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Trial counsel in TPR reasonably advised incarcerated parent to admit grounds for termination

Kenosha County DHS v. A.C., 2015AP151, District 2, 7/22/15 (one-judge decision; ineligible for publication); case activity

Trial counsel for A.C. in his TPR proceeding wasn’t ineffective for failing to tell A.C. that his incarceration was not enough by itself to terminate his parental rights or for failing to challenge the TPR proceeding on the basis that the grounds were unconstitutional as applied to A.C. because, based on his incarceration, the conditions for return were impossible to meet.

A.C. was already subject to a continuing CHIPS order when he ended up incarcerated. His incarceration meant he couldn’t comply with some of the conditions of return (e.g., maintain a suitable residence). After he was incarcerated, the CHIPS order was amended to add new conditions he could meet while incarcerated (e.g., write letters to his child). (¶¶2-3). Shortly thereafter the County filed the inevitable TPR petition alleging continuing CHIPS and failure to assume parental responsibility. A.C. admitted the continuing CHIPS grounds, and the failure to assume ground was dismissed. (¶4).

A.C. claimed his lawyer never told him that he couldn’t be terminated for failing to meet a condition of return that was rendered impossible by his incarceration, Kenosha County v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. (¶10). But trial counsel testified that he was aware of Jodie W. and that he advised A.C. to admit the CHIPS ground because he couldn’t defend against it based on A.C.’s failure to meet the conditions he could have complied with despite his incarceration. Moreover, trial counsel thought it was better to admit the CHIPS grounds, get rid of the failure to assume ground, and take the shot at disposition, where their chances would be better based on his completion of prison programming and the dismissal of the failure to assume ground. (¶¶13-17). The court of appeals holds trial counsel’s strategy was reasonable:

¶21     With the various bases on which A.C. failed to satisfy the conditions of return and conditions specifically related to his incarceration, trial counsel apparently believed he was unlikely to succeed with a jury on both grounds and that it was a better strategy to plead to one and then focus his arguments on the disposition phase. It is always easy to look back with hindsight and contend counsel should have handled things differently; however, we are to avoid looking with the benefit of hindsight. See [State v.] Domke, [2011 WI 95,] 337 Wis. 2d 268, ¶36[, 805 N.W.2d 364]. Had counsel succeeded in avoiding a decision to terminate A.C.’s parental rights, A.C. likely would have thought counsel a genius with his strategy to concede the continuing CHIPS ground, jettison the failure to assume parental responsibility ground, and position A.C. in the best possible light for arguing to the court that his parental rights should not be terminated. That the disposition hearing did not turn out as he had hoped does not mean counsel was deficient with his choice of strategy.

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