Waushara Cnty. Dep't of Human Servs. v. A. M. S. (In re J.C.M.S.)

1

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.C.M.S., A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, v. A. M. S., RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO Z.S., A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, v. A. M. S., RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO D.M.S., A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, v. A. M. S., RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO I.R.V.E., A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, v. A. M. S., RESPONDENT-APPELLANT.

Nos. 2024AP730, 2024AP731, 2024AP732, 2024AP733

Court of Appeals of Wisconsin, District IV

October 3, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEALS FROM ORDERS OF THE CIRCUIT COURT FOR WAUSHARA COUNTY NOS. 2022TP5, 2022TP6, 2022TP7, 2022TP8 GUY D. DUTCHER JUDGE.

BLANCHARD, J. ^[1]

¶1 This is a consolidated appeal of circuit court orders that terminated A.M.S.'s parental rights to four of her children, granting petitions brought by the Waushara County Department of Human Services. A.M.S. challenges rulings made during the grounds phase, in which a jury returned verdicts in favor of the Department. A.M.S. specifically contends that the court erred in making evidentiary rulings that prevented her from eliciting testimony regarding: a grievance that A.M.S. filed with the Department against some Department personnel; and A.M.S.'s past personal experiences including the fact that she herself had been deemed a child in need of protective services. A.M.S. further argues that she is entitled to a new trial on the grounds phase because her trial counsel rendered ineffective assistance during that phase. I reject each of these arguments and accordingly I affirm the orders of the circuit court.

BACKGROUND

¶2 The termination of parental rights proceedings at issue in this appeal are based on earlier "CHIPS" cases for the children referenced in the caption of this appeal.^[2] In the CHIPS cases, the circuit court issued dispositional orders in November 2020 removing the children from the home of A.M.S. The dispositional order regarding the oldest child only was revised in February 2021. The dispositional orders for all four children were revised in February 2022. Each of the initial and revised dispositional orders contained conditions that needed to be met before the children could be returned to A.M.S.'s home. These orders also directed the Department to "make reasonable efforts to provide services" to A.M.S. "that assist [her] in meeting the conditions" to return the children, either by directly providing services to her or by referring her to one or more service providers not employed by the Department.

¶3 In December 2022, the Department filed petitions to terminate A.M.S.'s rights to the children.^[3] For each petition, the Department alleged the "continuing CHIPS" grounds as the sole basis for termination. See Eau Claire Cnty. DHS v. S.K, 2020 WI.App. 39, ¶1 n.3, 392 Wis.2d 726, 946 N.W.2d 155; WIS. Stat. § 48.415(2). This was based in part on the Department's factual allegations that: each child had remained placed outside of A.M.S.'s home for a cumulative total of more than six months following the issuance of the CHIPS orders in November 2020; the Department "made reasonable efforts to provide" A.M.S. services ordered by the CHIPS court; and A.M.S. failed to meet several of the conditions set by the CHIPS orders for return of the children to A.M.S.'s home. See § 48.415(2)(a).^[4]

¶4 In October 2023, a jury trial was held regarding the grounds alleged in the termination of parental rights petitions. See WIS. STAT. §§ 48.415 [intro], 48.424(1)(a). The Department called A.M.S. as a witness. The Department also called six Department employees, including multiple social workers who worked with A.M.S. during the pertinent period of out-of-home placement for her children, along with supervisors of those social workers.

¶5 During A.M.S.'s cross-examination of one of the Department supervisors, A.M.S. attempted to elicit testimony regarding the effects that out-of- home placement can have on CHIPS children generally and regarding A.M.S.'s background as a former CHIPS child. The circuit court sustained objections by the Department and guardian ad litem based on lack of relevance and foundation.

¶6 Later during the trial, counsel for A.M.S. recalled A.M.S. to the stand. Trial counsel sought to elicit testimony from her about her past interactions with the child protective services system. The Department objected based on a lack of relevance, and the circuit court sustained this objection. The court further ruled that A.M.S. could not testify regarding her "interactions with the [Department" or other "authorities" that occurred before the initiation of the cases involving her children.

