This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
¶ 1 B.H. appeals orders terminating her parental rights to two children, B. and J. She asks this court to vacate the orders and either dismiss the petitions or remand the matter for a new fact-finding hearing.
¶ 2 This court concludes B.H. did not receive ineffective assistance of counsel because the evidence she challenges is admissible under applicable hearsay exceptions or is otherwise deemed not prejudicial because she has not shown that the trial court relied on it. This court also concludes that the record contains evidence sufficient to support the trial court's determination that there were grounds for termination given that the children were in continuing need of protection or services and that B.H. had failed to assume parental responsibility. See WIS. STAT. §§ 48.415(2) and (6). The orders are therefore affirmed.
¶ 3 B. and J., the twin daughters of B.H., were born in November 2012. In May 2013, child welfare authorities investigated a report of violence between B.H. and the babies' father, and as a result of that investigation, at the age of six months, the infants were placed in out-of-home care, and a protective plan was put into effect. From that point on, B. and J. were continuously in out-of-home care. Initial efforts by the Bureau of Milwaukee Child Welfare (BMCW) to implement intensive in-home services were not successful because the informal caregivers B.H. identified who were willing were unsafe, and the caregivers she identified who were safe were unwilling.
¶ 4 On June 20, 2013, CHIPS petitions were filed for B. and J. On September 3, 2013, CHIPS dispositional orders were entered as to each of the girls. On September 19, 2014, petitions were filed for termination of B.H.'s and the father's parental rights.
¶ 5 The matter was tried August 10-13, 2015.
First ground: Continuing need of protective services.
¶ 6 The trial court noted that as to the first ground—continuing need of protection or services—a couple of the required findings were not in dispute.
1. The trial court found B.H. failed to meet conditions for return.
¶ 7 The trial court, after noting that the question of compliance with conditions of return is considered as of the date the petition was filed, methodically went through the list of conditions set forth in the CHIPS order for B.H. along with each condition's corresponding list of goals. The court found that some conditions had been met but concluded that Condition 1, Goals 2 and 6, and Condition 3 had not been met. The court read each of those Conditions and Goals into the record in explaining its noncompliance conclusion as follows:
¶ 8 Regarding Condition 1, the CHIPS order explicitly states that Condition 1 requires B.H. to meet the Goals listed therein. As to Goal 2 the trial court found:
¶ 9 Regarding Condition 1, Goal 6, the trial court found:
¶ 10 Regarding Condition 3, the trial court found:
2. The trial court found that there was no substantial likelihood that B.H. would meet conditions for return within nine-months.
¶ 11 The court concluded there was not a substantial likelihood, defined as a real and significant probability, rather than a mere possibility, that the parents will meet the conditions for a safe return within nine months. The trial court then noted that B.H. had made some progress, but not to the level of substantial likelihood:
Second ground: Failure to assume parental responsibility.
¶ 12 The trial court then addressed the second ground for termination, the failure-to-assume grounds. The court summarized the evidence concerning the home environment and the history of the parents' care from pre-natal care onward, the history of violence and conflict, the developmental delays of the babies, the "hazardous living environment" that had been their home. The court noted that even shortly after the babies were removed from the home, the babies showed signs of improvement:
¶ 13 On August 18, 2015, the trial court entered orders terminating B.H.'s parental rights to B. and J. This appeal followed.
¶ 14 B.H. moved for permission to file a post-judgment motion and remand, which the court of appeals granted. At a hearing on B.H.'s motion, B.H. argued that she received constitutionally ineffective assistance of counsel because hearsay had been admitted without any objection to establish that the children had special needs, experienced developmental delays while in B.H.'s custody or improved while in foster care. B.H. argued she was prejudiced by this evidence. The evidence she disputed was as follows: (1) testimony of the foster mother about the girls' hearing loss and one girl's autism; (2) testimony of the foster mother about the girl's developmental delays and improvements; (3) testimony from a social worker about the children's developmental delays at the time of their initial detention; and (4) a letter from a social worker to B.H., written at the request of the court.
¶ 15 The post-judgment court rejected B.H.'s argument that the evidence was inadmissible and concluded that the disputed evidence was all admissible; the post-judgment court also concluded that the finding of two grounds for termination was supported by "competent evidence."
