Preview:

COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 16, 1999
A  party  may  file  with  the  Supreme  Court  a
petition  to  review  an  adverse  decision  by  the
Marilyn L. Graves
Court of Appeals.   See § 808.10 and RULE 809.62,
Clerk, Court of Appeals
STATS.
of Wisconsin
Nos.  99-2136
99-2137
STATE OF WISCONSIN                                      IN COURT OF APPEALS
DISTRICT IV
NO. 99-2136
IN RE THE TERMINATION OF PARENTAL RIGHTS TO
NICHOLAS E-D, A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HEALTH AND FAMILY
SERVICES,
PETITIONER-RESPONDENT,
V.
FREDERICK L. E.,
RESPONDENT-APPELLANT.
NO. 99-2137
IN RE THE TERMINATION OF PARENTAL RIGHTS TO
CAMERON E-D, A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HEALTH AND FAMILY
SERVICES,
PETITIONER-RESPONDENT,




Nos. 99-2136
99-2137
V.
FREDERICK L. E.,
RESPONDENT-APPELLANT.
APPEAL  from  an  order  of  the  circuit  court  for  Dane  County:
ROBERT R. PEKOWSKY, Judge.   Affirmed.
¶1                                                                                      DYKMAN, P.J.1    Frederick L.E. appeals from an order terminating
his parental rights to Nicholas E-D and Cameron E-D, his five- and six-year-old
non-marital children.    He asserts that his Fourteenth Amendment Due Process
right was infringed because social workers testified that he behaved appropriately
with his children, and because the trial court suggested that his mother might be an
appropriate person to adopt his children.   He also asserts that the Dane County
Department of Social Services failed to make a diligent effort to provide him with
services, thereby violating his Fourteenth Amendment Due Process and Equal
Protection rights.   Finally, he claims that the trial court erred when it terminated
his parental rights despite his mother’s interest in adopting his children, and that
there were less extreme alternatives available to the trial court.
¶2                                                                                      We conclude that no constitutional violations occurred.    We also
conclude that Frederick L.E. cannot assert error in the fact-finding hearing because
he pleaded no contest to the State’s complaint alleging that he was an unfit father.
Accordingly, we affirm.
1  This appeal is decided by one judge pursuant to § 752.31(2)(e), STATS.
2




Nos. 99-2136
99-2137
¶3                                                                                         Frederick  L.E.  and  Jerleen  M.D.  lived  together.    They  had  two
children,  Nicholas  E-D,  born  February                                                  26,                                                                        1993  and  Cameron  E-D,  born
October 22, 1994.   Frederick L.E. tells us that Nicholas E-D was adjudicated a
child in need of protection and services in February 1994, and Cameron E-D was
so adjudicated in March 1997.   On December 11, 1995, Frederick L.E. left the
household.   A social worker testified that after he left, Frederick L.E. was difficult
to find.   He attempted to contact Frederick L.E. but was only partly successful.  He
kept open his offer of  services to Frederick L.E. but Frederick L.E. gave no
indication  that  he  would  like  to  use  those  services.    The  services  included
individual  therapy,  an  AODA  assessment,  Alternatives  to  Aggression,  and
visitation with his children.   In January of 1997, Dane County took emergency
custody of both children, and they were placed in foster care.   In April of 1998,
Dane  County  petitioned  for  the  termination  of  both  parents’  parental  rights.
Jerleen  M.D.  consented  to  the  termination,  but  Frederick  L.E.  contested  it.
However,  on  the  date  set  for  trial  of  Dane  County’s  petition,  Frederick  L.E.
pleaded no-contest to the petition, leaving only the issue of disposition.   The trial
court held a hearing on this issue, concluded that termination of parental rights
was in the children’s best interests, and entered orders terminating both parents’
parental rights.  Frederick L.E. appeals.
¶4                                                                                         Section 48.426,  STATS.,  sets  out  the  standard  for  termination  of
parental rights and the factors the trial court should consider in deciding whether
or not to terminate a parent’s parental rights.   The standard is the best interests of
the child, and § 48.426(3) lists the factors the trial court is to consider in making
this determination:
In considering the best interests of the child under
this section the court shall consider but not be limited to the
following:
3




