Kenosha County DC&FS v. M.A.M. ( 2024 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 24, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos. 2023AP1643 Cir. Ct. Nos. 2022TP4
2022TP5
2023AP1644 2022TP6
2023AP1645
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
NO. 2023AP1643
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.G.O.,
A PERSON UNDER THE AGE OF 18:
KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,
PETITIONER-RESPONDENT,
V.
M.A.M.,
RESPONDENT-APPELLANT.
NO. 2023AP1644
IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.G.O.,
A PERSON UNDER THE AGE OF 18:
KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,
Nos. 2023AP1643
2023AP1644
2023AP1645
PETITIONER-RESPONDENT,
V.
M.A.M.,
RESPONDENT-APPELLANT.
NO. 2023AP1645
IN RE THE TERMINATION OF PARENTAL RIGHTS TO Z.G.O.,
A PERSON UNDER THE AGE OF 18:
KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,
PETITIONER-RESPONDENT,
V.
M.A.M.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Kenosha County:
CHAD G. KERKMAN, Judge. Affirmed.
¶1 NEUBAUER, J.1 M.A.M., referred to herein by the pseudonym
Mary, appeals from orders terminating her parental rights to three of her children,
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
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J.G.O., M.G.O., and Z.G.O., referred to herein by the pseudonyms Jamie, Michael,
and Zachary, and from orders denying her motions for postdisposition relief.
Mary argues that her trial counsel provided ineffective assistance by admitting
certain requests for admission and by failing to oppose a summary judgment
motion filed by the Kenosha County Division of Children and Family Services
(the County). She argues that these errors prejudiced her because they relieved the
County of its burden to prove her unfitness by clear and convincing evidence. The
circuit court disagreed, concluding that her trial counsel’s conduct was consistent
with a strategy agreed upon by Mary and her counsel not to oppose the grounds
asserted by the County and instead to argue that termination was not in her
children’s best interests. For the reasons set forth below, this court concludes that
Mary has not established the first prong of an ineffective assistance claim,
deficient performance. In light of this conclusion, this court affirms the orders
terminating her parental rights.
BACKGROUND
I. Termination Proceedings
¶2 Termination of parental rights proceedings involve two phases: the
grounds phase and the dispositional phase. See Sheboygan Cnty. Dep’t of Health
& Hum. Servs. v. Julie A.B., 2002 WI 95, ¶¶24-28, 255 Wis. 2d 170, 648 N.W.2d
402. In the grounds phase, the finder of fact must determine whether the
government establishes the ground or grounds it pleaded “for involuntary
termination under WIS. STAT. § 48.415.” Tammy W-G. v. Jacob T., 2011 WI 30,
¶18, 333 Wis. 2d 273, 797 N.W.2d 854. If the factfinder determines that the
government has established grounds to terminate under § 48.415, “the court shall
find the parent unfit.” WIS. STAT. § 48.424(4). The proceeding then enters the
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second, dispositional phase, during which “the court is called upon to decide
whether it is in the best interest of the child that the parent’s rights be permanently
extinguished.” See Steven V. v. Kelley H., 2004 WI 47, ¶27, 271 Wis. 2d 1, 678
N.W.2d 856; see also WIS. STAT. § 48.426(2).
¶3 In January 2022, the County filed petitions to terminate the parental
rights of Mary and the father of then-five-year-old Jamie, seven-year-old Michael,
and nine-year-old Zachary. (The father is referred to herein by the pseudonym
Adam. Adam’s appeals from the circuit court’s orders terminating his parental
rights are addressed in a separate opinion.) In affidavits attached to the petitions,
social worker Katherine Schroeder explained that the children had been removed
from Mary and Adam’s home in January 2019 and had been found to be in need of
protection or services under WIS. STAT. § 48.13(10) in June 2019. In July of that
year, dispositional orders were entered placing the children outside their parents’
home and imposing conditions the parents would have to meet before their
children would be returned.
¶4 In the termination petitions, the County raised one ground to
terminate Mary’s parental rights—the children’s continuing need of protection or
services. See WIS. STAT. § 48.415(2). That ground requires proof of three things:
(1) “the child has been adjudged to be a child … in need of protection or services
and placed … outside his or her home pursuant to one or more court orders”;
(2) “the agency responsible for the care of the child … has made a reasonable
effort to provide the services ordered by the court”; and (3) “the child has been
placed outside the home for a cumulative total period of 6 months or longer
pursuant to an order listed under subd. 1. [and] the parent has failed to meet the
conditions established for the safe return of the child to the home.”
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Sec. 48.415(2)(a)1.-3. Schroeder explained in her affidavits that despite the
County’s reasonable efforts to provide the services that had been ordered for Mary
in 2019, Mary had failed to meet the conditions for the safe return of her children.
