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TPR — evidence of parent’s failure to meet conditions for return of other children under a CHIPS order in a different county

State v. Roberta W., 2013AP936, District 1, 9/24/13; court of appeals decision (1-judge; ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to evidence that Roberta W. had failed to meet the conditions for the return of two of her other children under a CHIPS order in a different county because that evidence was relevant under La Crosse County Dept. of Human Servs. v. Tara P., 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194:

¶14      “[A] history of parental conduct may be relevant to predicting a parent’s chances of complying with conditions in the future, despite failing to do so to date.” Id., ¶13. In determining whether “there is a substantial likelihood” that a parent will not meet the requisite conditions for the return of his or her children, “a fact finder must necessarily consider the parent’s relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children.” Id., ¶18. Here, prior to Philtarion W.’s birth, Roberta W. had a history of working with multiple counties to address her mental health issues, in-home safety issues, and parenting decisions. However, Roberta W. was unable to meet the conditions of her older children’s return. Multiple case workers working with Roberta W. after Philtarion W.’s birth also testified as to their ongoing concerns about Roberta W.’s mental health. Evidence concerning Roberta W.’s inability to meet the conditions of reunification with her older children, therefore, is evidence from which it could reasonably be inferred that Roberta W. is unlikely to meet these conditions as they pertain to reunification with Philtarion. As such, trial counsel did not render deficient performance.

In addition, counsel articulated a reasonable strategic basis for not objecting: He wanted to introduce evidence that Roberta W. was actively trying to meet the conditions of the return of her youngest child, T.W., and concluded a successful objection to evidence regarding the older children would preclude the evidence he sought to elicit regarding the youngest child. (¶15).

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