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Counsel performed deficiently, failed to object to GAL’s closing argument at TPR trial

Chippewa County Dep’t of Health and Human Servs. v. J.W.., 2021AP1986, 7/19/22, District  3, (1-judge opinion, ineligible for publication); case activity

“Janine” raised an insufficient evidence claim and several ineffective assistance of counsel claims in her appeal from an order terminating her parental right to her son.  This post focuses on two of the IAC claims. Counsel failed to object to (1) portions of the county social worker’s testimony, and (2) new information that the GAL introduced during closing statements.

One of the issues the jury had to decide was whether the county made reasonable efforts to provide Janine with services so that she could meet the conditions of return for her child. The county called Abigail Smasal, Janine’s case manager, to prove that it did.

Smasal testified that she made a reasonable effort to provide Janine with services, that Janine failed to meet the conditions of return, and that her son was a child in need of protection or services. On appeal, Janine argued that trial counsel should have objected. This was impermissible lay witness testimony under §907.01, and it usurped the role of the jury.  Specifically, Smasal’s personal opinion of her work was not helpful to the determination of a fact at issue. Opinion, ¶¶41-43.

The court of appeals disagreed. “[N]o witness could have been more helpful to the jury on this issue,” it said. Opinion, ¶43. Besides, when the county asked Smasal whether she had made reasonable efforts to help Janine meet the conditions for return, and she said that she did, she was speaking about herself, not the county. It was her “opinion of her own success” not testimony on the ultimate legal issue–the county’s efforts to help Janine. Opinion, ¶44.

This reasoning does not fly. Smasal is the county’s case manager. She was called to offer evidence of the county’s efforts to provide services to Janine. The county did not call any other witness to testify on this subject. So her opinion on her efforts was also her opinion on the county’s efforts–i.e. the ultimate issue for the jury.

During closing arguments, the GAL told the jury that the CHIPS court went over the conditions of return with Janine. If she had thought that certain conditions of return were impossible to meet, she could have said so. Instead, she pled to CHIPS and said “let’s go, and we can do it.” Therefore, Janine was responsible for any difficulty she had meeting the conditions.

Janine argued that this was new information and not supported by the record. The court of appeals agreed. It held that trial counsel performed deficiently by not objecting to the GAL’s assertions during closing arguments.  Unfortunately, it also held that Janine was not prejudiced by this error.

¶51 Still, we conclude that the GAL’s short characterization suggests the existence of a specific statement by Janine that is not supported by any evidence at the trial in this TPR proceeding. Such an argument was improper at closing, either because it incorrectly stated the facts testified to at trial, or because it introduced new evidence in the GAL’s closing statement that had not been introduced during trial.

¶52 Although there may be strategic reasons not to object during closing argument, here the County directly stipulated that Janine’s attorney had “no strategic reason why he didn’t object.” We therefore conclude that Janine’s attorney was deficient for failing to object to the GAL’s statement. We also conclude, however, that this deficiency did not result in prejudice to Janine, and Janine’s attorney was therefore not constitutionally ineffective. See Strickland, 466 U.S. at 692. Ultimately, the GAL’s closing statement, one of several given at trial, discussed the evidence at issue very briefly, and no exceptional emphasis was
placed on the newly introduced evidence. Instead, the majority of the GAL’s closing statement focused on Janine’s drug use and the efforts she made in meeting the court-ordered conditions. The brief nature of the improper comment in relation to the overall trial—at which significant evidence was presented supporting the County’s position—renders it improbable that the improper comment prejudiced Janine.

¶53 In addition, the circuit court instructed the jury at the outset of trial that “[r]emarks of attorneys are not evidence. If any remarks suggest certain facts not in evidence, disregard the suggestion.” We presume that jurors follow the instructions given by the court. State v. Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d 386, 906 N.W.2d 158. This instruction reduces the chances that Janine’s counsel’s
failure to object to the GAL’s statement was prejudicial. Ultimately, given the minimal impact that this brief characterization had on the entire trial, and given the court’s proper jury instruction, we conclude that counsel’s failure to object to the GAL’s statement did not prejudice Janine.

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