COA rejects ineffectiveness arguments in TPR and affirms
Green County v. K.M.S., 2025AP199, 6/18/26, District IV (ineligible for publication); case activity
Applying an exceptionally deferential review to K.M.S.’s ineffectiveness claims, COA affirms in the face of a somewhat confusing appellate record.
Ineffective Assistance of Counsel
K.M.S.’s IAC argument centers on the grounds phase of this TPR proceeding and revolves around a somewhat vague pretrial ruling from the circuit court. While this case involves a minor child with the initials G.G.W.-H., KMS also had her parental rights previously terminated with respect to another minor child in Minnesota. (¶13). Her lawyer filed a motion in limine, “requesting a ruling that no evidence be introduced regarding either TPR or CHIPS proceedings involving any other child of K.M.S.’s.” (¶12). The motion was “granted in large part” at a pretrial conference but the court also informed the parties it would not “declare a mistrial if there is something minimal that comes in about the fact that there is another case.” (Id.).
The court further refined its ruling on the first day of trial, clarifying some testimony about the Minnesota situation was relevant and allowing that there may be “tangential references,” but largely focused on the fact that it did not want the jury to know that “something adverse happened with that [other] child, and I would include a CHIPS proceeding along those lines.” (¶13). During her testimony, K.M.S.’s lawyer asked her about placing this child in foster care in Minnesota. (¶14). The County argued this opened the door to questioning which revealed that her other child had been placed in a foster home in Minnesota. (Id.). The County asked additional questions that tended to reveal the existence of a child welfare case involving the other child. (¶15).
On appeal, K.M.S. argues that the lawyer was ineffective for “opening the door” to this testimony. COA disagrees, however, with her framing of the circuit court’s ruling–which it labels as “nuanced”–and ultimately concludes it is “not clear” that counsel asked a question that actually opened the door to this evidence. (¶20). It is also not clear, to COA, whether the later questions from the County violated the pretrial ruling or not. (Id.). Setting these concerns aside, COA assumes that counsel did in fact “open the door.” (¶21). At the postconviction hearing, however, counsel gave a strategic reason for her actions. (¶22). The circuit court made a finding that counsel “had the Court’s impressions in mind” and “knew what she was doing.” (¶23). Labeling this a “finding of fact” COA asserts that it must defer to the circuit court’s finding that a strategic reason existed and asserts that K.M.S. must prove counsel’s decision was “irrational or based on caprice.” (Id.). And, while K.M.S. makes arguments on appeal as to why this was unreasonable, COA labels this an invitation to use “hindsight” to resolve the case and rejects her arguments. (¶24).
COA also disagrees that counsel performed unreasonably in response to further questioning from the County on this topic, as the evidence shows that counsel did fight back against the evidence by making objections and, for the one objection she did not make, gave a reasonable explanation at the postconviction hearing. (¶26). It rejects a number of closely-related arguments applying the same level of deference to counsel’s conduct.
Sufficiency of the Evidence
K.M.S.’s argument fails because she does not acknowledge the proper standard of review. (¶32). Overall, COA disagrees with her recitation of the evidence and finds there was sufficient, credible, evidence to support the jury’s verdict. (¶34).
Discretionary Termination Decision
K.M.S.’s argument fares about the same as her sufficiency claim, as she fails to argue that the court did not consider any of the mandatory factors. (¶36). Although she identifies evidence that she believes undermines the court’s finding, COA disagrees, applies the usual deferential standard, and affirms.
The last two issues are disposed of in relatively ho-hum fashion by COA, but the IAC issue might merit further attention in a PFR. Here, COA invokes an exceptionally deferential standard of review, choosing to defer to relatively generic findings from the circuit court and then requiring a high burden of proof from K.M.S. on appeal. Obviously, courts in Wisconsin have been unfriendly to IAC claims. In addition to Breitzman, cited in this decision, SCOW’s more recent decision in Mull seems to signify a standard of “super-deference” so long as a lawyer can say something a postconviction evidentiary hearing. However, at least some SCOTUS cases appear to support pushback on this ultra-deferential approach, including the oft-invoked Wiggins case, which seems to reject a standard of review that boils down to “was the lawyer conscious enough of reality to utter words in defense of their conduct in a hearing?.”
And, of course, the case is also a great reminder for trial lawyers that obtaining clarity and precision from the circuit court with respect to a pretrial ruling is essential. In a case where even COA has trouble understanding what was and was not permitted, perhaps further clarification during trial would have been the best route for all parties involved.