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GAL’s closing argument at TPR trial wasn’t prejudicial

State v. T.W., 2018AP967 & 2018AP968, District 1, 8/21/18 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate T.W.’s parental rights, the GAL argued in closing that the jury should consider the interests of the children. T.W.’s lawyer didn’t object, but the court of appeals holds that failure wasn’t prejudicial and so rejects T.W.’s claim that trial counsel was ineffective.

¶9     In Door County Department of Health and Family Services v. Scott S., 230 Wis. 2d 460, 602 N.W.2d 167 (Ct. App. 1999), we held that it is reversible error in a fact-finding hearing “[o]nly when the court or the GAL instruct the jury that it should consider the best interests of the child.” See id. at 469. T.W. has not shown how the GAL’s closing arguments were prejudicial so as to undermine our confidence in the outcome of the proceeding. See Strickland [v. Washington], 466 U.S. [668,] 694 [(1984)]. When read in context, it is clear that the GAL did not “instruct” the jury to consider the “best interests of the child[ren]” standard. See Scott S., 230 Wis. 2d at 469. Rather, the GAL initially misspoke, stating “what’s in the best — Strike that.” The GAL immediately withdrew her statement and then continued, asking the jury to consider “what is in the interest of the children.” The GAL asked the jury, in light of the evidence presented, to find that the State met its burden of proving grounds for termination of T.W.’s parental rights. While this may have been close to the line drawn in Scott S., we conclude that the statement as corrected did not cross it here. We agree with the circuit court that the GAL’s reference to the children’s best interests was “fleeting” in the context of the totality of the closing argument.

¶10     Moreover, T.W.’s assertion that a potential dissenting juror changed his mind because of the GAL’s statement is purely speculative…. The evidence was sufficient for the jury to conclude that the children were in need of continuing protection or services. Multiple witnesses, including T.W.’s initial placement case worker, a family therapist, and the family case manager, testified about the history of domestic violence between T.W. and the children’s father, T.W.’s lack of understanding of safety concerns, T.W.’s various struggles with her children, the services provided to T.W., and T.W.’s inability to meet the conditions of return despite the services provided. From the evidence presented, the jury could reasonably conclude that T.W. failed to the meet the conditions for the children’s return.

Once again, the court of appeals erroneously treats Strickland‘s prejudice test as a sufficiency of the evidence test; this is wrong, as the supreme court recently reminded us in State v. Sholar, 2018 WI 53, ¶¶44-45, 381 Wis. 2d 560, 912 N.W.2d 89 (“We reiterate that the Strickland prejudice test is distinct from a sufficiency of the evidence test …”).

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