Winnebago County DHHS v. Thomas C. W., 2010AP847, District 2, 3/16/11
Though trial counsel was ineffective with respect to a single discrete oversight – failure to lodge a meritorious motion for judgment notwithstanding verdict as to one of the 3 grounds for termination – the court discerns no basis to doubt either of the remaining 2 grounds, and therefore no basis to upset the disposition. (Court stresses that appellate counsel failed to make any “substantive argument regarding” one of these other grounds.)
¶8 In his appellate brief, Thomas makes several arguments regarding the abandonment ground for termination. Yet, inexplicably, he makes no substantive argument regarding the children-in-continuing-need-of-protection-or-services ground for termination. This is inexplicable because the finding that the children are in continuing need of protection or services is itself a sufficient ground for the trial court to have ordered termination of parental rights. Wis. Stat. § 48.415(2). As such, it is itself a sufficient ground for this court to affirm. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if resolution of one issue disposes of appeal, we need not address other arguments raised by appellant).
The court indicates (fn. 2) that appellate counsel made but a “passing,” inadequately developed argument on the CHIPS ground, which therefore “merits no further attention.” State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), cited for idea that arguments unsupported by legal authority won’t be considered. The court nonetheless goes on to engage “extensive review of the lengthy transcripts” and to reach a conclusion that despite the discrete instance noted, trial counsel “was otherwise effective.” The court thus apparently reached the merits anyway. In any event, a very steep price is paid for a forfeited argument in a TPR, where as a practical matter no possibility exists for collateral attack.
¶9 Thomas also contends that we should grant a new trial in the interest of justice. We disagree. Our discretionary reversal power under Wis. Stat. § 752.35 is formidable and should be exercised sparingly and with great caution. State v. Williams, 2006 WI App 212, ¶36, 296 Wis. 2d 834, 723 N.W.2d 719. We are reluctant to grant new trials in the interest of justice and exercise our discretion to do so “only in exceptional cases.” See State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98. This is not such a case.