State v. N. M. A.-S.

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.
December 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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.
2018AP2308 Cir. Ct. Nos. 2017TP264
2017TP265
2018AP2309
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.A.S., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
N.M.A.-S.,
RESPONDENT-APPELLANT.
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.J.S., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
N.M.A.-S.,
Nos. 2018AP2308
2018AP2309
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
DAVID A. FEISS, Judge. Affirmed.
¶1 BRASH, P.J.1 N.M.A.-S. appeals the orders of the trial court
terminating her parental rights of A.A.S. and A.J.S. N.M.A.-S. asserts that she
received ineffective assistance of counsel because her trial counsel failed to
request a strike for cause or use a peremptory strike for a juror who answered a
question affirmatively during voir dire relating to whether someone struggling
with addiction is unfit to be a parent.
¶2 A postjudgment hearing regarding this claim was held in September
2019. The postjudgment court2 determined that N.M.A.-S. had not demonstrated
that she was prejudiced by this alleged deficiency of trial counsel, and denied her
motion for a new trial. We agree and affirm the orders terminating N.M.A.-S.’s
parental rights.
BACKGROUND
¶3 N.M.A.-S. is the biological mother of A.A.S., born January 17,
2013, and A.J.S., born December 4, 2013. The Division of Milwaukee Child
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
The Honorable David A. Feiss presided over the jury trial and the disposition hearing,
and we refer to him as the trial court. The Honorable M. Joseph Donald presided over the motion
hearing, and we refer to him as the postjudgment court.
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Protective Services (DMCPS)3 became involved with the family after an incident
in August 2014 where A.A.S. was found to have opiates in her system. The police
had been called to a Super 8 hotel on South Howell Avenue in Milwaukee by a
concerned citizen who heard N.M.A.-S. and the children’s father, A.S., “yelling[]
and screaming at each other.” The caller said the parents appeared to be under the
influence of something; they did not smell of alcohol, but were “high as a kite”—
the father was pacing and appeared “jittery and agitated,” and the mother kept
“nodding off.”
¶4 When police arrived, in addition to the parents being under the
influence, they found that A.A.S. had an “altered mental status”: her head was
“drooping” and “she kept falling over.” She was transported to a hospital where it
was discovered that she had ingested an opiate, later determined to be morphine.
Both parents denied having any knowledge of how A.A.S. had gotten the opiates,
although N.M.A.-S. later told a case worker that she took morphine—as well as
Oxycodone and Percocet—for fibromyalgia.
¶5 DMCPS took custody of both A.A.S. and A.J.S. that night, based on
two “present dangers”: one of the children had unexplained injuries, and the
parent—N.M.A.-S.—was currently, and consistently, under the influence of an
intoxicant.4 A.A.S. and A.J.S. were subsequently found to be children in need of
protection or services, and a dispositional order placing the children outside of
3
When these proceedings began, DMCPS was still known by its previous name, the
Bureau of Milwaukee Child Welfare (BMCW). All references will be to the current name,
DMCPS.
4
N.M.A.-S. had a long history of substance abuse that was known to DMCPS. In fact,
when A.A.S. was born, she tested positive for both methadone and cocaine.
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their parents’ home was entered in December 2014. That order required that
N.M.A.-S. maintain sobriety; manage her mental health issues; communicate with
the case manager assigned through DMCPS; and demonstrate that she could
parent the children, protect them, and provide for their safety. Additionally, the
order required that N.M.A.-S. have regular visitation with the children.
¶6 N.M.A.-S. failed to meet these requirements. She did not visit the
children regularly, sometimes going for weeks or months at a time without
contacting them. In fact, she had no contact with the children—including via
telephone or via written or electronic contact—for a three-month period between
November 1, 2016 to February 1, 2017, which constitutes abandonment pursuant
to WIS. STAT. § 48.415(1)(a)2.
