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TPR – IAC – Lack of Prejudice

Oneida County Department of Social Services v. Scott H, 2011AP2599, District 3, 5/15/12

court of appeals decision (1-judge, not for publication); for Scott H.: Brian C. Findley; case activitycompanion case: Oneida County Department of Social Services v. Amanda H., 2011AP2599 

Notwithstanding trial counsel’s concession of no strategic reason for allowing the jury to view documents reciting Scott’s “history of violent behavior,” The court rejects Scott’s ineffective-assistance claims due to lack of prejudice.

¶14      We conclude that, irrespective of whether counsel was deficient for sending that information to the jury, Scott was not prejudiced by any deficiency.  First, we agree with the County that this information was largely cumulative to other evidence introduced at trial.  There, Scott voluntarily revealed he had been in prison and discussed participating in “cage of rage” while there.  Additionally, multiple witnesses testified about Scott’s anger problems—he yelled at workers; he yelled at Amanda; workers feared for their safety and felt threatened, visits had to be removed to the agency because of his behavior; and law enforcement was made available for visits. Moreover, the jury observed Scott’s inappropriate behavior during trial—he interrupted witness testimony and closing arguments; he argued with the court and counsel; he was not responsive during portions of cross-examination; and he walked out of trial on more than one occasion.

¶15      Second, there was substantial evidence in the record to support the jury’s determination that Daman continued to be a child in need of protection or services.  Daman had been in foster care his entire life.  As part of the conditions for Daman’s return, Scott was, in part, ordered to attend visits with Daman and engage in counseling.  During trial, the case workers testified that Scott and Amanda had cancelled multiple visits during 2010 and 2011 and their excuses ranged from illness to working at a rummage sale to having tech support come to their house.  One time when Scott and Amanda cancelled a visit for an illness, a case worker later observed them at the grocery store.

Grounds for termination included both failure to assume parental responsibility and continuing CHIPS. The jury based its verdict on CHIPS, and the court therefore dismisses those IAC grounds related solely to failure-to-assume, ¶21. (“However, Wis. Stat. § 48.415 only requires a finding on one termination of parental rights ground.  Because the jury found grounds to terminate Scott’s parental rights based on a continuing CHIPS, we need not address his arguments related to failure to assume parental responsibility.”) State v. McGuire, 204 Wis. 2d 372, 556 N.W.2d 111 (Ct. App. 1996) (if appellate court vacates conviction on one count, new trial may be necessary on another count due to prejudicial spillover from vacated count’s evidence), distinguished: “Here, however, we are not vacating the failure to assume parental responsibility determination ….,” ¶23.

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