. In November 1997 Steven H. moved to dismiss the petition seeking termination of his parental rights, alleging he had not been given the written notice prescribed by Wis. Stat. § 48.356(2). This motion related only to the original dispositional order of April 1995, which set forth the conditions for supervision of Brittany's mother while Brittany was still in the mother's home. Steven H.'s motion to dismiss did not refer to the subsequent orders that placed Brittany in her grandmother's home and in a foster home, neither of which contained the written notice prescribed by § 48.356(2). The circuit court denied the motion to dismiss, concluding that the April 1995 order did not remove Brittany from the parental home and therefore did not require the § 48.356(2) written notice.

¶ 11. In December 1997 Steven H. decided not to contest the fact-finding hearing in the termination of parental rights proceeding and the county agreed to drop the abandonment ground for terminating parental rights. The termination of parental rights proceeding continued only on the ground that the child had been adjudged to be in continuing need of protection or services.

¶ 12. In February 1998 Steven H. requested and received an adjournment until April 1998 for the contested dispositional hearing. Steven H. anticipated his release from incarceration by the April date and hoped that he would be more capable of demonstrating his parental fitness. He was not, however, released from prison.

¶ 13. Approximately two weeks prior to the hearing, Steven H.'s attorney moved to withdraw from the case at Steven H.'s request. The circuit court denied this request because the case had already been subject to numerous delays. On April 8, 1998, Steven H.'s parental rights were terminated.

¶ 14. Steven H. then filed for post-judgment relief, asserting ineffective assistance of counsel and the inadequacy of the circuit court's colloquy with him regarding the waiver of his right to a fact-finding hearing on the petition to terminate parental rights pursuant to Wis. Stat. § 48.422. The circuit court held a Machner hearing⁶ and denied Steven H.'s motion.

¶ 15. On Steven H.'s appeal, the court of appeals reversed the circuit court order, concluding that D.F. v. Juneau County Department of Social Services, 147 Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988), requires that each and every order placing a child outside his or her home must contain the written notice prescribed by § 48.356(2) in order to establish grounds under § 48.415(2)(a) for the involuntary termination of parental rights. The court of appeals held that the failure to object to this deficiency amounted to ineffective assistance of counsel. The court of appeals expressed reluctance to reverse the circuit court order but considered the D.F. case controlling. The court of appeals urged this court to consider overturning the D.F. case or holding that substantial compliance with Wis. Stat. § 48.356(2) is sufficient.

II

[1]

¶ 16. The first issue before this court is whether Wis. Stat. §§ 48.356(2) and 48.415(2) require that each and every order placing a child outside his or her home contain the written notice prescribed by § 48.356(2) in order for the termination of parental rights to proceed. The written notice is to describe any grounds for termination of parental rights under Wis. Stat. § 48.415 that may be applicable and the conditions necessary for the child to be returned to the...