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Trial counsel wasn’t ineffective for failing to argue it was impossible for parent to assume parental duties

Dane County DHS v. D.M., 2014AP2291, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective for arguing § 48.415(6) is unconstitutional as applied to D.M., as she fails to demonstrate that the County made it impossible for her to satisfy the conditions for return of her child, D.L.

¶12     D.M. argues that her trial counsel should have argued that Wis. Stat. § 48.415(6) is unconstitutional as applied to her because it is “fundamentally unfair” for the County to seek the termination of her parental rights on the basis that she had not assumed her parental duties when the County, by removing D.L. from her care, “made it impossible for [her] to assume daily responsibility for her child” or “to exercise significant responsibility for the ‘daily supervision, education, … protection and care of her child.’” (Emphasis added.) D.M. argues that it was impossible for her to assume daily responsibility for D.L. because D.L. was removed from her care; however, D.M. does not argue that the County made it impossible for her to satisfy the requirements established by the County for D.L.’s return to her custody. Nor does D.M. argue that the County made it impossible for her to “express[] concern for or interest in the support, care or well-being” of D.L., a factor the fact finder may consider in determining whether a person has failed to assume parental responsibility. See § 48.415(6)(b). D.M. has failed to make a sufficient showing that counsel was deficient in failing to make an as applied challenge to § 48.415(6), and I therefore conclude that counsel was not ineffective.

Similarly, the trial court properly granted the County’s motion for a directed verdict on one the issue of whether D.M. failed to visit or communicate with D.L. for at least three months. D.M. argued the County prohibited her from visiting during that period and that she had some visits during that period, though she can’t specify dates for those visits. The record supports the court’s decision to direct the verdict. (¶¶17-24).

Finally, D.M. complains Wis. J.I.-Children 313 is “confusing” about the County’s burden of proof on two of the six special verdict questions; but these complaints are rejected because in this case the judge, not the jury, answered the two questions, and D.M. doesn’t argue the judge was confused by the instruction. (¶¶14-16).

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