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TPR affirmed against welter of challenges

Pierce County v. C.S., 2015AP1463 & 2015AP1464, District 3, 2/26/16 (one-judge decision; ineligible for publication); case activity

C.S. challenges the orders terminating her parental rights to her sons, D. S. and K. S., based on their continuing need for protection or services. She raises multiple, fact-specific claims of ineffective assistance of trial counsel and circuit court error. All her claims are rejected.

Ineffective assistance of counsel

C.S. argued her first trial lawyer was ineffective for failing to object to the circuit court’s ruling that C.S. waived her right to request a jury by failing to appear at the adjourned initial hearing. The court of appeals holds any deficiency was not prejudicial because even if a jury had heard the case instead of the judge, it is not reasonably probable the jury would have concluded C.S. would meet the conditions for return of the children. (¶¶20-26). C.S. argued her second attorney was ineffective in seven ways, ranging from failure to investigate and prepare to eliciting damaging testimony, but the court holds C.S. either fails to show the attorney’s conduct was deficient or, if it was, that it was prejudicial. (¶¶27-35).

Circuit court errors

C.S. argues the circuit court erred in denying a request by C.S.’s second lawyer for a continuance because she had been appointed shortly before the continued dispositional hearing and needed time to review the case and learn what had happened at the grounds hearing and initial dispositional hearing. Whether to grant or deny a continuance is left to a circuit court’s discretion; while some of the relevant factors supported granting a continuance, not all of them did, and in any event the circuit court properly exercised its discretion by applying the relevant factors, explaining its reasoning, and reaching a reasonable conclusion. (¶¶36-39).

Next, C.S. argues the circuit court improperly allowed a therapist treating one of the children (D.S.) to opine that the child did not have a substantial relationship with C.S. She argues the therapist wasn’t qualified to give this opinion and that the opinion wasn’t based on sufficient facts and data to meet the Daubert standard. The court holds the record shows the therapist was qualified by training and experience. Further, relying on Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493, the therapist’s testimony regarding the relationships between C.S. and her children is not amenable to analysis under the factors listed in Daubert and that her twenty-five years of experience as a therapist and her observations of the children during their therapy sessions provided a sufficient basis for the testimony to meet the reliability standard under § 907.02(1). (¶¶40-46).

C.S. also alleges the circuit court erroneously exercised its discretion in deciding the best interests of the children warranted termination, but the court of appeals holds the record shows the judge considered all the relevant factors under § 48.426(3) and reached a reasonable decision supported by the record. (¶¶47-56).

Finally, when it denied C.S.’s postdisposition motion, the circuit court relied on information that was either inaccurate or was not in the record. The court of appeals agrees this was improper, but the error was harmless. (¶¶57-61).

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