¶5 Mary appeared with her attorney, Brian Rolf, at a hearing on
March 1, 2022, at which she denied the County’s allegations and requested a jury
trial. Later that month, the County served sets of 280 requests for admission under
WIS. STAT. § 804.11. See WIS. STAT. § 48.293(4) (stating that “the discovery
procedures permitted under [WIS. STAT.] ch. 804 shall apply in all proceedings
under this chapter”). The requests addressed various topics, including events in
the years preceding the children being removed from Mary and Adam’s home, the
events and circumstances that led to the children’s removal from the home, and
facts relevant to the children’s continued need of protection or services. With
Rolf’s assistance, Mary admitted 259 of the requests. Among other things, Mary
admitted that: (1) her children had resided outside her home for more than six
months since entry of the dispositional orders in 2019; (2) the County had “made a
reasonable effort to provide the services ordered by the court”; and (3) Mary had
not met all the conditions for the safe return of her children.
¶6 The County subsequently moved for summary judgment, asserting
that Mary’s admissions established beyond genuine dispute the elements for
termination on the ground of continuing need of protection or services. Mary did
not file written responses to the County’s motions. At a hearing in August 2022 at
which Mary was present, Rolf informed the circuit court that Mary was “not
objecting to … the Motions [f]or Summary Judgment at this time.” The court
granted the County’s motions and later held a dispositional hearing at which Rolf
argued that the court should terminate Adam’s parental rights but not Mary’s. The
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court declined to do so, concluding that the factors pertaining to the best interest
standard under WIS. STAT. § 48.426(3) “[were] overwhelmingly in favor of
termination” of both parents’ rights.
II. Postdisposition Proceedings
¶7 Following the entry of orders terminating her parental rights, Mary,
through new counsel, filed a postdisposition motion alleging that Rolf had
rendered ineffective assistance in admitting many of the County’s requests for
admission, which the circuit court relied on in granting summary judgment to the
County in the grounds phase. The court held a two-day evidentiary hearing on
Mary’s motion (and a similar motion filed by Adam).
¶8 Rolf testified at the hearing about his representation of Mary and the
strategy they developed, which was based on her wish not to contest the grounds
for termination and instead focus on Adam as “the real problem” in the family and
urge the circuit court to terminate his parental rights but not hers:
So [Mary] had made it very clear early … as we were
discussing how we were going to proceed that she did not
wish to actually have a full trial on this matter or even a
bench trial. That she didn’t want kind of other people
getting involved in that way. And she didn’t want to have
the trial just in front of the judge.
We had developed a strategy at the time, because we
didn’t know what [Adam] was doing, we were maintaining
a trial posture. But … our long-term plan at that time was
that we were expecting to either enter a plea to the matter
that she had not met the Conditions of Return or depending
on how the State moved with the Request for Admissions
and then go to the disposition and we were going to argue
at disposition that the ongoing issues had been [Adam] in
the case.
That he was the real problem, the root of the problem.
That the only way to actively allow [Mary] to actually
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make real progress to be able to get the children back was
to terminate his parental rights, but not [Mary]’s parental
rights to allow her to continue going forward. Ultimately,
that was the argument we made at the disposition as well.
Rolf testified that this strategy emerged early in the representation “when [he]
presented her the different options that she could proceed with long-term and
when she indicated she didn’t want a trial [he] said, okay, well, then here’s some
kind of general strategies and general ideas that we can do.” He confirmed that he
explained “quite extensively” to Mary “the legal consequences of pleading to the
grounds in the [p]etition.” He also testified that he revisited the strategy with
Mary “generally every time we spoke” to confirm that she still wished to pursue it
and specific actions that would be taken pursuant to it. According to Rolf, Mary
never told him she had changed her mind about the strategy.
¶9 Rolf denied that he had tried to talk Mary out of proceeding to trial
in the grounds phase because that decision, in his view, belongs to the client, and
he “generally [doesn’t] try to influence clients on which way they should or
shouldn’t go. In that regard I just want to lay out [the] options,” the likely
arguments of the parties, how trials and pleas work, and the consequences of each.
¶10 Rolf testified that after receiving the County’s requests for
admission, he forwarded a copy to Mary and set up a meeting with her to discuss
them. Before that meeting, Rolf reviewed the requests and “tr[ied] to match up
every question with what was in the discovery” he had received from the County.
He testified that he “spent a considerable amount of time explaining the process
and what the requests were” as well as the legal effect of admissions to Mary at
their in-person meeting and over the phone. He did so in part because a
psychological evaluation ordered by the circuit court had revealed that Mary
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suffered from multiple psychological and learning disorders, read at a fifth-grade
level, and was impaired in both expressive and receptive vocabulary. Despite
these impairments, Rolf described her behavior as “not atypical” compared to
other parents he has represented in termination of rights proceedings.
