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TPR – Grounds: “Reasonable Effort” Obligation of Responsible Agency, § 48.415(2)(a)2b

State v. Elbert H., 2012AP446 / State v. Stacee P., 2012AP169, District 1, 6/12/12

court of appeals decision (1-judge, ineligible for publication); for Elbert H.: Devon M. Lee, SPD, Madison Appellate; case activity; for Stacee P.: Gregory Bates; case activity

The relevant agency’s responsibility to make a reasonable effort to provide court-ordered services encompasses post-petition activity:

¶8        Stacee P.’s contention that the proof of “reasonable effort” are limited to activities antedating the petition is belied by the statute, which as we have seen, asks the jury to determine for two time periods a parent’s compliance with the court-ordered conditions:  (1) the time before the petition’s filing date, and (2) the nine-month period following the trial.  Wis. Stat. § 48.415(2)(a)3. Thus, as we have seen and as the trial court pointed out, whether the agency has, since the petition’s filing, continued to help the parent to meet the conditions of return is a factor that the jury must consider. …

¶9        Further, the rules of civil procedure govern termination-of-parental-rights proceedings, Door County Department of Health & Family Services v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167, 170 (Ct. App. 1999), and if Stacee P. believed that evidence of the agency’s “reasonable effort” was such that she could not be faulted for her pre-petition failure to meet the conditions of return, she should have either moved for a directed verdict or for a new trial.  See Wis. Stat. Rules 805.14(4) (“In trials to the jury, at the close of all evidence, any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict or dismissal or by moving the court to find as a matter of law upon any claim or defense or upon any element or ground thereof.”); 805.15(1) (“A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice.”).  She did not, and thus forfeited the right to challenge now the sufficiency of the evidence of the agency’s pre-petition efforts.  See Kubichek v. Kotecki, 2011 WI App 32, ¶23, 332 Wis. 2d 522, 542, 796 N.W.2d 858, 868; Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354, 362 (Ct. App. 1987).

TPR – Evidence of Criminal History 

Evidence of a parent’s criminal history deemed relevant to meeting court-ordered conditions for return of children:

¶16      As the trial court pointed out, things that Elbert H. did and the way that he lived are highly relevant to his ability and willingness to properly care for the children.  See La Crosse County Department of Human Services v. Tara P., 2002 WI App 84, ¶13, 252 Wis. 2d 179, 187, 643 N.W.2d 194, 198 (“It is readily apparent that a history of parental conduct may be relevant to predicting a parent’s chances of complying with conditions in the future, despite failing to do so to date.”).  Thus, Shakespeare observed, the past is often prologue.  The Tempest, Act II, sc. I.  The trial court did not erroneously exercise its discretion in permitting the jury to see how Elbert H. lived his life and how that affected where he placed his children on the spectrum of what he deemed important and where he would likely place them in the future.

Directed Verdict 

¶17      Elbert H. also claims that the trial court should not have in essence granted a directed verdict as to whether the children were, as recited by the verdict-form questions that the trial court answered “yes.”:  (1) “adjudged to be in need of protection or services and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law” and (2) “placed, or continued in a placement, outside the Elbert H[.] home pursuant to a court order which contained the termination of parental rights notice required by law.”  The law, however, permits directed verdicts in termination-of-parental-rights cases, thus taking issues from the jury and depriving a parent of a jury trial on those issues, when there is no dispute about the evidence. See Scott S., 230 Wis. 2d at 465, 602 N.W.2d at 170.  Further, a court may take judicial notice of its own records.  Wis. Stat. Rule 902.01. See Teacher Retirement System of Texas v. Badger XVI Limited Partnership, 205 Wis. 2d 532, 540 n.3, 556 N.W.2d 415, 418 n.3 (Ct. App. 1996) (court files are subject to judicial notice).  Elbert H. did not and does not on appeal challenge the accuracy of the orders underlying the trial court’s answers.  This, of course, is what makes this case different than Manitowoc County Human Services Department v. Allen, 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842, upon which Elbert H. relies.  See id., 2008 WI App 137, ¶2, 314 Wis. 2d at 102–103, 757 N.W.2d at 844 (Trial court may not answer a jury-verdict question on an element based only on a lawyer’s stipulation unless the client agrees, and although “the element in consideration is a ‘paper’ element, the required documentary evidence is missing from the record, and the evidence adduced is not so ‘ample’ as to make the element ‘undisputed and undisputable.’”).  There was no error.

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