¶ 16 B.H. argues that the trial court erred in admitting certain hearsay testimony, and that she received ineffective assistance of counsel due to her trial counsel's failure to object to this prejudicial testimony. Relatedly she argues that the evidence at the grounds trial was insufficient to support unfitness because expert testimony was required to prove the grounds for termination under WIS. STAT. §§ 48.415(2) and (6).
I. B.H. is not entitled to a new fact-finding hearing because she did not receive ineffective assistance of counsel.
STANDARDS OF REVIEW
¶ 17 A parent in a termination of parental rights case is entitled to effective assistance of counsel.
¶ 18 We review the trial court's historical findings of fact under a clearly erroneous standard. We review whether counsel's performance was deficient and prejudicial independently.
¶ 19 B.H. argues that her trial counsel was ineffective for failing to object to four pieces of evidence: (1) testimony from the foster mother about the children's hearing loss and autism; (2) testimony from the foster mother about the children's developmental delays and improvements; (3) testimony of a social worker about the delays; and (4) a letter from a social worker to B.H. We address each in turn and conclude, like the post-judgment court, that there was no deficient performance and therefore B.H.'s claim fails the first prong of the
¶ 20 Because B. H.'s claim involves a challenge to the admissibility of evidence, several rules about evidentiary challenges should be noted before we proceed. First, in a trial to the court, even if evidence is improperly admitted, it is presumed that the error is harmless unless it is clear that, but for such evidence, the court's decision would probably have been different. See
¶ 21 Second, appellate review of evidentiary decisions is generally deferential: the decision regarding the admission of evidence rests in the trial court's discretion.
A. The foster parent's testimony about the children's special needs and their improvement in foster care was admissible.
¶ 22 B.H. argued that the foster mother's testimony with regard to the hearing loss of both children and B.'s autism diagnosis was inadmissible hearsay because she repeated a diagnosis made by others. Additionally, B. H argues that the foster mother is not an expert and expert evidence was required at trial to prove that either child suffered from hearing loss or autism. We disagree.
¶ 23 First we note that there is not any dispute about the children's medical diagnoses, and it was generally and repeatedly corroborated by the testimony of other witnesses. In her testimony, B.H. herself admitted that B. and J. both suffered hearing loss, and used hearing aids and sign language. B.H. testified that her daughter, B., was autistic. B.H. also testified that she had taken steps to learn to care for those conditions. She is therefore estopped from arguing that the foster mother's testimony about their conditions is inadmissible hearsay or that an expert was required at trial to establish the existence of the conditions and special needs. See
¶ 24 But even absent forfeiture of the issue, the foster mother's testimony on the children's special needs was admissible under WIS. STAT. §§ 908.03(8), 908.03(24), 907.01,
Therefore it rejected B.H.'s argument concerning the evidence from the social workers on the grounds that the evidence was admissible under WIS. STAT. § 908.03(8). We agree.
¶ 25 The Bureau's statements to the foster mother were exceptions to hearsay under WIS. STAT. § 908.03(8). The Bureau initial assessment worker made the initial assessment of the children's deafness. The Bureau then assigned the children to this particular foster mother because she was specially trained and had special experience as a treatment foster parent. The Bureau communicated the children's special needs to the foster parent as they must due to their legal obligation to assure the health and safety of children in their care. Thus, the statements about the health conditions and needs of children made to representatives of that child welfare agency fall under WIS. STAT. § 908.03(8).
¶ 26 As to the testimony of the foster mother about those statements of fact made to her from the Bureau workers, they are likewise admissible both because they were corroborated at trial by the Bureau workers and because they are otherwise trustworthy statements under WIS. STAT. § 908.03(24). Significantly, the general trustworthiness of these statements as to the special needs and improvements while in foster care were observed by and testified to by all of the other witnesses. Additionally, the foster mother was competent to testify to the children's special needs and development as a lay witness under WIS. STAT. § 907.01 due to her own training and experience as a treatment foster mother. Certainly, hearing loss, hearing aids and sign language are all readily observable to a lay person. She testified to her special training and had the unique experience of taking the children to all of their medical appointments and would have heard each treatment provider's diagnosis and treatment recommendations. No greater professional expertise than hers and the Bureau's was needed for the trial court to make sufficient findings of special needs and ability to provide safe and constant care to the children. The post-judgment court agreed and found that the testimony that concerned the children's medical conditions fell within WIS. STAT. §§ 907.01 or 907.02.
