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TPR- Ineffective Assistance – Change of Placement, Warnings; Disposition, Exercise of Discretion

State v. Jesenia R., 2009AP2906, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate

No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.

The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them, while the TPR was pending. No one notified the circuit court of the move till well after the fact. Confronting the problem post hoc, the circuit court expressed concern about what was in effect “a unilateral suspension of visitation rights” under the CHIPS order, and a concomitant leveraging of the State’s position in the TPR. The circuit court ordered that the foster parents bring Elizabeth back for the TPR hearing, so Jesenia could have several hours of visitation — not much of a remedy, was it? — but there doesn’t seem to be much else the court could do, the damage had been done. Once Elizabeth was whisked away, Jesenia had no chance to get her back; she was deprived of meaningful visitation through no fault of her own. When it got around to reaching the actual disposition, the circuit court concluded that Elizabeth’s removal to Idaho nonetheless had not “significantly impacted” Jesenia’s ability to establish a substantial relationship. In what might be described as a notional exercise, the circuit court imagined that Jesenia had been afforded visitation: termination still was warranted, given Jesenia’s dismissal from a substance-abuse treatment program and her mental-health hospitalization as a suicide threat, while the TPR was pending, ¶11.

Jesenia argued on postcommitment motion that she was denied effective assistance by trial counsel’s failure to timely challenge the move to Idaho. The circuit court agreed that counsel performed deficiently, but ruled the outcome hadn’t been affected, now putting its notional exercise to service in a conclusion of no prejudice. The court of appeals doesn’t explicitly say whether it agrees as to deficient performance, but it certainly agrees on the question of prejudice. “Given the circuit court’s assumptions as to what Jesenia R. would have done if Elizabeth were not taken to Idaho, and its findings of fact relating to Jesenia R.’s history of neglect of Elizabeth and her own significant child-endangering personal and mental-health problems, we agree on our de novo review that Jesenia R. has not shown prejudice by her lawyer’s failure to timely object to the Idaho move,” ¶16.

Jesenia’s significant child-endangering personal and mental-health problems? Well, the circuit court posited exactly two events to support the idea she wouldn’t have taken advantage of visitation — dismissal from drug treatment and hospitalization. As to the former: the circuit noted the absence of any evidence of lack of sobriety, which drains this factor of meaning. As to her hospitalization: so what? The court, to be sure, is presented with a real dilemma.  But the court’s solution — to hypothecate a counter-factual world in which Jesenia did get visitation and nonetheless continued to stumble — is a bit too pat. “Historians approach counterfactual reasoning with enormous unease, and they do so with good reason. … (C)ounterfactual reasoning comes in two varieties—good and bad. The bad reasoning is bad because it has no grounding; it is merely an act of imagination, and unconstrained imagination at that. The good reasoning is good because it can be grounded.” This isn’t to say that the court’s counterfactual exercise in this instance was necessarily bad (or good), just that it was an exercise in counterfactual reasoning. Draw your own conclusion as to whether the process instills at least some, if not enormous, unease.

TPR – Ineffective Assistance – Prior Termination

Partial summary judgment was granted on the ground of a prior termination within the past 3 years. Default judgment was entered in the prior termination, which Jesenia challenges on the basis of ineffective assistance. The court agrees that counsel in that case performed deficiently — he acknowledged he wasn’t prepared for the “prove-up” hearing, which he thought was merely a status date — but holds that no prejudice resulted, because the record showed that she acquiesced in the default, and in any event she presents no viable defense to either grounds or disposition in that case, ¶20.

Whether a prior TPR can be challenged on an IAC theory as here is potentially precedential. The court “assume(s) without deciding that where the earlier termination is the predicate for a termination under Wis. Stat. § 48.415(10), the validity of that earlier termination is in play,” ¶20 n. 6.

TPR – Ineffective Assistance – Warnings

Failure to warn the parent that termination in one case could be used as a ground to terminate rights to another child isn’t a basis to challenge the subsequent termination; therefore, counsel wasn’t ineffective for not raising this argument. Winnebago County Department of Social Services v. Darrell A., 194 Wis. 2d 627, 644–645, 534 N.W.2d 907 (Ct. App 1995) (notice not required where it would be superfluous because the act underlying the notice couldn’t be undone), deemed controlling, ¶21.

TPR – Disposition, Exercise of Discretion

The trial court fully considered all the factors in § 48.426, and properly exercised discretion in terminating parental rights, ¶22.

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