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COA finds no IAC in TPR: advice to plead to grounds was reasonable

Kenosha County DHS v. M.M.B., 2019AP1776 & 1777, 1/22/20, District 2 (one judge decision; ineligible for publication); case activity

M.M.B. is the father of two children, each of whom has a serious genetic disorder that threatens normal brain growth and function. The disorder can’t be cured but it can be controlled by adherence to a ketogenic diet. Both children were adjudicated CHIPS due to M.M.B.’s asserted inability to provide for their special needs; he allegedly does not believe that they have the disorder and does not comprehend the recommended diet. He also, per the county, doesn’t respond to their emotional needs in appropriate ways.

The county petitioned for termination on continuing-CHIPS grounds, and, on the advice of counsel, M.M.B. stipulated, litigating only the dispositional phase. After his rights were terminated, he alleged counsel’s advice was deficient and prejudicial because the grounds phase was his only realistic shot at maintaining his rights. (¶12).

Like the circuit court, the court of appeals disagrees:

At the postdisposition hearing, trial counsel testified that he had represented the father since the CHIPS cases and was familiar with the father and the circumstances of the children. Based on that history and his review of the records in this case, trial counsel believed that “the jury would have found in favor of the position take by [the County]” and a trial “would have made even clearer that [the father] was not capable of meeting [the children’s] individual needs.” He testified that it was his belief that the father had not met all his conditions of return. According to trial counsel, he discussed the change of plea with the father on multiple occasions and reiterated that it was the father’s decision as to whether to go to trial. Trial counsel also explained his strategy, testifying that he thought it would be negatively impactful for the court to hear “days of essential criticism of [the father’s] ability to parent these two boys.” Counsel testified that he could present a better case at the dispositional hearing where he could show that the father was a very good father to another child and try to convince the court to give him the chance to be the same kind of father to the children.

(¶13). Declaring this line of thinking “reasonable,” the court rejects M.M.B.’s ineffectiveness claim, as well as a plea for reversal in the interest of justice. (¶¶14-16).

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