Nos. 99-2136
99-2137
(a)   The  likelihood  of  the  child’s  adoption  after
termination.
(b)   The age and health of the child, both at the time
of the disposition and, if applicable, at the time the child
was removed from the home.
(c)   Whether the child has substantial relationships
with the parent or other family members, and whether it
would be harmful to the child to sever these relationships.
(d)   The wishes of the child.
(e)   The  duration  of  the  separation  of  the  parent
from the child.
(f)   Whether the child will be able to enter into a
more stable and permanent family relationship as a result of
the termination, taking into account the conditions of the
child’s   current   placement,   the   likelihood   of   future
placements and the results of prior placements.
¶5                                                                                        Our standard of review was explained in David S. v. Laura S., 179
Wis.2d 114, 150, 507 N.W.2d 94, 107 (1993) (citations omitted):
A  determination  of  the  best  interests  of  the  child  in  a
termination proceeding depends on first-hand observation
and experience with the persons involved and therefore is
committed to the sound discretion of the circuit court.   A
circuit court’s determination will not be upset unless the
decision represents an erroneous exercise of discretion.
¶6                                                                                        Frederick  L.E. cites State  v.  Turner,  136  Wis.2d  333,  344,  401
N.W.2d  827,  832  (1987), which holds that questions of constitutional fact are
subject  to  independent  review.    We  agree,  and  will  review  his  assertions  of
constitutional error de novo.   But even though termination of parental rights is
overlain by constitutional concepts, Stanley v. Illinois, 405 U.S. 645, 658 (1972),
we cannot apply a de novo standard of review to the trial court’s determination as
to the best interests of Frederick L.E.’s children in light of David S.   We are bound
by prior decisions of the supreme court.   See Livesey v. Copps Corp., 90 Wis.2d
577, 581, 280 N.W.2d 339, 341 (Ct. App. 1979).
4




Nos. 99-2136
99-2137
¶7                                                                                         Frederick  L.E.  asserts  that  his  right  to  due  process  of  law  was
violated by termination of his parental rights because social workers stated that he
behaved appropriately with his children and the trial court suggested that his
mother may be the appropriate person to adopt his children.
¶8                                                                                         There are two sections to Frederick L.E.’s due process argument,
and his first section has two parts.   First, Frederick L.E. cites four cases from
which he concludes that Dane County’s attempt to interfere with his parental
rights is subject to strict judicial scrutiny:   Santosky v. Kramer,  455 U.S.  745
(1982); Youngberg v. Romeo,  457 U.S.  307  (1982); Pierce v. Society of The
Sisters of The Holy Names of Jesus And Mary, 268 U.S. 510 (1925); and Meyer
v. Nebraska, 262 U.S. 390 (1923).   There is nothing in any of these cases which
has anything to do with “strict scrutiny.”   Strict scrutiny, or close scrutiny, is a
Fourteenth Amendment Equal Protection concept which holds that classifications
such as those based on nationality or race are subject to close judicial scrutiny.
See  Graham  v.  Richardson,  403  U.S.  365,  371-72  (1971).    Frederick  L.E.’s
attempt to mix and match constitutional principles is meritless.
¶9                                                                                         The second argument in this section asserts that because Frederick
L.E. positively impressed the social worker with the way he handled his children,
Dane County interfered with his constitutional liberty interest without sufficient
reason.   He cites no authority supporting this proposition.   We would be surprised
if any court has held that if a parent can demonstrate that on several occasions
during the parent’s children’s minority, the parent has behaved appropriately with
his or her children, the United States Constitution prohibits a termination of the
parent’s parental rights.   We have explained many times that argument without
citation to authority is inadequate, and that we will refuse to consider it.   See State
5




