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Circular reasoning upheld as mother testifies about father’s suspected heroin use during TPR trial

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity

Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.

Under Wis. Stat. § 48.415(1)(c), abandonment is not established if the parent proves by a preponderance of the evidence that they had “good cause” for not visiting or communicating with their child. A jury may find good cause based on evidence that the person with physical custody of the child “prevented or interfered with” efforts by the parent to visit or communicate with the child. See WIS JI-CHILDREN 314.

In rebuttal testimony to Ed’s good cause defense, Nancy testified that she was concerned for Kim’s well-being and that the family court ordered Ed to be drug tested. Ed objected on relevancy grounds when Nancy was asked why she requested drug testing. The circuit court overruled the objection and Nancy stated that her concern was “[h]eroin use.” (Opinion, ¶11).

During closing arguments, Nancy addressed Ed’s good cause defense, explaining that Ed wasn’t “welcome” around Kim because of “[h]eroin.” After Ed argued that allegations of his heroin use were a “misdirection” and “unsubstantiated,” Nancy responded by arguing that Ed had been “MIA for three and a half years” because of heroin and that “[h]eroin kept [Ed] away for 1,288 [days].” (¶¶12-14).

Postdisposition, Ed claimed his trial counsel was ineffective for not objecting to the “heroin use” testimony on the grounds that Nancy lacked personal knowledge of the matter. (¶¶15-17). The circuit court denied his motion and the court of appeals affirms based on a combination of deference to trial counsel’s “reasonable strategic decision for not objecting” and because Nancy’s rebuttal testimony was “proper.” (¶23).

In terms of trial counsel’s “reasonable strategic decision,” however, the court appears to misconstrue Ed’s argument. Ed’s trial counsel objected to Nancy’s rebuttal testimony on relevancy grounds. Postdisposition, Ed’s claim is that “lack of personal knowledge” or improper foundation was the proper objection to Nancy’s testimony about Ed’s heroin use. Trial counsel said he decided not to object further after the court rejected his relevancy objection because “further objections would have been unsuccessful.” The fact that the wrong objection failed doesn’t provide a strategically reasonable basis to conclude that a different, arguably correct objection, wouldn’t have prevailed. (See ¶¶16-17).

Moreover, the decision glosses over the issue of Nancy’s lack of personal knowledge about Ed’s heroin use by simply quoting the postdisposition court’s reasoning at length. (¶¶22-23). The problem is that the lower court’s substantive discussion of Nancy’s personal knowledge is confusing and circular: Nancy would be asked why she requested Ed to be drug tested, the answer was “heroin use.” Nancy would not be asked “whether [Ed] was a drug user or not. She was not asked if she had any documents to supplement that he was a drug user.” Further, the postdisposition court noted that there was “additional foundation” because Ed already admitted to “prior drug testing.” (¶22). What drug testing? The testing Nancy requested from the family court. The court of appeals thereafter simply states: “This court agrees both that this was proper rebuttal testimony and that there was sufficient foundation, particularly given the good cause defense. (¶23).

The court then quickly disposes of Ed’s second IAC claim concerning Nancy’s closing argument, which focused on Ed’s heroin use as an explanation for why Ed did not have “good cause” for failing to maintain contact with Kim. Because the testimony was admissible, Nancy’s argument was well within the “considerable latitude” granted at closing. (¶¶24-25).

Whether a mother petitioning to permanently terminate a father’s parental rights should have been allowed to testify about suspected heroin use seems to be a much closer call than the court of appeals gave Ed credit for. It’s foundational that no witness may testify about a matter unless they have “personal knowledge of the matter.” Wis. Stat. § 906.02. Ed’s postdisposition claim was that Nancy lacked personal knowledge of his alleged heroin use and that her “concern” originated from someone else. Hearsay may have stopped Nancy from testifying about what someone told her about Ed, but the court here agrees that Nancy’s knowledge about Ed being drug tested, which occurred after she relayed her concerns to the family court, established a basis for Nancy to testify about her “concern” over Ed’s “heroin use.”

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