¶7 Furthermore, N.M.A.-S. did not demonstrate that she could maintain
sobriety: she missed several scheduled appointments for AODA assessments, and
was discharged from the program for lack of attendance and participation. She
attended supervised visits under the influence of Xanax and morphine. She also
refused to provide urine samples or take any test to determine whether she was
under the influence of drugs.
¶8 Additionally, N.M.A.-S. did not actively engage in the care of the
children, and refused to sign a consent form to allow for A.A.S. to participate in
speech therapy as recommended by her pediatrician. She also refused to allow the
case manager to come to her home and complete a safety assessment.
¶9 As a result, petitions for the Termination of Parental Rights (TPR) of
N.M.A.-S. with regard to A.A.S. and A.J.S. were filed in October 2017. In the
petitions, the State alleged three grounds for termination: (1) N.M.A.-S.’s
abandonment of the children, pursuant to WIS. STAT. § 48.415(1)(a)2.; (2) the
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children’s continuing need of protection or services, pursuant to § 48.415(2); and
(3) N.M.A.-S.’s failure to assume parental responsibility, pursuant to § 48.415(6).
¶10 A jury trial on these matters commenced on June 11, 2018. During
the voir dire of potential jurors, N.M.A.-S.’s trial counsel asked, “Is there anyone
that believes that someone who is struggling with an addiction currently is not fit
to parent their children?” Eleven potential jurors raised their hands to indicate
their agreement with this opinion.
¶11 Trial counsel then asked each of those jurors individually to provide
an explanation regarding their opinions. As relevant to this appeal, Juror 8 stated,
“I’ve just worked with students that have picked up on what their parents are
addicted [to] and are doing. And I just don’t think it’s right for your children to
have to go through that.” Counsel then asked Juror 8, “Do you think you’ll be
able to give [N.M.A.-S.] a fair shot given that we’re going to be talking about
addiction in this case?” There was no response from Juror 8 noted in the record; it
merely indicates that counsel went on to ask Juror 15 about his opinion.
¶12 After voir dire was completed, the trial court and the parties
discussed strikes for cause. Several potential jurors were struck, based on requests
by both N.M.A.-S.’s trial counsel and the State; some of those requests were
denied by the court. The parties then determined the jurors on which they wanted
to exercise their peremptory strikes. The record does not indicate any further
discussion regarding Juror 8.
¶13 A jury was impaneled that afternoon, which included Juror 8. After
a three-day trial, the jury returned a verdict that the State had proven the grounds
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set forth in the TPR petitions.5 A dispositional hearing was then held, where the
trial court ultimately found that N.M.A.-S.’s parental rights should be terminated.6
¶14 N.M.A.-S. filed a notice of appeal, but subsequently filed a motion
to remand the matters for a hearing on her motion for a new trial. In that motion,
N.M.A.-S. argued that her trial counsel was ineffective for failing to challenge
Juror 8 for cause or use a peremptory strike.7 A hearing on that motion was held
in September 2019,8 in which the postjudgment court heard testimony from
N.M.A.-S.’s trial counsel.
¶15 Trial counsel testified that her primary strategy in picking the jury
was “to gauge what people’s opinions were on AODA issues, since that was really
the reason the case came into the court system in the first place, and the reasons
that were preventing a safe return home” for the children. Counsel also stated that
she had exercised all of the allotted peremptory strikes, with substantial input from
N.M.A.-S. Counsel explained that they had not used the peremptory strikes
against Juror 8 because there were likely other jurors that she and N.M.A.-S.
5
At the time of trial, the State chose not to proceed with the abandonment claim.
6
A.S.’s parental rights for both children were also terminated at that time. He is not
involved in this appeal.
7
In her motion for a new trial, N.M.A.-S. also asserts that, in addition to challenging
Juror 8, her trial counsel should have challenged Juror 20. However, she does not raise this
challenge on appeal, presumably because Juror 20 was struck as the alternate and did not
participate in deliberations. Therefore, we do not discuss any issues with regard to Juror 20. See
State v. Ayala, 2011 WI App 6, ¶22, 331 Wis. 2d 171, 793 N.W.2d 511 (“An issue raised in the
trial court but not argued in a party’s appellate brief is deemed abandoned and will not be
considered.”).
