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TPR — Effective assistance of counsel at fact-finding hearing

Jenna L.C. v. Dustin J.K.V., 2012AP2696, District 2, 5/29/13; court of appeals decision (1-judge, ineligible for publication); case activity

The court of appeals rejects Dustin’s claim that his attorney was ineffective at the fact-finding hearing on a TPR petition alleging he had failed to assume parental responsibility for his daughter, Breyanna.

Trial counsel did not object to certain evidence about conduct Dustin allegedly engaged in shortly before he learned his girlfriend was pregnant with Breyanna. The court concludes trial counsel reasonably decided not to object to evidence about Dustin’s arrest for marijuana delivery the month before learning of the pregnancy because counsel did not want the jury to think Dustin was trying to “hid[e] something.” (¶¶18-19). The court holds Dustin was not prejudiced by counsel’s failure to object to testimony about his girlfriend bailing him out of jail, his actions contributing to her losing her job and his “dealing” marijuana in her employer’s parking lot, and his previous probation revocations. Dustin did not contest evidence informing the jury about other criminal behavior, his failure to provide financial support, or his lack of effort to inquire about the status of the pregnancy or how the baby was doing. (¶¶20-23). Moreover, the court properly instructed the jury on the factors to consider in deciding the petition. (¶24). The court concludes:

¶25      In denying Dustin’s posttermination motion, the trial court emphasized that “the overwhelming amount of credible evidence supported the jury’s finding.”  We agree.  Considering the substantial unchallenged evidence the jury had before it related to actions Dustin took or failed to take after learning of [his girlfriend’s] pregnancy, Dustin has not demonstrated a reasonable probability that, but for his trial counsel’s failure to object to the challenged testimony, the outcome of the fact-finding hearing would have been different….

For the same reason, the court rejects Dustin’s alternative claim that it should order a new trial in the interest of justice because the challenged testimony distracted or misled the jury. “The trial court properly instructed the jury on the factors it was to consider in making its determination and there was ample evidence supporting the jury’s verdict. The challenged evidence, even if it had been improperly admitted, which we do not decide, was not so substantial as to leave us with concerns regarding the fairness of the trial.” (¶26).

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