Jackson County Dept. of Health & Human Services v. A.M.N., 2024AP1166, 7/10/25, District IV (ineligible for publication); case activity
COA finds counsel’s performance deficient for failing to timely file affidavits opposing Jackson County’s motion for partial summary judgment regarding its petition to terminate A.M.N.’s parental rights. But A.M.N. was not prejudiced because there is no reasonable probability that the affidavits would have created a genuine issue of material fact whether she had good cause for failing to contact or communicate with her daughter, J.T.T.
J.T.T. lived solely with A.M.N after her father died when she was 8. When J.T.T. was 10 in December 2020, A.M.N. left her and her siblings with a relative and told the relative she should take them to social services if she did not want to care for them. Jackson County took custody shortly thereafter and J.T.T. was found to be a child in need of protection or services. A.M.N. had a virtual visit with J.T.T. in April 2021, but did not visit or communicate with her again until April 25, 2022. (¶¶ 2-3).
The County filed a petition to terminate A.M.N.’s parental rights in July 2022, which alleged as grounds for termination: abandonment, between April 21, 2021, and April 25, 2022, under Wis. Stat. § 48.415(1)(a)2.; and continuing CHIPS under Wis. Stat. § 48.415(2). The County subsequently filed a motion for partial summary judgment regarding abandonment and a hearing was scheduled for December 13, 2022. (¶¶ 4-5).
On the date of the hearing, A.M.N.’s trial counsel filed two affidavits, which did not dispute that A.M.N. failed to communicate with J.T.T. between April 21, 2021, and April 25, 2022, but sought to show good cause for the failure. The County objected to admitting the affidavits as evidence because they were untimely under Wis. Stat. § 802.08(2), which requires an affidavit opposing summary judgment to be filed at least 5 days before the hearing. The circuit court struck the affidavits. (¶ 5).
The circuit court concluded there was no genuine issue of material fact that J.T.T. had been placed outside the home by a court order containing the required notices, that A.M.N. did not visit or communicate with J.T.T. between April 21, 2021, and April 25, 2022, and that A.M.N. did not establish good cause for this failure. The circuit court set the case for a dispositional hearing, at which it terminated A.M.N.s parental rights. (¶ 6).
A.M.N. filed a postdisposition motion alleging that her trial counsel was ineffective for failing to timely file the affidavits. The circuit court found counsel’s performance was deficient, but concluded A.M.N. was not prejudiced. (¶¶ 7-8).
The COA affirmed the circuit court’s order terminating A.M.N.’s parental rights and the order denying her postdisposition motion. The Court found trial counsel’s performance was deficient because a lawyer’s “professional obligations include knowing and complying with relevant filing rules, including deadlines,” and there was no strategic advantage to filing late. (¶ 11).
But the Court concluded A.M.N. was not prejudiced by counsel’s deficient performance. The Court reviewed the first affidavit, which stated that A.M.N. had good cause for failing to contact J.T.T. because: 1) she relocated to Minnesota out of necessity; 2) she made multiple attempts to contact J.T.T. since April 21, 2021; 3) she was incarcerated in Minnesota; 4) she mailed letters to J.T.T. from her place of confinement in Minnesota; 5) placement providers cancelled or rescheduled planned telephone visits with J.T.T.; and 6) she was on lockdown at her place of incarceration in Minnesota due to circumstances out of her control. (¶ 17). The second affidavit was from a client services worker in trial counsel’s office, who obtained records from the jail in Minnesota and showed that AM.N. made phone calls to J.T.T. on July 14, 2022, and that the County scheduled no visits between A.M.N. and J.T.T. after April 2, 2021. (¶ 18).
The Court found that information about A.M.N.’s incarceration in Minnesota would not have changed the outcome of the proceeding had trial counsel timely filed the affidavits because A.M.N. did not provide a timeline for when she was incarcerated. The circuit court concluded, and A.M.N. did not dispute, that she was not incarcerated until the summer of 2022, which was beyond the period at issue. (¶ 19).
Regarding the other statements in the affidavit, the Court found them insufficient to create a genuine issue of material fact because they were too general. For example, A.M.N. said she made “multiple attempts” to contact J.T.T., but did not provide specifics or allege that these attempts occurred during the relevant timeframe. And while A.M.N. alleged that the County failed to facilitate her contact with J.T.T., the Court found that she did not assert “these failings occurred with such frequency that they provide good cause for A.M.N.’s failure to have contact with J.T.T.” (¶ 21).