8
N.M.A.-S. did not appear at this motion hearing; her postjudgment counsel was
unaware as to why she did not attend the hearing.
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“dislike[d]” more than Juror 8, and thus they had used the strikes against those
jurors instead.
¶16 Trial counsel further explained that when she had asked the jurors
whether they could give N.M.A.-S. a “fair shot,” she was referring to whether they
would be able to “judge the case fairly and impartially.” Although the record does
not reflect an answer to this inquiry from Juror 8, trial counsel asserted that she
would not have moved on to question the next juror if there had been no response
to the question by Juror 8. In other words, if Juror 8 had not given some type of
nonverbal response, or had “done something with [his or her] demeanor or body
language” to indicate bias against N.M.A.-S., trial counsel stated that she would
have further questioned Juror 8. Trial counsel further testified that she did not
remember “anybody not responding to a question.”
¶17 The postjudgment court denied N.M.A.-S.’s motion. In its decision,
it noted that while there may have been “some nonverbal queues that gave [trial
counsel] the belief or the position that Juror Number 8 could, in fact, be fair,”
there was no definitive indication of that in the record. The court deemed that to
be a deficiency. However, the court found that N.M.A.-S. was not prejudiced by
this deficiency, since N.M.A.-S. was “very active in the exercise of peremptory
challenges” and had conferred with trial counsel regarding the strikes. Therefore,
the court found that there was no prejudice for trial counsel’s failure to move to
strike for cause or to exercise a peremptory challenge with respect to Juror 8; thus,
her ineffective assistance claim failed. This appeal follows.
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DISCUSSION
¶18 “Wisconsin applies the two-part test described in Strickland [v.
Washington, 466 U.S. 668 (1984)], for evaluating claims of ineffective assistance
of counsel.” State v. Roberson, 2006 WI 80, ¶28, 292 Wis. 2d 280, 717 N.W.2d
111. To prove ineffective assistance of counsel, a defendant must show both that
his trial counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland, 466 U.S. at 687. With regard to the deficiency prong, a
defendant must demonstrate that specific acts or omissions of counsel “were
outside the wide range of professionally competent assistance.” Id. at 690.
However, trial counsel is “‘strongly presumed to have rendered’ adequate
assistance within the bounds of reasonable professional judgment.” State v.
Balliette, 2011 WI 79, ¶25, 336 Wis. 2d 358, 805 N.W.2d 334 (quoting
Strickland, 466 U.S. at 690).
¶19 For the prejudice prong, a defendant “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” State v. Love,
2005 WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62 (citations and internal
quotation marks omitted). Indeed, there must be a “substantial, not just
conceivable, likelihood of a different result.” State v. Starks, 2013 WI 69, ¶55,
349 Wis. 2d 274, 833 N.W.2d 146 (citation omitted). If a defendant fails to satisfy
one component of the analysis, a court need not address the other. Strickland, 466
U.S. at 697.
¶20 Our standard of review for ineffective assistance of counsel claims
presents “a mixed question of law and fact.” State v. Johnson, 153 Wis. 2d 121,
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127, 449 N.W.2d 845 (1990). Generally, the findings of fact made by the trial
court will not be overturned unless clearly erroneous. Id. However, in cases
where the postjudgment court did not preside over the trial, we review its findings
of fact de novo. See State v. Herfel, 49 Wis. 2d 513, 521, 182 N.W.2d 232 (1971).
Furthermore, “[t]he ultimate determination of whether counsel’s performance was
deficient and prejudicial to the defense are questions of law” which this court also
reviews independently. Johnson, 153 Wis. 2d at 128.
