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TPR – Effective Assistance of Counsel; Refusal to Adjourn Dispositional Hearing

Dawn H. v. Pah-Nasa B., 2011AP1198, District 3, 11/29/11

court of appeals decision (1-judge, not for publication); for Pah-Nasa B.: Lora B. Cerone, SPD, Madison Appellate; case activity

Given the proof of lack of parental responsibility as a ground for terminating Pah-Nasa’s rights, counsel’s failure to object to testimony about a fight between Pah-Nasa and his mother wasn’t prejudicial.

¶14      We conclude Pah-Nasa has failed to prove prejudice, namely a probability sufficient to undermine our confidence in the jury’s determination.  See Strickland, 466 U.S. at 694.  Regardless of Pah-Nasa and Bonnie’s argument, the evidence supporting Pah-Nasa’s failure to assume parental responsibility was ample.  Pah-Nasa never attended a doctor or dentist appointment for Cayden and attended only one school event.  He did not know where Cayden went to school or in what extracurricular activities Cayden participated.  Dawn testified Pah-Nasa never helped pay for rent, food, medicine or other necessities, and failed to schedule doctor appointments for Cayden, get up with Cayden in the middle of the night, or enroll Cayden in school.  She explained Pah-Nasa was more like a babysitter than a parent.  Pah-Nasa admitted he was in arrears on child support.  When released from incarceration, Dawn kept Cayden in daycare even though Pah-Nasa was available to watch him.  Finally, at the time of the termination proceeding, Pah-Nasa had not seen Cayden for two to three years and had not spoken to him in over a year and one half. Although Dawn failed to return certain phone calls and messages regarding visitation, Pah-Nasa, who has filed pro se motions in order to reduce child support, never attempted to use the legal system to gain visitation with Cayden.  Finally, to the extent the September 20 testimony may have implied Pah-Nasa was angry or violent, Pah-Nasa testified that he knew Dawn was afraid of him because of “physical altercations” they had.  The jury also heard he had been incarcerated fourteen times.

Pah-Nasa wasn’t present at the dispositional hearing; the trial court’s denial of adjournment wasn’t an erroneous exercise of discretion under the 6-factor test of State v. Leighton, 2000 WI App 156, ¶¶27-28, 237 Wis. 2d 709, 616 N.W.2d 126.

¶18      Here, even though the court did not articulate the factors outlined in Leighton when denying the adjournment request, the record supports the court’s discretionary ruling.  First, it appears from the record that the court’s denial of the adjournment was based, in large part, on the fifth Leighton factor, “whether the delay seems to be for legitimate reasons or whether its purpose is dilatory.”  See id.  The only reason Pah-Nasa presented to the court for failing to attend the hearing was that he did not know the correct time.  Although the court recognized “this was a significant hearing,” the court, relying on the transcript from the previous hearing, observed it had twice advised the parties the dispositional hearing would be at 11:00 a.m. and that they would work into the lunch hour if necessary.  The court noted it had also sent written notice about the hearing to Pah-Nasa.  The record supports the court’s determination that “[Pah-Nasa] had full awareness of [the] hearing.”  Pah-Nasa failed to present a legitimate reason for adjournment.

¶19      As for the other relevant Leighton factors, we observe that, although this was Pah-Nasa’s first request for an adjournment, Dawn traveled eight hours to attend this proceeding.  We reject Pah-Nasa’s speculation that Dawn would not necessarily have been inconvenienced by an adjournment or that a delay would have been minimal.  We conclude the court did not erroneously exercise its discretion by failing to grant an adjournment.

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