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Court of Appeals rejects claims that trial counsel was ineffective at TPR trial

Douglas County DHHS v. D.B., 2020AP982, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity

D.B. claims trial counsel at his TPR trial was ineffective for: (1) failing to object to the application to his case of the amended version of the statute governing continuing CHIPS grounds; (2) failing to introduce evidence about additional visits between D.B. and his son; and (3) failing to object to testimony about his son’s negative reactions to him during certain visits. The court of appeals rejects the claims.

D.B. first argues that trial counsel should have objected to the application to his case of an amended version of § 48.415(2), the statute governing continuing CHIPS grounds for termination of parental rights. The amended version of the statute changed the elements of the continuing CHIPS ground and was enacted after D.B.’s CHIPS order was entered. He asserts the elements of the ground set out in the statute in effect at the time of the CHIPS order should apply because those elements are the ones he was given notice about when the CHIPS order was entered. The trouble is, this argument was recently rejected by the supreme court in a case involving nearly identical facts. Eau Claire County DHS v. S.E., 2021 WI 56, 397 Wis. 2d 462, 960 N.W.2d 391. Trial counsel can’t be ineffective for failing to make what is, after S.E., a meritless argument. (¶¶4-9, 22-37).

Regarding trial counsel’s failure to introduce additional visits remade to his son that the county’s witnesses didn’t testify about and failure to object to testimony about his son’s negative reactions to D.B. during supervised visits, the court doesn’t decide whether trial counsel performed deficiently; instead, it concludes—in lengthy, fact-intensive discussions—that D.B. has failed to prove trial counsel’s actions prejudiced D.B. (¶¶38-53).

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