DocketNumber: Appeal Nos. 2018AP967; 2018AP968
Citation Numbers: 921 N.W.2d 8, 2018 WI App 62, 384 Wis. 2d 272
Judges: Kessler
Filed Date: 8/21/2018
Status: Precedential
Modified Date: 10/16/2022
¶ 1 T.W. appeals from the orders of the circuit court terminating her parental rights to her children, C.O.J.-W. and X.L.J.-W. She also appeals the order denying her post-disposition motions. T.W. contends that she received ineffective assistance of counsel because counsel did not object to statements made during the guardian ad litem's (GAL) closing arguments regarding the best interests of the children. We affirm.
BACKGROUND
¶ 2 On July 20, 2016, the State filed petitions to terminate T.W.'s parental rights to two of her children, C.O.J.-W. and X.L.J.-W., alleging that the children were in need of continuing protection or services (continuing CHIPS) and failure to assume parental responsibility.
¶ 3 The matter proceeded to a fact-finding trial where multiple witnesses testified. During closing arguments, the GAL addressed the evidence presented, noted the history of domestic violence between T.W. and the children's father, and commended T.W.'s efforts. The GAL also opined that T.W. was not capable of meeting the conditions for her children's return within the following nine months, stating:
You need to ask yourselves with the evidence that's been provided each one of those elements that was provided to you beyond your jury instruction sheet. Tough. A tough decision. Tough decision. It is. But what's in the best-Strike that. What is in the interest of the children? That's most important. And has the DA and myself proven those elements? I'm confident that we have.
It's not pretty, it's not nice. But is evidence there to substantiate everything that the DA has alleged? Yes, I believe so. And, as a result, we ask that you at the end of the day after you've deliberated and during your deliberation, you check yes to every one of those elements because they've been proven. Thank you.
¶ 4 The jury found that the State failed to prove the elements of failure to assume parental responsibility, but that the State met the burden of proving continuing CHIPS. The verdict was not unanimous-two jurors dissented. The circuit court made the requisite finding of unfitness. The matter proceeded to disposition, where the circuit court found that terminating T.W.'s parental rights was in the best interests of the children.
¶ 5 T.W. filed notices of appeal and motions for remand with this court. We granted the motions. T.W. then filed post-disposition motions
¶ 6 The circuit court denied the motion without a hearing, noting that the GAL's comment was "fleeting" and that sufficient evidence supported the jury's verdict.
¶ 7 This appeal follows.
DISCUSSION
¶ 8 To succeed on a claim for ineffective assistance of counsel, T.W. has to show that her trial counsel's performance was deficient and prejudicial. See Strickland v. Washington ,
¶ 9 In Door County Department of Health and Family Services v. Scott S. ,
¶ 10 Moreover, T.W.'s assertion that a potential dissenting juror changed his mind because of the GAL's statement is purely speculative.
¶ 11 For the foregoing reasons, we conclude that T.W. has failed to show that counsel's failure to object to the GAL's closing remarks was prejudicial to her case. Accordingly, we affirm.
By the Court. -Orders affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
This appeal is decided by one judge pursuant to
T.W. filed separate notices of appeal and separate motions for each child.
The record does not actually state that one of the jurors initially planned to dissent but then changed his mind. Rather, when the circuit court polled the jury following the trial, one juror told the court that "[i]t was an undecided as to Question 4 ... and then an eventual decision."