¶ 27 The court also described her as "a highly skilled treatment foster care provider." The Bureau lists her as a special needs foster home. According to the record, no placement was available within sixty miles of the children's home that could respond to all their issues and needs. A permanency plan filed in this case April 17, 2015, stated: "A Statewide search went out for a treatment foster care provider in January 2014. [The foster parent] came forward. . . . [The foster family is] also familiar in working with special needs children[.]"
B. The foster parent's testimony about the children's developmental test results and improvements was admissible.
¶ 28 With regard to the foster mother's testimony concerning the results of neonatal testing and medical checkups to which she had taken the children,
C. Social worker McLaughlin's testimony regarding developmental delays and subsequent improvement of B. and J. soon after removal from B.H.'s home is admissible under a hearsay exception.
¶ 29 Bureau initial assessment worker McLaughlin was the worker who assessed the children's needs at the time of their detention as deaf and suffering from developmental delays. She noted the babies could not roll over or hold a bottle at six months old, which she knew from her bachelor's degree in social work and specialized six month training at the Bureau to be delayed development.
¶ 30 B.H. does not really dispute the factual accuracy of the testimony of the social worker; she just disputes her level of expertise and competence to testify as to infant development. For the same reasons that the foster parent's testimony concerning the children's medical conditions is admissible, this testimony is also admissible. It is for the finder of fact to determine the weight of this evidence and to determine what the cause of the delays is and the likely cause of the improvement. It was not deficient performance for trial counsel not to object to the social worker's testimony.
D. We presume that even if the letter from social worker Conley detailing the things B.H. was supposed to do is inadmissible, it did not make the difference in the trial court's decision.
¶ 31 The trial court requested that Bureau worker Conley provide the court with a letter of what services and behavioral changes were necessary for B.H. to have unsupervised or partially supervised visits. She provided the letter pursuant to court order. This alone excepts it from a hearsay prohibition. But even if it did not, the letter falls under the "otherwise trustworthy" exception of WIS. STAT. § 908.03(24). And, as noted above, it is further admissible as a matter observed by the Bureau under a duty imposed by law pursuant to WIS. STAT. § 908.03(8). Finally, B.H. does not show how this letter could have possibly prejudiced her as the trial court's findings were controlled by its conclusions as to whether B.H. complied with the Continuing CHIPS order, not this letter.
II. The evidence was sufficient to support the trial court's determination that grounds existed to terminate B.H.'s parental rights.
¶ 32 The sufficiency of the evidence test for an appellate court is well established. An appellate court will sustain a decision if any credible evidence exists to support it. See
¶ 33 B.H.'s argument against sufficiency of the evidence is based on the absence of expert testimony, which B.H. argues is necessary to establish grounds and unfitness. We disagree. The children's special needs and B.H.'s failure to provide safe full-time care for them were shown by admissible evidence. As we noted above, in response to B.H.'s admissibility arguments, the trial court's findings on noncompliance with the CHIPS order and Failure to Assume did not require an expert. The Bureau workers and foster mother provided strong lay opinion which, along with readily observable behavior of the children, supported the trial court's findings on both grounds.
¶ 34 Here, the trial court made a long list of findings: that B.H. did not learn very much sign language despite being given access to many resources over the year that the children were in foster care, did not make all the medical appointments despite being provided transportation or gas cards, did not fully accept the toxicity of the violence in the home despite having access to ongoing counseling, did not progress to more independent visitation, and did not exhibit the competence or comprehension required to deal with the children's extensive special needs. The question was whether B.H. was able, as of the filing date of September 19, 2015, to substantially meet all of the children's needs. We cannot say that no trier of fact, acting reasonably, could have reached the result reached by the trial court. Because we conclude that there was sufficient evidence, we affirm.
By the Court.—Orders affirmed.