¶21 The issue of whether N.M.A.-S.’s trial counsel was ineffective for
failing to strike Juror 8 comes down to whether that juror demonstrated subjective
bias. “The United States and Wisconsin Constitutions guarantee a criminal
defendant the right to a trial by an impartial jury.” State v. Oswald, 2000 WI App
2, ¶16, 232 Wis. 2d 62, 606 N.W.2d 207. A juror who “has expressed or formed
any opinion or is aware of any bias or prejudice in the case” is deemed to be
subjectively biased, and should be removed from the panel. State v. Faucher, 227
Wis. 2d 700, 715-17, 596 N.W.2d 770 (1999) (citing WIS. STAT. § 805.08(1)).
However, “[p]rospective jurors are presumed impartial, and the challenger to that
presumption bears the burden of proving bias.” State v. Gesch, 167 Wis. 2d 660,
666, 482 N.W.2d 99 (1992) (citation omitted).
¶22 Our supreme court has explained that “subjective bias” is the type of
bias “that is revealed through the words and the demeanor of the prospective
juror.” Faucher, 227 Wis. 2d at 717. Indeed, “subjective bias refers to the bias
that is revealed by the prospective juror on voir dire: it refers to the prospective
juror’s state of mind.” Id. For example, a prospective juror is subjectively biased
“if the record reflects that the juror is not a reasonable person who is sincerely
willing to set aside any opinion or prior knowledge that the prospective juror
might have.” Oswald, 232 Wis. 2d 62, ¶19. However, a prospective juror “need
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not respond to voir dire questions with unequivocal declarations of impartiality.”
State v. Erickson, 227 Wis. 2d 758, 776, 596 N.W.2d 749 (1999). In fact, the
purpose of voir dire is “to explore a prospective juror’s fears, biases, and
predilections,” and the trial court should “fully expect a juror’s honest answers at
times to be less than unequivocal.” Id.¶23 Here, the issue with Juror 8 arose when N.M.A.-S.’s trial counsel
asked the jury pool whether they thought that someone struggling with addiction
was an unfit parent. Juror 8—along with ten other prospective jurors—raised their
hands indicating their agreement with that statement. Counsel individually
questioned those who had raised their hands about their opinions, with Juror 8
expressing concern about the parenting capabilities of people with addiction.
Counsel also followed up the questions to each of those jurors with a specific
question as to whether the juror could give N.M.A.-S. a “fair shot”; that is, be
impartial. There is no verbal response to this question from Juror 8 in the record.
Based on this exchange, N.M.A.-S. asserts that trial counsel was ineffective for
failing to challenge Juror 8.
¶24 After voir dire, there was no further discussion among the trial court
and the parties regarding Juror 8; N.M.A.-S. contends that trial counsel likely
forgot to raise a challenge for Juror 8. Indeed, the parties and the court discussed
the responses of several—but not all—of the other jurors who had raised their
hands. Those who had responded with clear indications of an inability to be
impartial were struck for cause. For example, Juror 6, who had a father who was
an addict, had expressed shock over A.A.S. ingesting an opiate and stated that she
could not be fair. Juror 14 had responded that addiction has “such a grasp on a
person” that it would “win out” in a choice between drugs and the child, and that
she could “[p]robably not” be fair. Juror 25 stated that she was “appalled” and
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“disgusted” and would not be able to fairly consider N.M.A.-S.’s position. Juror
28 indicated that he “already ha[d] a very negative view” of N.M.A.-S. All four
were struck for cause.
¶25 However, in addition to Juror 8’s response, the responses of three
other jurors who had raised their hands were not discussed. In particular, Juror 20,
who was also empaneled on the jury but later struck as an alternate, expressed
strong feelings about “tak[ing] care of yourself before taking care of your
children” and admitted to possibly being biased against N.M.A.-S. based on those
feelings. Additionally, in response to the inquiry about impartiality, Juror 20
stated “I can try.”
¶26 “[A] subjective inquiry will often not be susceptible to direct proof.”