¶7 A.M.S. further sought to call a Department employee who served as a "grievance officer" for the Department. This person investigates grievances of the type that A.M.S. filed in these cases. The Department and guardian ad litem for the children objected. Trial counsel for A.M.S. provided a proffer to the circuit court about the testimony she sought to elicit and conducted a voir dire of the prospective witness. The court sustained the objections and excluded the grievance officer's proffered testimony. A.M.S. did not call any additional witnesses.

¶8 The jury returned verdicts that the Department met its burden regarding each of the elements of the continuing CHIPS ground for each of the children. As a result, the circuit court found A.M.S. unfit as a parent for each child.

¶9 The circuit court held a hearing to determine whether to terminate A.M.S.'s parental rights regarding the children. The court found that it was in the best interests of the children to terminate A.M.S.'s parental rights, and entered orders to that effect.

¶10 In June 2024, A.M.S. filed a post-disposition motion for a new grounds phase trial. The basis of the motion was A.M.S.'s claim that she received ineffective assistance of trial counsel. Specifically, she argued that her trial counsel performed deficiently in making an inadequate offer of proof in support of the admission of the grievance officer's proffered testimony. A.M.S. argued that this prejudiced her because it led to the circuit court excluding the officer's proffered testimony, which she contended deprived her of evidence that was significant to her defense and that would counter part of the Department's case.

¶11 The circuit court held a postdisposition hearing at which A.M.S.'s trial counsel testified as the sole witness. The court rejected A.M.S.'s ineffective assistance arguments and denied the motion for a new trial. A.M.S. appeals.

DISCUSSION

¶12 A.M.S. challenges the circuit court's evidentiary rulings during the grounds phase trial to exclude the grievance officer's proffered testimony and to limit her ability to elicit testimony regarding her experiences as a child in need of protection and services. A.M.S. further argues that the court erred in rejecting her post-disposition contention that her trial counsel was ineffective in arguing for the admission of the grievance officer's proffered testimony.

I. Exclusion of Evidence

¶13 Circuit court decisions to admit or exclude evidence are reviewed under an erroneous exercise of discretion standard. See La Crosse Cnty. DHS v. Tara P., 2002 WI.App. 84, ¶6, 252 Wis.2d 179, 643 N.W.2d 194 (citing Morden v. Continental AG, 2000 WI 51, ¶81, 235 Wis.2d 325, 611 N.W.2d 659). Appellate courts "will not upset a circuit court's decision to admit or exclude evidence if the decision has 'a reasonable basis' and was made 'in accordance with accepted legal standards and in accordance with the facts of record.'" See id. (quoted source omitted).

¶14 Each of the evidentiary challenges brought by A.M.S. relate to the relevancy of particular pieces of testimony to the issues raised in the grounds phase trial. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See WIS. STAT. § 904.01; Tara P., 252 Wis.2d 179, ¶13. Here, to repeat, the sole ground pursued by the Department was "continuing CHIPS," and A.M.S. disputed at trial only one element that is needed to prove this ground. Thus, the facts of consequence in these cases all related to the following question: Did the Department make a "reasonable effort to provide the services ordered by the court" in the CHIPS orders? The legislature has defined "reasonable effort" in this context to mean:

an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child ..., the level of cooperation of the parent ... and other relevant circumstances of the case.

WIS. STAT. § 48.415(2)(a)2.a.; see also WIS JI-CHILDREN 324.

¶15 Thus, at the trial here, evidence that was relevant to the only disputed topic, whether the Department made a "reasonable effort," was "generally admissible." See WIS. STAT. § 904.02. At the same time, a circuit court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." See WIS. STAT. § 904.03.

A. Exclusion of Grievance Officer's Proffered Testimony

¶16 The circuit court excluded proffered testimony by the Department grievance officer on the...