Nos. 99-2136
99-2137
v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 377-78 (Ct. App. 1980).   We
see no reason to depart from this holding now.
¶10    In the second section of Frederick’s due process argument, he asserts
that the legal standards and procedures safeguarding a termination of parental
rights proceeding were not properly applied.   But the only case he cites for this
proposition, T.M.F. v. Children’s Serv. Soc’y of Wisconsin, 112 Wis.2d 180, 332
N.W.2d 293 (1983), holds that a parent’s consent to the termination of her parental
rights must be voluntary and informed, and that the record did not support a
conclusion that the parent’s consent met that test.   We agree with the proposition
for  which  Frederick  L.E.  cites  T.M.F.,  that  each  parent  and  each  family  is
different, but we fail to see how that relates to the initial assertion that the trial
court somehow infringed upon Frederick L.E.’s right to due process of law.   Other
than the assertion of constitutional error, and the citation to T.M.F., Frederick L.E.
does  not  tie  anything  the  trial  court  did  or  did  not  do  to  any  authority that
demonstrates the trial court’s error.   This section of Frederick L.E.’s due process
argument is without merit.
¶11    Frederick L.E.’s reply brief raises different due process issues, but
he again cites no authority for his assertions.   He claims that due process required
that  his  no-contest  plea  be                                                                          “knowing  and  voluntary,”  and  that,  although  his
attorney failed to object to asserted revisions of Dane County’s pleadings, he now
objects.2   He claims, without citation to authority, that statutory requirements are
2  Citing Boykin v. Alabama, 395 U.S. 238 (1969) and Ernst v. State, 43 Wis.2d 661,
170 N.W.2d 713 (1969), Frederick L.E. claims that a court is required to determine and make a
record of the facts showing that there is a factual basis for a plea.  We agree that pleas in criminal
cases must be knowing and voluntary.   But Frederick L.E. does not explain his assertion.   How
this principle applies in civil cases and why the trial court’s November 23, 1998 inquiry was
insufficient are matters Frederick L.E. omits entirely from his brief.
6




Nos. 99-2136
99-2137
not waived by the lack of an objection.   The only case he cites in this section of his
brief is, ironically, Shaffer, 96 Wis.2d 531, 292 N.W.2d 370.   Because Frederick
L.E. raises this “knowing and voluntary” due process issue for the first time in his
reply brief, Dane County and the guardian ad litem had no opportunity to respond
to it.   Frederick L.E. fails to discuss the hearing of November 23, 1998, at which
his attorney questioned him about his understanding of Dane County’s petitions
and his understanding of his constitutional rights regarding a trial.    Frederick
L.E.’s attorney, the corporation counsel and the court also asked Frederick L.E.
questions concerning the voluntariness of his plea.
¶12    The record does not appear to support Frederick L.E.’s assertion that
Dane County’s petitions were amended.   It appears that Frederick L.E. pleaded no
contest to Dane County’s petitions filed on April 13, 1998.   He does not tell us
how the petition was amended, or where the amended petition is found.   He says
nothing about what he understood he was pleading to.   We do not address issues
raised  for  the  first  time  in  a  reply  brief.    See  Schaeffer  v.  State  Personnel
Comm’n, 150 Wis.2d 132, 144, 441 N.W.2d 292, 297 (Ct. App. 1989).   Nor do we
address issues not raised in the trial court.   See Vollmer v. Luety, 156 Wis.2d 1,
10, 456 N.W.2d 797, 801 (1990).                                                               “We cannot serve as both advocate and judge.”
State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992).   We
would have to do just that were we to consider Frederick L.E.’s newly raised and
unsupported claim.   Frederick L.E. is aware of our holding in Shaffer.   We see no
reason to depart from that holding here.
¶13    Frederick  L.E. makes other assertions in this section of  his first
argument, such as the asserted incongruity of the trial court’s comments to the
effect that Frederick L.E.’s mother seemed to be a nice person, and its decision to
cut off his children’s contact with her through a termination of parental rights and
7




Nos. 99-2136
99-2137
subsequent  adoption,  the  trial  court’s  observation  that  Frederick  L.E.  was  in
prison, and his claim that it is not unusual for African-American fathers to spend a
period of time in prison.   Again, he cites no authority holding that a trial court
denies a parent due process of law in this way, and we again refer him to Shaffer,
96 Wis.2d at 545-46, 292 N.W.2d at 377-78.
¶14    In  Frederick  L.E.’s  second  argument,  he  asserts  that  the  Dane
County Department of Human Services failed to meet the diligent effort standard
for him, although it met that standard for the mother of his children.   He concludes
that this failure violates the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States and Wisconsin Constitutions.
¶15    Again, Frederick L.E. fails to cite authority linking due process and
equal protection violations to his allegations about Dane County’s failures.   But
more importantly, the alleged failures pertain to matters which preceded the trial
court’s decision to terminate his parental rights.   Frederick L.E. correctly notes
that § 48.069(1)(c), STATS., requires Dane County to “[m]ake an affirmative effort
to obtain necessary or desired services for the child and the child’s family or for
the expectant mother of an unborn child and investigate and develop resources
toward that end.”   But this is part of the adjudication phase of a termination of
parental rights proceeding.   Section 48.415(2)(a)2.b, STATS., requires that, before
an  involuntary  termination  of  parental  rights  can  occur  on  the  ground  of  a
continuing need of protection or services, the agency responsible for the care of
the child and the family or of the unborn child and expectant mother make a
reasonable effort to provide services ordered by the court.
¶16    Frederick L.E. obviated the adjudicative phase of his termination of
parental rights proceeding by pleading no contest to the allegations in the petition.
8




