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Trial counsel’s performance at TPR trial, if deficient, was not prejudicial

Aaron W.M. v. Britany T.H., 2013AP2123, District 4, 2/13/14; court of appeals decision (1-judge; ineligible for publication); case activity

Britany claimed trial counsel was ineffective for not objecting to: 1) hearsay testimony from the child’s father that related incidents of Britany’s bad parenting;  and 2) the petitioner’s “golden rule” rule argument during closing, which asked the jurors to view the case as if the child were their own, thus improperly asking the jurors to “internalize and personalize the case, rather than to search for the truth from the evidence,” Dostal v. Millers Nat. Ins. Co., 137 Wis. 2d 242, 260, 404 N.W.2d 90 (Ct. App. 1987). The court of appeals concludes that even if trial counsel was deficient, there was no prejudice because there was substantial evidence to support the grounds of abandonment and failure to assume parental responsibility.

The testimony established that for well over a year after Aaron had primary physical placement of Michael, the child, Britany did not see or speak with or attempt to contact Michael despite the fact that she knew where Michael was, knew Aaron’s phone number, and admitted that she “could have contacted [Michael].” Nor did Britany call Aaron to ask about Michael’s doctor or schooling. (¶¶3-12, 24-26). And, if the petition did make an improper “golden rule” argument, it consisted of a single sentence offered during closing arguments, and came after the jury had heard two days of testimony regarding Britany’s parental relationship with Michael–testimony which, as already noted, provided substantial evidence supporting the abandonment and failure to assume parental responsibility allegations. (¶30).

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