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Counsel’s failure to object to hearsay and opinion evidence was not ineffective

State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)

B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.

The court of appeals held that the foster mother’s testimony about the twin’s special needs was admissible under §908.03(8) regarding statements setting forth matters observed pursuant to a duty imposed by law. The Bureau of Milwaukee Child Welfare assessed the twins’ special needs and communicated this information to the foster mom, thus the Bureau’s statements were also admissible. ¶25. The foster mom’s testimony about those statements was admissible under §908.03(24) because they are generally trustworthy and under §907.01 because the foster mom had training and experience that made her a lay expert. ¶26. Furthermore, the foster mom’s testimony concerning the results of neonatal testing and medical checkups that she had attended were likewise admissible under “§§907.03(8) and (24).” Thus, trial counsel did not perform deficiently in failing to object to all of this evidence. ¶28.

The court of appeals further held that even if the letter from the Bureau to B.H. were inadmissible it did not prejudice her because the trial court did not rely on it in ruling against her. ¶31.

Finally, the court of appeals found sufficient evidence of unfitness and failure to assume parental responsibility, despite the absence of expert testimony, based on the following:

¶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.

Be careful cutting and pasting from this opinion. Paragraph 28 and footnote 13 contain significant typos. They refer to §§ 907.03(8) and (24) when they probably meant to cite §§908.03(8) and 908.03(24). If the court of appeals issues an errata, we will update this post.

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