Here is a result we don’t often see: a successful ineffective assistance of counsel claim in a TPR case. A jury found grounds to terminate “Richard’s” parental rights. Allegedly, he had failed to assume parental responsibility for his daughter, “Morgan.” On appeal, he argued that his trial counsel failed to introduce evidence to explain his lack of contact with Morgan and that he was prevented from establishing a relationship with her. The court of appeals agreed that counsel was ineffective.
This is a private TPR case. “Michelle” wanted Morgan to be adopted. To that end, she worked with a representative from Bethany Christian Services, an adoption agency. Michelle gave birth to Morgan in September 2019. Richard never got to see Morgan. The prospective adoptive parents whisked her away from the hospital and took her to their home in Alabama.
Just 10 days later, Michelle filed a petition to terminate Richard’s parental rights arguing that he had failed to assume parental responsibility. Richard contested the petition, sought visitation, established his paternity, and requested the appointment of SPD counsel.
Richard received counsel on January 28, 2020, but counsel was not prepared to address the motion for visitation. The motion was set for June 11, 2020–9 months after Morgan’s birth. And the circuit court refused to allow any contact visitation until the motion was heard. Opinion, ¶6.
The circuit court noted that normally Richard would have been allowed face-to-face visits with Morgan. It refused to allow them due to the pandemic. It was not in morgan’s best interest to be exposed to Covid. It also refused virtual visits because they would disrupt Morgan’s “current environment.” The trial was only 109 days away, reasoned the circuit court, so there was no need to disrupt Morgan’s life if Richard’s rights were going to be terminated anyway. The court noted that in the past Richard had used marijuana and had anger issues. It did not want Richard interacting with Morgan while high. Opinion, ¶12.
The circuit court barred Richard from having direct contact with Morgan. It only allowed him to email the adoptive parents. In one email, the adoptive parents told Richard it would be traumatic for Morgan if she had to leave their family. They would send pictures and updates to him if they could resolve the matter amicably out of court.
At trial, Michelle, the adoption representative, and the adoptive parents testified that Richard failed to provide financial support, gifts, cards, or anything else for Morgan’s care since her birth. Email contact hadn’t lasted long. Richard had failed to become the adjudicated father, and he wanted the adoption representative to communicate only through his lawyer.
During deliberations, the jury asked the court why there were no email communications from November 2020 until the trial in June 2021. The judge replied that there was no evidence in the record to answer that question. Is it any wonder the jury found that Richard failed to assume parental responsibility? Two jurors dissented from that verdict. Opinion, ¶17.
Our appellate courts often pay lip service to the principle that:
Terminations of parental rights affect some of parents’ most fundamental human rights. At stake for a parent is his or her interest in the companionship, care, custody, and management of his or her child. Further, the permanency of termination orders work[s] a unique kind of deprivation. In contrast to matters modifiable at the parties’ will or based on changed circumstances, termination adjudications involve the awesome authority of the State to destroy permanently all legal recognition of the parental relationship. For these reasons, parental termination decrees are among the most severe forms of state action. In Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768.
But here, the court of appeals abided by it and said that due to the severe consequences of a TPR, it must respect heightened legal safeguards, including making the parents’ rights paramount during the grounds phase. Opinion, ¶22.
Long story short. The court of appeals held that trial counsel performed deficiently because she failed to introduce evidence of Richard’s efforts to seek visitation and the court orders that prevented him from doing much else. She didn’t elicit evidence that the couple caring for Morgan were not foster parents; they were trying to adopt her. And she didn’t elicit evidence that the Bethany Christian Services representative was not a neutral social worker; she was advocating for the adoptive parents. Opinion, ¶¶25-31.
The court of appeals further held that if the jury had heard all of this evidence (and even more that trial counsel failed to elicit) there was a reasonable probability of a different outcome. Opinion, ¶36. It reversed the order terminating Richard’s parental rights and remanded the case for a fact-finding hearing on whether there were grounds to terminate them.