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Counsel at TPR trial wasn’t ineffective

Barron County DHHS v. J.H., 2015AP1529, District 3, 1/13/16 (one-judge decision; ineligible for publication); case activity

J.H.’s claims that her trial counsel was ineffective are rejected because trial counsel’s actions were either not deficient or not prejudicial.

The County petitioned to terminate the parental rights of J.H., who is developmentally disabled, on continuing CHIPS grounds. J.H. first argues trial counsel was ineffective for failing to request a modification to the special verdict form that would have required the jury to separately answer whether the services the County provided took into account J.H.’s characteristics, “specifically her learning disability,” before it answered whether the County had made a reasonable effort to provide J.H. the necessary services. (¶13). The court of appeals concludes counsel had a reasonable basis for not requesting such a modification in light of the special verdict form that was and the argument counsel made to the jury:

¶14     The special verdict form asked the jury whether the County made a reasonable effort to provide the services ordered by the court. The circuit court instructed the jury that a reasonable effort means “an earnest and conscientious effort to take good faith steps to provide those services, taking in consideration the characteristics of the parent or child, the level of cooperation of the parent, and other relevant circumstances of the case.” (Emphasis added.) When J.H.’s trial counsel was asked during the postdisposition hearing whether he had a strategic reason for not proposing the modification to the special verdict form or requesting an additional jury instruction, he explained it was his recollection that the jury instructions “talk[ed] about taking into consideration overall factors.” He believed his line of questioning “hammered it that way.” He further indicated, “I suppose you could have attempted to do a specific jury instruction, but I think I did that during my questioning and during my closing.”…

J.H. also claims trial counsel was ineffective for failing to object to the following: The County’s closing argument statement that this case was about the child; a lay witness’s putatively “expert” testimony about the nature of J.H.’s disabilities and her ability to change and meet the conditions; and the closing argument of the attorney for the child’s biological father, who had aligned himself with the County and the GAL. (¶¶17-19). The court of appeals holds that even if counsel was deficient for failing to do all of these things, there was no prejudice because, based on the evidence presented at trial, the deficiencies did not prejudice J.H. (¶¶21-33).

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