¶11 Rolf also testified about the approach he took with respect to the
requests for admission. He explained that if Mary disagreed with him as to how to
respond to a particular request, they would discuss it, and if she disagreed with his
recommendation, Rolf’s “position as her attorney was that that was her answer and
that I was to let her answer the question … that way then. Essentially deferring to
her in those instances if she disagreed with it.” As an example, with respect to the
request concerning the County’s efforts to provide court-ordered services to Mary,
Rolf testified that he “spoke with [her] extensively on whether or not their efforts
were reasonable” and “ended up going with an admission … not necessarily
because [he] thought an admission was correct, but because she at the time
indicated … that she felt that they had been reasonable in their efforts.” Rolf
confirmed that he explained the legal term “reasonable efforts” to Mary and
believed she understood what it meant.
¶12 Similarly, Rolf testified that he and Mary decided not to oppose the
County’s summary judgment motions
based partially on the strategy we had devised where
[Mary] did not wish to have a trial. I explained to her that
if we entered—if we objected or—to it and then entered a
plea to the questions or if we didn’t object to it, I explained
how all that would have played out for the different cases.
And, ultimately, we decided not to object … and move on
to the disposition for the hearing to make the argument that
it should only have been [Adam’s parental rights] that
should be terminated ….”
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¶13 At the conclusion of the hearing, the circuit court denied Mary’s
motion. The court found Rolf’s testimony credible and that the requests for
admission, which were answered by Mary, “were all answered appropriately with
the exception of one or two that were in error” but which had “no material
significance to the case.” The court found that Rolf consulted with Mary about
their strategy for the proceeding, that she did not want to have a trial in the
grounds phase, and that “everything Attorney Rolf did was consistent with” the
strategy Mary wanted to pursue. Based upon these findings, the court concluded
that Mary had not shown that Rolf’s performance was deficient or that she was
prejudiced by it.
DISCUSSION
¶14 Parents in termination proceedings have the right to effective
assistance of counsel. State v. A.S., 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52(1992). Ineffective assistance claims are evaluated under the two-part test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of
ineffective assistance, Mary must prove two things: deficient performance and
prejudice. See id. at 687. Deficient performance is that which falls “below an
objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, 466 U.S. at 688). Mary must show that Rolf made
errors that were so serious that he “was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” See State v. Trawitzki, 2001
WI 77, ¶40, 244 Wis. 2d 523, 628 N.W.2d 801 (citation omitted). To prove
prejudice, Mary must show that Rolf’s “errors were so serious as to deprive [her]
of a fair [proceeding] whose result is reliable.” See Strickland, 466 U.S. at 687.
Mary “must show that there is a reasonable probability that, but for [Rolf]’s
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unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” See id. at 694.
¶15 In analyzing Mary’s arguments, this court’s review of Rolf’s
performance is “highly deferential.” See id. at 689; Harrington v. Richter, 562
U.S. 86, 105 (2011). This court must attempt “to eliminate the distorting effects of
hindsight” and evaluate his performance “from [his] perspective at the time.” See
Strickland, 466 U.S. at 689. “Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance ….” Id. “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690-91.
¶16 Ineffective assistance claims present mixed questions of law and
fact. State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848 N.W.2d 786. This
court “uphold[s] the [trial] court’s findings of fact, including the circumstances of
the case and the counsel’s conduct and strategy, unless they are clearly erroneous.”
Id. Whether counsel’s performance meets the legal standard for ineffective
assistance is “a question of law that this court decides de novo.” State v. Domke,
2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364.
¶17 Mary contends that Rolf’s performance was deficient in several
respects. She argues first that Rolf was deficient in admitting several requests for
admission that “had questions of fact and were dispositive of the entire case.”
Specifically, she points to the requests concerning whether the County made a
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reasonable effort to provide the court-ordered services and whether Mary had met
all of the conditions for return. Mary denies that she told Rolf to admit these
requests and argues she had met some of the conditions, suggesting that a partial
denial would have been appropriate. See WIS. STAT. § 804.11(1)(b) (“when good
faith requires that a party qualify an answer or deny only a part of the matter of
which an admission is requested, the party shall specify so much of it as is true
and qualify or deny the remainder”). She also contends that two of her other
admissions were erroneous and that Rolf unreasonably interpreted (and admitted)
several other requests that could have been denied.
