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Reference to “best interests of the child” during grounds phase of TPR deemed not prejudicial

Winnebago County DHS v. Christina M.C., 2013AP1519/1520; District 2; 11/27/13 (1-judge; ineligible for publication); case activity

In the initial “grounds” stage of this TPR, the County and the GAL made several veiled references, plus one explicit reference, to the “bests of the child,” a topic that’s not to be addressed until stage 2.  Christina moved to set aside the finding that she is unfit as a parent, arguing that her trial counsel was ineffective in failing to object to these comments.  The court of appeals, skipping over Strickland‘s “deficient performance” prong, held that Christina could not satisfy the “prejudice” prong because neither the jury instructions nor the special verdict form referenced the “best interest of the child.”

¶8 Only one of the statements that Christina finds objectionable contains the phrase “best interest of the children.” That reference by the GAL was in the context of the original CHIPS order and the conditions placed on her children’s return and was not an instruction to the jury. Cf. Scott S., 230 Wis. 2d at 469. Likewise, the County’s reference to “the children” as the “focus” of the proceedings was in no way an instruction to consider the best interests of the children during the first stage.

¶9 The second statement by the GAL, in which he told the jurors that “we’re looking at the kids” and the jurors’ “answers must be yes” on the special verdict form, came closer to the line. But any error was cured by the specific questions on the special verdict forms, which did not refer to the best interests of the children, and by the court’s instructions as to what the jury should consider in answering those questions and how to treat closing arguments. “We presume that the jury follows the instructions given to it.” State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). Christina has not shown that she was prejudiced by the closing arguments or her counsel’s failure to object, and therefore, she cannot prevail on her claim of ineffective assistance of counsel. See Strickland, 466 U.S. at 697.

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