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Counsel wasn’t ineffective for failing to call mom’s psychiatrist at TPR trial

State v. A.C.M., 2018AP2423-2424, 11/12/19, District 1 (1-judge opinion, ineligible for publication); case activity

A.C.M.’s trial lawyer did not call her psychiatrist to testify about her mental health or her medication compliance–evidence that was important to the issue of whether she posed a safety risk to her children. The court of appeals held that even if counsel should have called the doctor, her failure to do so didn’t prejudice A.C.M.

¶17 . . . First, A.C.M.’s insistence that Dr. Holloway’s testimony would have been beneficial is speculative. Dr. Holloway did not testify at the postdisposition evidentiary hearing, nor did A.C.M. establish facts indicating that Dr. Holloway would have testified beneficially to her position. Indeed, counsel testified that in her professional judgment, Dr. Holloway’s testimony would not have helped her client as his notes contained some negative factors. Therefore, we cannot conclude that A.C.M. has shown a reasonable probability that, but for counsel’s failure to communicate with Dr. Holloway or to call him as a witness, the result of the proceeding would have been different.

A.C.M. also argued that there was insufficient evidence to prove that she would not be able to meet the conditions for the safe return of her children. The court of appeals denied this claim due to her mental health issues. (This kind of suggests that the psychiatrist’s testimony was highly relevant).

¶20  . . . A.C.M. was required, among other things, to demonstrate control over her mental health issues, to demonstrate control over her drug and alcohol issues, and to establish a willingness and ability to care for her children on a fulltime basis. In a thoughtful and detailed decision, the circuit court found that A.C.M. “has not and is substantially unlikely to demonstrate a capacity to safely parent her children in the foreseeable future.” The record supports the circuit court’s findings.

¶21 Dr. Sherry testified that due to significant mental health issues, A.C.M. was unable to complete visitation with her children and that A.C.M. maintained violent and dangerous relationships. A.C.M.’s case workers testified about A.C.M.’s failure to participate in court-ordered programs and her inability to provide a safe living environment for the children. The record establishes that A.C.M. frequently skipped urine screens, and the one completed screen tested positive for drugs. The record also establishes that A.C.M. did not consistently visit with her children. The circuit court properly took into account all of the relevant testimony and concluded that A.C.M. was unlikely to be able to meet the necessary conditions to provide a safe environment for her children.



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