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TPR – Severance; IAC – Lack of Prejudice; Grounds: Failure to Assume Parental Responsibility – Constitutionality

Oneida County Department of Social Services v. Amanda H, 2011AP2600, District 3, 5/15/12

court of appeals decision (1-judge, not for publication); for Amanda H.: Shelley Fite, SPD, Madison Appellate; case activity; companion case: Oneida County Department of Social Services v. Scott H., 2011AP2599

TPR – Severance 

On joint trial for termination of parental rights, Scott’s disruptive conduct didn’t necessitate grant of severance motion by Amanda. United States v. Mannie, 509 F.3d 851, 852 (7th Cir. 2007) (new trial based on co-defendant’s behavior which included physically attacking his attorneys in front of, and staring menacingly at, the jury), distinguished.

¶14      Amanda recognizes the co-defendant’s behavior in Mannie was more threatening and violent than Scott’s behavior at trial.   Nevertheless, she asserts Scott’s actions were more prejudicial because of the information he revealed—specifically, he volunteered information about going to prison and seemed to indicate their daughters had been neglected.  She contends the jury instructions in this case did not cure any prejudice because they did not address Scott’s prejudicial revelations or his misbehavior.

¶15      We conclude the circuit court did not err by failing to grant Amanda’s severance motions.  First, any prejudicial effect Scott’s behavior or his prison revelation had on Amanda was cured by the jury instructions. “Jurors are presumed to have followed jury instructions.”  State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780.  In this case, the court instructed the jury at the beginning and at the end of trial that it was required to consider the evidence against each parent separately and its verdict as to one parent should be made without regard to the other parent.

¶16      Second, although Scott’s reference to his daughters was inappropriate, we conclude that, when viewed in the context of the entire trial, Amanda was not substantially prejudiced by this information.  Other witnesses indicated during their testimony that Amanda and Scott had children placed outside the home or that there were conditions in place to return the children to Amanda and Scott.

TPR – IAC – Lack of Prejudice 

The court rejects on ground of lack of prejudice, Amanda’s claim of ineffective assistance of counsel, based on counsel’s stipulation that certain documents (referencing Scott’s misconduct) could be reviewed by the jury during deliberations.

¶19      We conclude that, irrespective of whether Amanda’s trial counsel was deficient for allowing that information to go to the jury, Amanda was not prejudiced by this information.  First, the information was, for the most part, cumulative to other trial evidence.  For example, during trial, Scott admitted he had been in prison and multiple witnesses testified about their observations of Scott’s angry behavior, including that it had been directed toward Amanda.  Moreover, the jury was aware Amanda had other children who had been removed from the home, and that, at least until the end of 2010, the County did not consider Amanda’s house clean or safe for Daman.  During one visit, there were burner grates, coins, food pieces, lighters, and a bag of tobacco on the floor, dirty dishes on the counter, uncovered food on the stove, and the cat litter box was “quite dirty.”  As to the statement from Scott’s probation agent, the agent was questioned about this information at trial and, although she could not recall making those observations, she explained, “If I reported it to [case worker Brenda] Vandenberg, then it’s probably accurate.”  Finally, multiple witnesses testified that Daman was doing well in foster care, and case worker Anne Foster testified Amanda had not met the conditions for return.

¶20      Second, there was ample evidence in the record to support the jury’s determination that Daman continued to be a child in need of protection or services.  Daman had been in foster care his entire life.  Two of Amanda’s ordered conditions for Daman’s return were that she go to counseling and attend visits with Daman.  Amanda met with her therapist one time in June 2010 and, while more appointments were scheduled, she never returned.  Although she testified that she intended to attend counseling within the next nine months, at the time of trial, it had been almost one year since Amanda originally met with her therapist and never followed up.  Further, the case workers testified that Amanda cancelled many visits with Daman during 2010 and 2011 and her excuses ranged from illness, to working at a rummage sale, to having tech support come to her house.  One time after Amanda cancelled a visit for an illness, a case worker then observed her at the grocery store.  Amanda has not undermined our confidence in the jury verdict.  See Strickland, 466 U.S. at 694.

TPR – Grounds: Failure to Assume Parental Responsibility – Constitutionality 

¶21      Amanda’s remaining arguments relate to the failure to assume parental responsibility ground.  She contends her trial counsel was ineffective for failing to request a modified jury instruction for that ground, and the ground is unconstitutional as applied.  However, Wis. Stat. § 48.415 only requires a finding on one termination of parental rights ground.  Because the jury found grounds to terminate Amanda’s parental rights based on a continuing CHIPS, we need not address her arguments related to failure to assume parental responsibility.  See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues needs to be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“cases should be decided on the narrowest possible ground”).

¶22      Amanda, however, argues that the two errors surrounding the failure to assume ground were so prejudicial that it made that ground a “slam dunk” for the County.  She contends that, as a result, the “jury had no incentive to deliberate fully on the continuing-CHIPS ground.”

¶23      We disagree.  The jury requested a list of court-ordered services so that it could answer one of the special verdict questions on the continuing CHIPS ground.  This implicitly shows the jury was in fact deliberating the continuing CHIPS ground.  Moreover, the jury was instructed to “consider the evidence as to each ground separately,” and is presumed to have followed that instruction.  See LaCount, 310 Wis. 2d 85, ¶23.

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