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Court of appeals affirms trial court’s “no ineffective assistance of counsel” finding in TPR case

State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity

The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.

¶40 The Machner court found that trial counsel was not deficient because he did all that he could based on the information he had to locate potential family members who might be willing to have A.W. placed with them. It also found that, at the dispositional hearing, trial counsel had “argued vehemently for the possibility of placement with a relative and transfer of guardianship to a relative, [and] that he argued appropriately with the information that he had available to him.” The Machner court went on to hold: Based on all of that, I do not conclude that [trial counsel’s] performance was deficient. I find that it absolutely was not outside of the range of professionally competent assistance. In fact, I believe that [trial counsel] did everything that he could potentially have done with the information that he received from his client. And he took all possible steps to obtain additional information from his client and from other family members. The Machner court clearly found trial counsel’s conduct was not deficient.

¶41 Having independently considered the question, we agree and find that trial counsel was not deficient in attempting to locate D.W.’s relatives, particularly since D.W. never told trial counsel that he had a sister.

¶48 Addressing the https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=188183age=13

dispositional order, the Machner court stated: I note that [the trial court] heard testimony that [A.W.] was in a good placement, not an extremely longterm placement, but in a treatment foster home that was trained and qualified to address his special needs, that [A.W.] did have significant, special needs. And based on all of that, I believe that [the trial court] would have come to the same conclusion and made the same order, even had he heard testimony from [Ar.W.] or [D.W.’s mother] or any other family members, and even had there been additional information for [trial counsel] to present to [the trial court]. The Machner court then found that even if trial counsel’s performance was deficient, there was no prejudice.

49 We agree. The trial court was charged with determining the placement for A.W. that would be in the child’s best interests. None of the information disclosed about potential placement with a family member would cause this court to conclude that there was a reasonable likelihood that the outcome of the dispositional hearing would have been different.

Regarding D.W.’s argument that his plea was defective, the court of appeals noted that he failed to develop the argument or cite any supporting legal authority. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W. 2d 285 (Ct. App. 1998). It thus held:

¶53 Because D.W. merely stated that there is an issue whether his plea was defective, but fails to provide any factual or legal authority supporting that position, we find that he has abandoned the argument.

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