Faucher, 227 Wis. 2d at 717-18. Thus, the determination of whether a juror is
subjectively biased “turns on his or her responses on voir dire and a [trial] court’s
assessment of the individual’s honesty and credibility, among other relevant
factors.” Id. at 718. In this case, the postjudgment court had not been in a
position to assess Juror 8’s demeanor, honesty, and credibility during voir dire,
since it did not preside over the jury trial; rather, for these purposes, it was
N.M.A.-S.’s trial counsel who was in a “superior position” to make those
assessments. See State v. Tobatto, 2016 WI App 28, ¶25, 368 Wis. 2d 300, 878
N.W.2d 701.
¶27 To that end, N.M.A.-S.’s trial counsel implicitly concluded that
Juror 8 had not displayed subjective bias. Given trial counsel’s testimony that she
would not have moved on to question the next juror if there had been no response
or some kind of negative signal from Juror 8, it is reasonable to conclude that
Juror 8 indicated affirmatively—albeit non-verbally—that he or she could be
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impartial. Furthermore, the record indicates that the parties’ discussion about
striking jurors was focused on those jurors who had given responses that
demonstrated a more definitive inability to be impartial. In sum, rather than
showing that trial counsel “forgot” about Juror 8, the record supports the
conclusion that based on Juror 8’s “honest answers,” counsel made a
determination about Juror 8’s ability to be impartial that was appropriately based
on her assessment of Juror 8’s demeanor, honesty, and credibility during voir dire.
See Erickson, 227 Wis. 2d at 776; Faucher, 227 Wis. 2d at 718.
¶28 With regard to trial counsel’s failure to use a peremptory strike on
Juror 8, counsel explained that, with significant input from N.M.A.-S., they had
exercised all of their allotted peremptory strikes on other jurors that they
“dislike[d]” more than Juror 8. “[A] deliberate choice of strategy, even if it back
fires, amounts to a waiver binding upon the defendant and this court.” State v.
McDonald, 50 Wis. 2d 534, 538, 184 N.W.2d 886 (1971). N.M.A.-S. effectively
waived this argument by participating in the choice of which jurors upon which to
exercise peremptory strikes.
¶29 Furthermore, this argument also fails on the merits. “Counsel’s
decisions in choosing a trial strategy are to be given great deference,” and will
generally be sustained “if reasonable, given the strong presumption of effective
assistance and deference to strategic decisions.” Balliette, 336 Wis. 2d 358, ¶26.
We conclude that trial counsel’s strategy with regard to exercising peremptory
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strikes was reasonable. For all of these reasons, we disagree with the postjudgment
court that trial counsel’s actions with regard to Juror 8 were deficient.9
¶30 Moreover, even if trial counsel’s actions could be deemed to be
deficient, we agree with the postjudgment court that N.M.A.-S. failed to
demonstrate that she was prejudiced. Given that demonstrating prejudice requires
that there is a “substantial, not just conceivable, likelihood of a different result,”
see Starks, 349 Wis. 2d 274, ¶55 (citation omitted), a simple means of assessing
the result is to review the verdict reached by the jury.
¶31 Because this is a civil case, the verdict is sufficient if ten or more
jurors are in agreement. See WIS JI—CIVIL 180. The special verdict form in this
case indicates that only one juror dissented to one of the questions: whether
DMCPS had made a “reasonable effort” to provide services to N.M.A.-S., as
required by the court. Thus, even if a different prospective juror had been chosen
instead of Juror 8, and that juror had also dissented, the verdict against N.M.A.-S.
would still stand. As a result, there is not a substantial likelihood that there would
have been a different result in this case.
¶32 Therefore, N.M.A.-S.’s ineffective assistance of counsel claim fails.
Accordingly, we affirm the orders terminating N.M.A.-S.’s parental rights to both
A.A.S. and A.J.S.
By the Court.—Orders affirmed.
9
“[W]e will affirm the trial court if the court reached the correct result, even if we
employ different reasoning[.]” State v. Thames, 2005 WI App 101, ¶10, 281 Wis. 2d 772, 700
N.W.2d 285.
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This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
14