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Introduction of evidence of prior TPR, parenting of other children, didn’t entitle parent to new TPR trial

Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity

A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.

A.C. argued her trial counsel failed to: 1) seek a pretrial order prohibiting evidence about the termination of her parental rights to another child, T.W., who isn’t a party to this case; 2) object to testimony about termination of her rights to T.W.; 3) seek a pretrial order prohibiting evidence about her parenting of T.W. and S.C., a fourth child of A.C.’s; and 4) object at trial to testimony about her parenting of T.W. and S.C.

As to the first ground, the parties agreed before trial that the County wouldn’t introduce evidence that A.C.’s parental rights to T.W. had been terminated, and the County didn’t elicit the evidence; instead, the witness who testified about the prior TPR did so upon his own volition. Because there’s no basis to conclude the witness would not have testified in the same manner had A.C. obtained a pretrial order, trial counsel wasn’t deficient for not getting such an order. (¶11).

Next, trial counsel wasn’t deficient for not objecting to the witness’s testimony about the prior TPR involving T.W. Trial counsel explained she didn’t object because she didn’t want to draw attention to the evidence; this explanation shows a reasonable strategic decision because it is not an “irrational trial tactic” or “based upon caprice rather than upon judgment.” State v. Domke, 2011 WI 95, ¶49, 337 Wis. 2d 268, 805 N.W.2d 364. (¶12).

Lastly, trial counsel wasn’t deficient for not trying to exclude or object to evidence about A.C.’s parenting conduct toward T.W. and S.C. because the evidence was relevant to predicting A.C.’s chances of complying with conditions for return of her children in the future. La Crosse Cty. Dep’t of Human Servs. v. Tara P., 2002 WI App 84, ¶13, 252 Wis. 2d 179, 643 N.W.2d 194. Also, the probative value of the evidence was not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (¶¶13-17). And even if the evidence should have been excluded, it didn’t prejudice A.C. given the cautionary instruction to the jury about the limited purpose of the evidence. (¶¶18-20).

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