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Lawyer’s deficient response to TPR summary judgment motion wasn’t prejudicial

S.L.H. v. J.J.D., 2019AP1554, District 2, 3/25/20 (one-judge decision; ineligible for publication); case activity

The lawyer representing J.J.D. (“John”) in his TPR proceeding failed to mount a sufficient defense to the summary judgment motion brought by S.L.H. (“Sarah”). But that deficient performance didn’t prejudice John. The evidence the lawyer failed to present wasn’t enough to raise a genuine issue of material fact, so summary judgment would have been granted anyway.

The TPR petition alleged both failure to assume parental responsibility and abandonment. Sarah’s summary judgment motion was based on the latter, alleging John didn’t visit or communicate with the child for a year. (¶2). John’s lawyer filed a response to the summary judgment motion that made cursory, non-specific assertions that John had good cause for failing to visit or communicate, and he failed to ascertain and set forth the factual assertions John wanted to raise in defense of the allegations. (¶¶3-4). Because John’s counsel failed to support that claim with additional specific information, the circuit court granted summary judgment. (¶5).

John later moved to vacate the summary judgment, alleging that he was incarcerated during much of the time period covered by the abandonment allegation, that he contacted the child while incarcerated, that this information raised a genuine issue of material fact precluding summary judgment, and that his trial lawyer was ineffective for failing to present evidence of this contact. (¶6). While it’s clear John’s trial counsel was deficient in filing a conclusory, unsupported response to the summary judgment motion, the information he could and should have provided would not have made a difference:

¶14     The trial court found, and we agree, that [trial counsel] provided objectively deficient performance by not seeking out evidence to support John’s “good cause” defense prior to the summary judgment hearing. Nonetheless, John has not shown that his attorney’s conduct prejudiced him because he has not shown a reasonable probability that the trial court would have denied the motion had [trial counsel] in fact sought out that evidence. It is certainly likely that John’s incarceration status constituted “good cause” for his failing to visit with Adam from August or September 2017 through August 1, 2018. See Wis. Stat. § 48.415(1)(c)1. Even so, under § 48.415(1)(c)2., it was John’s burden on summary judgment—and therefore his burden in postdispositional proceedings—to present some evidence showing “good cause” for failing to communicate with Adam for at least six months during that period.

¶15     John did not meet this burden. Although both he and [his mother] testified that he regularly called Sarah from prison in order to speak to Adam, the documentary evidence completely refutes this testimony. The phone records establish that there were no calls to Sarah’s phone number from John (either directly or via a three-way call with [his mother]) after November 18, 2017, at the latest (the date of John’s last call to [his mother]) through August 1, 2018—a period of longer than six months. See Wis. Stat. § 48.415(1)(a)3. John stated that this was the only phone number he had for Sarah, and there is no evidence that John attempted to reach Sarah at some other number or using some other number. There is also no evidence that John otherwise tried to communicate with Adam through written letters, cards, or any other means.

¶16    Accordingly, even had [trial counsel] provided reasonably effective assistance on summary judgment, John still would have been unable to raise a genuine issue of material fact—a factual issue being “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” …. Rather, the result would have been the same: without any explanation as to why the phone records were wrong or incomplete, the trial court would have had to conclude that there was “no triable issue of fact” to present to a jury. ….

Given the record here, the court notes, but doesn’t address, the issue of how the standards for summary judgment and ineffective assistance of counsel might interact in a case where trial counsel’s deficient performance caused an improvident grant of summary judgment. (¶19 n.9). It is, as the court says, an issue that hasn’t been addressed in prior cases. Nonetheless, one may wonder how deficient performance could ever be non-prejudicial if it results in an improvident summary judgment and thus deprives a parent of a trial on alleged grounds over which there is a genuine dispute of material fact.

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