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COA affirms denial of IAC claim in TPR summary judgment appeal

Sheboygan County DH & HS v. A.P., 2023AP1382, 2/7/24, District 2 (one-judge decision; ineligible for publication); case activity

Faced with the department’s motion for summary judgment on grounds of abandonment, counsel for A.P filed a brief in opposition and attached two exhibits, but failed to file any affidavits. Postdisposition and on appeal, A.P. argues that she received ineffective assistance of trial counsel because counsel failed to obtain or file an affidavit in opposition to the department’s motion and for not informing A.P. of the dire need for counsel to do so. The court affirms the rejection of A.P.’s claims and faults A.P. for asking to receive the benefit of her own error under the “doctrine of invited error.” Op., ¶27.

The majority of this opinion is a fairly lengthy summary of the facts underlying A.P.’s IAC claim, including the circuit court’s original decision to grant summary judgment, the evidence introduced at the postdisposition evidentiary hearing, and the court’s factual findings postdisposition. Op., ¶¶5-20. After that lengthy background section, the court states that it is “not persuaded that A.P.’s trial counsel, in failing to submit an affidavit in opposition to the Department’s summary judgment motion, made an error so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment given the circumstances of this case.” Op., ¶23 (cleaned up). The court faults A.P. for hindering her trial counsel’s ability to represent her by failing to attend meetings, failing to remain in contact with counsel, and failing to provide counsel with relevant information that could have been included in an affidavit opposing the Department’s summary judgment motion. Id.

Further, despite A.P.’s testimony and explanation that she would have signed an affidavit had trial counsel explained the importance of doing so, the court faults A.P. for not sharing the substantive information that could have been included in an affidavit with trial counsel. Op., ¶25. Finally, the court notes that “while Wis. Stat. § 802.08(3) may have required that A.P. submit anaffidavit in response, mere submission of an affidavit in opposition to the Department’s summary judgment motion, standing alone, is insufficient to defeat such a motion; rather, the affidavit must create a genuine issue of material fact.” Op., ¶26.

On the one hand, it’s clear this decision hinged primarily on the disputed facts that came out at the postconviction evidentiary hearing. On the other hand, the important takeaway for litigants dealing with summary judgment motions in TPR cases is that it must be made clear to the client how important it is for the client to provide substantive and responsive information that trial counsel can use in an affidavit to defeat summary judgment. It is not the client’s job to understand the intricacies of civil procedure or to know exactly what information must be shared with trial counsel. Circuit courts seem to be more than eager to grant summary judgment in TPR cases, and unless the record is clear that genuine issues of material facts existed at the trial level, the court of appeals will not reverse.

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