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Court of appeals affirms default finding on grounds for termination of parental rights

State v. A.W., 2016AP121 through 125, 12/8/16, District 1 (1-judge opinion; ineligible for publication); case activity

When A.W. did not appear for her pretrial and was not reachable by phone, the court entered a default finding as to grounds for a TPR. She moved to vacate that finding, but then withdrew her motion. On appeal, she argued that (1) trial counsel was ineffective for advising her to withdraw the motion to vacate, and (2) the circuit court should have vacated the default so that she could address false information admitted in her case. The court of appeals refused to address the 2nd argument for reasons that penalized A.W. for mistakes her appellate lawyer allegedly made.

Ineffective Assistance of Counsel

At the hearing on A.W.’a motion to vacate, her lawyer said that she did not appear for the final pretrial because she was in the hospital. The judge asked for proof. A.W. consulted with her lawyer and then said the court should proceed with the dispositional hearing. It did, and it terminated her parental rights to her 4 children.

At the subsequent postdisposition/Machner hearing, A.W.’s lawyer testified that he was sure he wouldn’t have advised A.W. to withdraw her motion to vacate because once there’s finding of unfitness the termination of her rights was virtually inevitable. ¶19. A.W. testified that she was not in the hospital on the day of the pretrial (as counsel had told the court). Rather, she was very sick and had called the doctor. She said that her lawyer told her that the court would not vacate the default without documentation from A.W.’s doctor. She didn’t have documentation, so she proceeded to disposition. On appeal, she faulted the circuit court for giving trial counsel’s vague recollection about what he would not have done more weight than her clear memory of what he did. You can guess the court of appeals’ response:

[T]he weight and credibility of the evidence are solely for the circuit court to determine. See Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶6, 351 Wis. 2d 439, 839 N.W. 2d 893; Lessor v. Wangelin, 221 Wis. 2d 659, 665-66, 586 N.W. 2d 1 (Ct. App. 1998); State v. Jenkins, 2014 WI 59, ¶64 n.31, 355 Wis. 2d 180, 848 N.W.2d 786 (at a post-trial hearing, a circuit court may weigh the credibility of the witnesses, including trial counsel, and make credibility findings in assessing the deficiency and reasonableness of the trial counsel’s performance). ¶23

Perjury and False Information

Without access to the parties’ briefs, it is hard to assess A.W.’s claim that the circuit court should have vacated the default so that she could address perjury and false information in the record. According to the court of appeals, she wanted to prove that she was not homeless, her house did have electricity, and she had complied with the conditions for the return of her kids. But it held that she didn’t explain how this was an error given that she withdrew her motion to vacate. And it said that she failed to identify the alleged perjury and false information with record cites, so it refused to address the issue citing Clean Wisconsin, Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (the appellate court “will not address undeveloped arguments”); State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (the appellate court may “choose not to consider … arguments that lack proper citations to the record”). ¶25.

This holding highlights a vexing problem in the court of appeals. A.W. was represented by counsel. Her lawyer’s alleged failure to cite to the record was a rule violation. See §809.19(1) (d) & (e). Rather than hit the pause button and issue an order to show cause why the attorney should not be sanctioned (which likely would have prompted the attorney to supply the missing record references), the court of appeals punished the client, rejecting her claim on the merits. See §809.83. That opens a new can of worms–A.W.’s possible claim for ineffective assistance of appellate counsel.

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