Nos. 99-2136
99-2137
He could have challenged Dane County’s alleged failure to provide services and
he could have had a trial on the issue.   But, by pleading no contest, he waived the
right  to  challenge  Dane  County’s  assertion  that  it                                 “made  a  diligent  effort  to
provide services ordered….”   He also waived the right to contest Dane County’s
assertion that its social worker “discussed the available resources to provide Mr.
[L.E.] with individual therapy and Mr.  [L.E.] stated that he would contact the
discussed  agencies.”     A  guilty  plea,  voluntarily  and  understandingly  made,
constitutes a waiver of non-jurisdictional defects and defenses, including claims of
violations of constitutional rights prior to the plea.   See Mack v. State, 93 Wis.2d
287, 293, 286 N.W.2d 563, 566 (1980).   Frederick L.E. makes no claim that the
alleged failure of Dane County to offer him services was a defect going to the trial
court’s jurisdiction.   We conclude that Frederick L.E. has waived the  “diligent
effort” assertions that he makes in the second section of his brief.
¶17    In the last section of his brief, Frederick L.E. asserts that the trial
court erred by terminating his parental rights when it appeared that his mother was
likely to adopt his children, and when there were less extreme alternatives to
termination.   The standard and factors the trial court is to use in deciding whether
to terminate parental rights are found in  § 48.426, STATS.    Section  48.426(2)
provides,                                                                                 “The best interests of the child shall be the prevailing factor considered
by  the  court  in  determining  the  disposition  of  all  proceedings  under  this
subchapter.”   In Gerald O. v. Cindy R., 203 Wis.2d 148, 152, 551 N.W.2d 855,
857 (Ct. App. 1996), we held that the decision whether to terminate parental rights
is  discretionary.     Thus,  our  standard  of  review  is  whether  the  trial  court
erroneously  exercised  its  discretion  by deciding  to  terminate  Frederick  L.E.’s
parental rights.                                                                          “The trial court properly exercises its discretion when it examines
9




Nos. 99-2136
99-2137
the relevant facts, applies a proper standard of law and, using a demonstrated
rational process, reaches a conclusion that a reasonable judge could reach.”   Id.
¶18    The trial court considered that Frederick L.E.’s mother might adopt
his children.    His mother testified that,  “if it comes necessary,” she would be
interested in adopting them.   Frederick L.E. translates this into an “understanding”
that Frederick L.E.’s mother was the likely person to adopt the children.                 “If it
comes necessary” is a long way from an adoption.   Frederick L.E.’s mother had
not moved to Madison or Wisconsin, there is no evidence that she petitioned to
adopt the children and there is no evidence of any studies made to determine
whether  she  was  qualified  to  adopt  the  children.    The  evidence  showed  that
Frederick L.E. wanted the children to live with his sister, not his mother.   Despite
this,  Frederick  L.E.  asserts  that                                                     “[M]ost  ordinary  people  do  not  know  that
alternatives exist” as a reason for Frederick L.E.’s mother’s failure to petition to
be Cameron E-D and Nicholas E-D’s guardian.
¶19    Perhaps ordinary people do not know of alternatives to termination
of parental rights.   However, attorneys do, and Frederick L.E. was represented by
an attorney.   Had Frederick L.E. been as interested prior to trial in his mother
becoming his children’s guardian as he now is on appeal, he could easily have told
his attorney of her interest, and his mother could have been asked to file a petition
for  guardianship.     There  would  then  be  a  record  of  that  petition,  and  its
investigation and recommendations, rather than the blank pages we now face.
Frederick L.E. suggests, without citation to authority,   that the trial court and the
guardian ad litem had an obligation to ask the attorneys to look into alternatives to
termination of parental rights.   We decline the invitation to research this assertion.
See Shaffer, 96 Wis.2d at 545-46, 292 N.W.2d at 377-78.
10




