Marathon County v. S.S., 2024AP1866, 5/8/25, District III (1-judge decision, ineligible for publication); case activity
“Sean” appeals orders of the circuit court terminating his parental rights to his daughter, “Zoey,” and denying his motion for postdisposition relief. He argues that he was denied effective assistance of counsel in four respects during the grounds trial, and that he was prejudiced by the individual and cumulative effects of counsel’s deficient performance. COA rejects Sean’s first two IAC claims and concludes that he failed to establish prejudice.
Zoey was born in 2017. At the end of 2018, the county became involved with Zoey due to reports that her mother was involved in prostitution and trafficking drugs, and she was ultimately removed in 2019. (¶¶3-4). In that time, Sean did not take on additional placement, and was unable to care for Zoey at the time of her removal due being charged with child sex crimes. (¶4). Three years later, the county filed a petition to terminate Sean’s parental rights to Zoey. (¶5). Sean demanded a jury trial and filed a motion in limine to prevent the admission of evidence related to his convictions, which was granted. (¶6). The court also ordered that witnesses be sequestered, and after the county decided not to call the foster mother, she sat in the courtroom during the rest of the trial. (¶¶7-8).
The jury found that both grounds for terminating Sean’s parental rights (continuing CHIPS and failure to assume parental responsibility) existed. Two jurors dissented as to the second element of continuing CHIPS–that the County made reasonable efforts to provide Sean with the services ordered by the court. (¶9). Sean filed a motion for postdisposition relief, arguing that he was denied effective assistance of counsel at the grounds stage. The circuit court concluded that Sean had failed to satisfy either
prong of the test for ineffective assistance of counsel. (¶10).
On appeal, Sean again argues that he was denied the effective assistance of counsel during the grounds phase due to the following errors: (1) failing to introduce evidence that the county “irreparably damaged [his] relationship” with Zoey; (2) eliciting harmful testimony regarding his rules of supervision imposed due to his convictions for child sex crimes; (3) failing to impeach his social worker’s testimony regarding both negative and positive observations she made during Zoey’s visits with Sean; and (4) failing to object to “improper evidence.” He also argues that the cumulative effect of all these deficiencies warrants a new factfinding hearing.
COA rejects Sean’s argument that trial counsel performed deficiently for failing to introduce evidence that the county damaged his relationship with Zoey. Counsel testified that despite the county having sought and obtained a temporary injunction preventing Sean from visiting Zoey at one point (at least 153 days), counsel was concerned about opening the door to evidence the foster mother had. Sean further argues on appeal that once the foster mother was no longer sequestered, she was unavailable as a witness. COA declines to address that point, concluding instead that counsel’s decision was a reasonable strategy as the county had other witnesses who could testify similarly regarding the harmful effects of Sean’s visits on Zoey. (¶¶16-22).
Next, COA rejects Sean’s argument that trial counsel performed deficiently by eliciting harmful testimony regarding his rules of probation and extended supervision from his DOC agent because the jury could conclude he was a sex offender. Counsel testified that he asked those questions because Sean asked him to, and the circuit court found counsel credible and believed it to be strategic because Sean “seemed to be convinced that the social worker and his probation agent were working in tandem or were, in connection, plotting against him to deny him his ability to be with his child.” COA concludes the circuit court’s finding was not clearly erroneous, and agrees that the questions supported Sean’s theory of defense at trial—that the county was working with DOC to interfere with, and ultimately deny, Sean’s ability to reunify with Zoey. (¶¶26-33).
Finally, COA concludes Sean was not prejudiced by the remaining claims. Specifically, Sean argues that his trial attorney was ineffective by failing to impeach a family support specialist regarding both negative and positive observations she made during his visits, and by failing to object in various instances to hearsay or evidence that lacked foundation. COA determines that “due to the overwhelming evidence that Sean failed to assume parental rights for Zoey, Sean fails to show that he was prejudiced by either of these alleged errors, individually or cumulatively.” (¶34). The opinion then details the evidence it finds “to be particularly pertinent to the lack of prejudice to Sean regardless of counsel’s failure[s.]” (¶¶50-54).
