On Point: B. Constitutional rights

State v. R.A.M., 2023AP441, 6/6/23, District 1 (one-judge decision; ineligible for publication); petition for review granted 9/26/23; affirmed 6/25/24 case activity

R.A.M. was defaulted on grounds after she missed a single hearing. While the “hearing” was the fourth day of her TPR court trial, she had appeared at every prior hearing, including the first three days of trial.  As all too commonly happens, the circuit court determined that R.A.M.’s single non-appearance was “egregious and in bad faith and without justification” without ever hearing from her, and held that she had waived her right to counsel under Wis. Stat. § 48.23(2)(b)3. The court of appeals notes the paucity of grounds for this decision in a footnote, but as R.A.M. doesn’t challenge the finding of egregiousness, the opinion doesn’t otherwise address it. It does address what came next: rather than waiting the two days the same statute requires to hold a dispositional hearing after a counsel waiver, the court held the hearing on the same day and terminated R.A.M.’s rights.

Columbia County DHS v. K.D.K., 2022AP1835, 5/25/23, District 4 (1-judge opinion, ineligible for publication); case activity

K.D.K. challenged an order terminating his parental rights to C.A.K. on 3 grounds: (1) the judge was not properly assigned to preside over his case; (2) the circuit court refused to give a special verdict question asking whether it had been impossible for K.D.K. to meet the conditions for return set forth in the CHIPS dispositional; and (3) trial counsel was ineffective in several respects. The court of appeals rejected all claims.

Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity

Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1).

Kenosha County v. A.C.S., 2022AP1821-1825, 2/15/23, District 2 (one judge decision; ineligible for publication); case activity

Here’s a fact pattern one hopes doesn’t come up too often. The county sought the termination of “Anna’s” parental rights to five children. It then moved for summary judgment on the grounds that she’d been convicted of a serious felony related to the death of another child. A hearing was set, but Anna’s counsel informed the court she’d be in trial in a homicide case. Expecting an adjournment–which both trial counsel and the court of appeals note is “common practice” in such a situation–the attorney told Anna the hearing would be put off. Counsel’s homicide trial then unexpectedly ended early, though she still had work to do to wrap it up. The TPR court apparently heard through the grapevine that the homicide trial was over. Without any successful contact–or much apparent effort to contact–Anna or her lawyer, the court held the scheduled hearing ex parte and, at the county’s request, granted summary judgment. Later, over Anna and her counsel’s protestations, the court terminated her rights.

State v. O.F., 2022AP1703, District 1, 01/18/2023 (one-judge decision; ineligible for publication); case activity

Ultimately, the issue addressed by the court of appeals is whether O.F. received ineffective assistance of counsel where trial counsel was alleged to have “violated his duty of confidentiality and loyalty” to his client. O.F.’s claims were based on multiple statements made by his trial counsel that arguably disclosed confidential information to the court and painted O.F. in a bad light. The court rejects O.F.’s claim primarily because he failed to establish “any prejudice” and also rejects O.F.’s assertions that his IAC claim was structural and thus did not require a post-disposition motion or a Machner evidentiary hearing. (Opinion, ¶¶22-25).

State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity

C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.

State v. Q.M., 2022AP1245, District 1, 10/4/22 (one-judge decision; ineligible for publication); case activity

Q.M. challenges the termination of her parental rights to J.W., arguing the circuit court erred in depriving her of the right to present evidence at the disposition hearing. The court of appeals rejects the challenge.

M.K.S. v. R.J.F., 2021AP1839, 8/16/22, District 1 (no recommended for publication); case activity

Here is a result we don’t often see: a successful ineffective assistance of counsel claim in a TPR case. A jury found grounds to terminate “Richard’s” parental rights. Allegedly, he had failed to assume parental responsibility for his daughter, “Morgan.” On appeal, he argued that his trial counsel failed to introduce evidence to explain his lack of contact with Morgan and that he was prevented from establishing a relationship with her. The court of appeals agreed that counsel was ineffective.

State v. T.M., 2021AP1729, 8/16/22, District 1 (1-judge opinion, ineligible for publication); case activity

“Taylor” presented three challenges to the termination of her parental rights to her son: (1) erroneous admission of a psychological examination; (2) ineffective assistance of trial counsel for failure to object to a flawed jury instruction; and (3) insufficient evidence. The court of appeals rejected all of them.

State v. S.S.M., 2022AP524 & 2022AP525, District 1, 8/2/22 (one-judge decision; ineligible for publication); case activity

Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as defined in § 48.028(4)(e)2., to prevent the breakup of the family as well as the unsuccess of those efforts. S.S.M., whose children are not subject to the ICWA, argues that the statute’s failure to require proof of active efforts in all TPR cases violates the right to equal protection the statute because it gives Indian parents greater protection from having their parental rights involuntarily terminated than it does non-Indian parents. The court of appeals rejects the claim.