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Parents in TPR proceeding not prejudiced by GAL’s connections to judge and prior representation of child at CHIPS hearing

Manitowoc County Human Services Dep’t v. Rebecca H, 2013AP421/422; 1/22/14; District 2 (not recommended for publication); case activity

This is an appeal from an order terminating a couple’s parental rights to their daughter.  They claimed their trial lawyer provided ineffective of assistance of counsel by failing to object to the admission of various types of evidence.  The court of appeals quickly disposed of those errors through repeated findings that counsel’s performance was not deficient–which is one of the two requirements for ineffective assistance of counsel per A.S. v. State, 168 Wis. 2d 995, 1005, 485 N.W.2d 52 (1992).

The more interesting issue is whether trial counsel was ineffective for allowing them to waive of the GAL’s conflicts of interest.  It seems the GAL previously represented the daughter at a CHIPS proceeding and was employed by a firm that supported the judge’s campaign and employed his wife on a contract basis.  The court of appeals rejected this particular IAC claim for lack of prejudice:

First, without more, we can see no prejudice posed by the GAL’s employment in a law firm with previous connections to the presiding judge, and Rebecca and Craig have not developed such an argument for us. Second, the GAL’s representation of Rebecca at a CHIPS hearing does not automatically disqualify her when there is no indication that confidential information was disclosed during that brief time that could taint the proceedings. Cf. State v. Smith, 198 Wis. 2d 584, 588-89, 590, 542 N.W.2d 512 (Ct. App. 1995).  Rebecca and Craig have not argued that the GAL used any information that she received as Rebecca’s counsel against Rebecca or Craig at trial. Instead, they argue that even with valid waivers, disqualification of the GAL was necessary and a new trial is required. We disagree with such a drastic remedy. The costs and delays associated with repeating both the fact-finding and dispositional stages of these proceedings are unwarranted “unless there is a danger that [their] rights have been compromised.” Id. at 590. As neither has claimed there has been actual prejudice, or supplied any information from which we might find actual prejudice, there is no reason to invalidate the prior proceeding.  Slip op. ¶13.

A variation of this problem arose in State v. Troy J., 2010AP670, see prior post here, where the question was whether the judge presiding over a TPR should have disqualified himself because his daughter worked as a GAL at the agency that provided the GAL work, though the daughter herself was not involved in the case.  Here, the challenge was not aimed at the judge, but rather at counsel for allowing them to waive GAL’s supposed conflict.


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