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Advice to admit to “reasonable effort” not structural or prejudicial error in TPR trial

Kenosha County DC&FS v. M.A.C., 2023AP2068 & 2069, 5/14/24, District II (one-judge decision; ineligible for publication); case activity

M.A.C. (“Molly”) challenges the circuit court’s decision to deny her postdisposition motion without a hearing. The court of appeals affirms because it says Molly can’t establish she was prejudiced by her trial attorney’s advice that she admit the county made a “reasonable effort” to provide services ordered by the CHIPS court.

Prior to trial, Molly, through her counsel, responded to the county’s requests for admission and admitted that the county “made a reasonable effort to provide services ordered by the court.” Molly did not admit that she failed to meet each of the conditions set by the court for the return of her children to her care.

At trial, Molly sought to withdraw her admission regarding the county’s reasonable effort, but the court rejected the attempt and answered the question in the affirmative for the jury. Postdisposition, Molly brought a claim of ineffective assistance of counsel and the court denied the motion without a hearing after concluding that Molly could not establish prejudice.

On appeal, Molly first seeks to argue that she need not establish prejudice because counsel’s error was “fundamental,” akin to the structural error found in State v. Shirely E., where the court held that the denial of the right to counsel was structural error and “per se prejudicial.” The court disagrees because, it reasons, Molly had no “fundamental” right to a jury verdict on the reasonable effort element and Molly’s asserted error is “materially less significant than the complete denial of counsel in Shirley E.Op., ¶21.

After the court rejected Molly’s structural error claim, it turned to whether the circuit court erred in denying her an evidentiary hearing. In doing so, the court agrees with the circuit court that Molly cannot establish prejudice because the “record conclusively demonstrates that she is not entitled to relief.” This is so, says the court, because even without Molly’s admission, there is no reasonable probability that a jury would have determined that the county failed to make a reasonable effort to provide the services ordered by the court. Op., ¶¶24-26.

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