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TPR order survives ineffective assistance of counsel claim and and constitutional challenges

State v. V.A., 2015AP1614, 7/19/16, District 1 (1-judge opinion; ineligible for publication); case activity

V.A. presented many issues on appeal, and the court rejected all of them. The most interesting ones concern collateral attacks on CHIPS orders, competency, and whether Wisconsin’s “failure to assume parental responsibility” statute is unconstitutional as applied to V.A.

Collateral attack on CHIPS order. V.A. argued that her trial counsel was ineffective for failing to collaterally attack an order finding that her son, M.R.H., was a child in need of protective services. In general, a judgment is not subject to collateral attack unless it was procured by fraud.  Slip op. ¶26 (citing Oneida Cnty. Dep’t of Soc. Servs. v. Nicole W., 2007 WI 30, 299 Wis. 2d 637, 728 N.W.2d 652.) The court of appeals noted that the same rule applies to CHIPS orders. Because V.A. offered no evidence of fraud, trial counsel did not perform deficiently for failing to launch a collateral attack.

Note Abrahamson’s dissent in Nicole W. She criticized the majority for addressing collateral attacks in TPRs when the issue was not before SCOW and had not been briefed by the parties. Nicole W., ¶57.

Competency. The court of appeals declined to address V.A.’s argument that it was unconstitutional for the trial court to terminate her parental rights because she was incompetent when she entered her plea to the CHIPS order.  It held that V.A. had not adequately briefed the issue.¶29 (citing State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992)).

On a related note, V.A. faulted her trial counsel for failing to get a second psychological evaluation of her for trial given that the first evaluation concluded that: (a) she had a 63 IQ and tested at a 1st grade reading level, (b) struggled with comprehension, processing information and making decisions, and (c) would have significant trouble meeting basic adult responsibilities. ¶¶15, 31. Trial counsel testified that he did not get a second evaluation because his impressions of V.A. were consistent with the first evaluation and because a second evaluation could have yielded an even more damaging opinion.  The court of appeals held this to be a reasonable strategic decision by counsel, hence he did not perform deficiently. ¶31.

Wait a second. The first psychologist evaluated V.A for competency and found that she couldn’t do more than routine menial tasks or even care for herself. And a second evaluation might have been worse? V.A.’s argument that she was incompetent at the time she entered her plea to the CHIPS order would seem to have some legs.  Yet the court of appeals dodges behind Pettit to avoid this important constitutional issue.

“As applied” challenge to  §48.415(6). V.A. also argued that it was impossible for her to assume parental responsibility given that the Bureau of Milwaukee Child Welfare detained MRH at birth. Therefore, §48.415(6) is unconstitutional as applied to her.  The court of appeals rejected this contention on the law and the facts.

¶40 There is nothing in WIS. STAT. § 48.415(6) that requires the child to be living with the parent in order for the parent to assume parental responsibility. Furthermore, the Wisconsin Supreme Court has held that a totality of the circumstances test should be used when determining whether a parent assumed parental responsibility. See Tammy W-G v. Jacob T., 2011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d 854.

¶41 V.A.’s argument ignores the overwhelming evidence in the record that shows her lack of a relationship with M.R.H. resulted from her own actions, not those of the State.


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