Nos. 99-2136
99-2137
¶20    Frederick L.E. claims it is absurd to terminate his parental rights
when the children will still maintain a relationship with him through his mother.
But  no-one  can  adopt  Frederick  L.E.’s  children  until  his  parental  rights  are
terminated.   And the record shows that it is unknown whether his mother can or
will adopt the children.   The record does show that Dane County social workers
believed  that  the  children  were  adoptable,  and  were  young  enough  to  form
relationships with their adoptive parents.   The test is not whether the trial court
erred by terminating Frederick L.E.’s parental rights but whether it erroneously
exercised its discretion.
¶21    The  trial  court  determined  that  Frederick’s  children  needed
permanency, someone to take care of them and be there for them, and to stop
being “bounced around.”   The trial court determined that Frederick L.E., whose
credibility the trial court questioned, was overly optimistic about his chances of
making a new life after he was released from prison.   Though the trial court was
sympathetic, it concluded that “there is just not enough here, it’s woefully short of
anything I could rely on for these little kids.”   The record shows that Frederick
L.E.’s conduct justified the trial court’s lack of confidence in him.   After he left
the family in December of 1995, Frederick L.E. lived the life of a vagabond.   He
was ordered to support his children but did not do so and was held in contempt of
court.   He was to contact his social worker and keep him informed of his address,
place of employment and telephone number.   However, he disappeared for awhile
and was evasive about where he lived.   He denied the need for individual therapy,
and did not apply for it.   He was to establish a source of income, manage his
finances, and obtain a residence.    But he stole from his employer, passed bad
checks and was sentenced to four years in prison.   He was given the opportunity to
11




Nos. 99-2136
99-2137
visit with his children.   But he did not see them after he left the household in
December of 1995.
¶22    Frederick  L.E.  claims  that  there  were  less  drastic  alternatives  to
termination of parental rights available to the court, and suggests that his mother
could have been appointed the children’s guardian.   But this procedure would have
left  the  children  without  the  permanency and  stability  that  the  social  worker
testified they needed, and the trial court found they needed.   Frederick L.E. has
furnished us with no authority requiring the trial court to chose the least drastic
disposition, and such a rule would remove the discretion given to the trial court by
the legislature.   The trial court is to chose between dispositions, and is not required
to choose the least drastic one.
¶23    Frederick L.E.’s reply brief addresses other issues or other matters
under   headings   entitled                                                                “CHILD   SUPPORT,”   “INCARCERATION”   and
“OTHER  ISSUES.”    Much  of  these  sections  are  suggestions  for  changes  in
termination of parental rights statutes or policy, and we do not address them.
Some of the suggestions are more akin to closing arguments to a jury or a trial
court  than  to  appellate  argument.    Some  sections  repeat  arguments  we  have
previously rejected, and we do not address those argument again.   The remainder
of these sections pertain to Frederick L.E.’s attempts to distinguish State v. Allen
M., 214 Wis.2d 302, 571 N.W.2d 872 (Ct. App. 1997) and Ann M.M. v. Rob S.,
176 Wis.2d 673, 500 N.W.2d 649 (1993).   We have not relied on these cases in
this opinion. Thus, whether they do or do not support Dane County’s position is
moot.
¶24    The trial court examined the facts we have repeated and which   we
conclude are relevant.   It applied a proper standard of law—the best interests of
12




Nos. 99-2136
99-2137
the  children.    It  used  a  rational  process  to  conclude  that  Frederick  L.E.  was
unreliable and would not be there for his children, and that his mother might be a
good adoptive parent, but that before she could adopt, Frederick L.E.’s parental
rights must be terminated.   We are confident in our conclusion that the trial court
did not erroneously exercise its discretion when it decided that the children’s best
interests required that Frederick L.E.’s parental rights be terminated.
By the Court.-Order affirmed.
                                                                                             Not recommended for publication in the official reports.   See RULE
809.23(1)                                                                                    (b)4, STATS.
13

Download 15877.pdf

Wisconsin Law