¶18 These arguments are not sufficient to overcome the “strong
presumption that [Rolf]’s conduct falls within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689. The record on Mary’s
postdisposition motion consists solely of Rolf’s testimony, which the circuit court
found credible. Mary did not testify, and there is no evidence that she told Rolf
not to admit that the County had made reasonable efforts or that she had not met
the conditions for return lacks support in the record. Thus, Mary’s assertion to the
contrary in her appellate brief lacks support in the record.
¶19 All that the circuit court (and this court) have to go on is Rolf’s
testimony that the responses to the requests for admission were crafted with
Mary’s input and pursuant to her desire not to have a trial in the grounds phase and
instead to focus on making the case in the dispositional phase that only Adam’s
parental rights should be terminated. Rolf testified that he typically reviews a
client’s options at the outset of a representation and that Mary told him early in the
representation that she wanted to avoid a trial. He confirmed that this remained
Mary’s goal throughout the grounds phase and explained that because the
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responses were hers to make, he deferred to her when they disagreed on how to
answer a request. As an example, Rolf testified that Mary decided to admit that
the County had made reasonable efforts to provide court-ordered services, even
though Rolf did not necessarily think that was the case, because Mary believed
they had done so.
¶20 Having agreed to pursue a strategy of nonopposition during the
grounds phase, Mary cannot now claim that Rolf rendered deficient performance
by acting in furtherance of that strategy. See, e.g., State v. Mull, 2023 WI 26, ¶49,
406 Wis. 2d 491, 987 N.W.2d 707 (“That a different trial strategy may look better
in hindsight does not render a reasonable strategy deficient performance.”); State
v. Eckert, 203 Wis. 2d 497, 510, 553 N.W.2d 539 (Ct. App. 1996) (holding that
client “does not receive ineffective assistance where defense counsel has discussed
with the client the general theory of defense” and makes strategic decisions in
furtherance of that strategy); United States v. Weaver, 882 F.2d 1128, 1140 (7th
Cir. 1989) (“Where a defendant, fully informed of the reasonable options before
him, agrees to follow a particular strategy at trial, that strategy cannot later form
the basis of a claim of ineffective assistance of counsel.”).
¶21 Mary argues next that Rolf was deficient in not opposing the
County’s summary judgment motions, which she argues relied on numerous
“irrelevant” responses to the requests for admission. She acknowledges Rolf’s
testimony that he did not oppose the motions because of the strategic decision he
and Mary pursued not to have a trial in the grounds phase but argues that Rolf’s
failure to oppose the motions is not entitled to the deference normally accorded to
such strategic decisions for two reasons. See Strickland, 466 U.S. at 690-91.
First, she argues that the strategic goal, as articulated by Rolf, was actually to enter
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a plea at the grounds phase, which was eliminated as a possibility when Rolf did
not oppose the County’s summary judgment motion. That is not an accurate
reflection of Rolf’s testimony: when asked specifically why he did not oppose the
motions, Rolf reiterated that Mary’s overarching goal was to avoid a trial, not to
do so specifically by entering a plea. Rolf acknowledged that entering a plea was
a possibility he discussed with Mary but stated that after the County filed its
motions, she and Rolf made the decision not to oppose them so the proceeding
could move to the disposition phase. Mary points to nothing in the postdisposition
record which refutes that testimony or suggests that she directed Rolf to arrange a
plea or that the County would have agreed to that resolution.
¶22 Second, Mary argues that an “ordinarily prudent attorney” would not
have adopted Rolf’s strategy. She contends “that she did not want to give up her
right to a trial on the grounds” and that Rolf could have negotiated a “beneficial
plea deal” or had Mary plead no contest, which would have required the County to
prove the grounds by clear and convincing evidence. She also contends that Rolf
offered shifting explanations of his efforts to negotiate a plea with the County.
¶23 Again, however, none of these arguments is supported by evidence
in the record upon which this court could conclude that Rolf’s performance was
deficient. Mary’s unsupported assertion that she did not want to relinquish her
right to a trial is contrary to Rolf’s sworn testimony to the contrary and thus not
sufficient to render the circuit court’s findings “that the trial strategy was to not
have a trial and that was [Mary]’s position” clearly erroneous. Nor does Mary
point to any evidence in the record to suggest that the County would have agreed
to a “beneficial plea deal” for her. Finally, Mary provides no reason to believe
that, had she pled no contest to the grounds, the County would have been unable to
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prove by clear and convincing evidence the three elements needed to show that her
children were in continuing need of protection or services. Her argument in this
respect is entirely speculative.
¶24 For these reasons, this court concludes that Mary has not carried her
burden to show that Rolf’s performance was deficient. In light of this conclusion,
this court need not address whether she has met her burden of establishing
prejudice, the other element of an ineffective assistance claim. See State v.
McReynolds, 2022 WI App 25, ¶21, 402 Wis. 2d 175, 975 N.W.2d 265.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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