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TPR – Summary Judgment on Grounds – Ineffective Assistance of Counsel

Michael B. v. Marcy M., 2011AP2846, District 2, 5/16/12

court of appeals decision (1-judge, not for publication); for Marcy M.: Jane S. Earle; case activity

By responding (inadequately) to a TPR motion for summary judgment on grounds with a letter rather than evidence such as an affidavit, counsel provided ineffective assistance.

¶10      We disagree that counsel’s performance was “not ineffective.”  In the face of summary judgment that would deprive Marcy of a jury determination on her failure to assume parental responsibility, counsel’s failure to submit any evidentiary opposition to the summary judgment motion falls below the deferential yardstick we use to measure counsel’s performance.  Counsel’s letter to the circuit court opposing summary judgment contained information about Marcy’s provision of care for and relationship with Khalasia.  This information may well have defeated summary judgment by creating a genuine issue of material fact regarding Marcy’s assumption of parental responsibility,[4] if counsel had submitted it in evidentiary form.  Furthermore, counsel admitted at the Machner hearing that he knew the response to the summary judgment motion had to be “done in affidavit form or some other similar sworn testimony.”  Counsel acknowledged that he thought he “made an error” with respect to not opposing summary judgment with an affidavit.  We agree.  Counsel’s performance in failing to submit an affidavit in opposition to summary judgment did not fall within reasonably professional norms.

¶11      Additionally, we conclude that there was a reasonable probability that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Thiel, 264 Wis. 2d 571, ¶20 (quoting Strickland, 466 U.S. at 694).  The statements made by the circuit court at the summary judgment hearing indicate that there was a reasonable probability the circuit court would not have granted summary judgment to Michael if it had received an affidavit attesting to Marcy’s relationship with and care for Khalasia. …

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