Kenosha County DC&FS v. A.G.O., 2023AP1305, 1307 & 1308, 5/8/24, District II (one-judge decision; ineligible for publication); case activity
In yet another TPR case involving allegations of ineffective assistance, COA affirms based on hard-to-overcome legal standards.
“Adam” appeals TPR judgments involving three of his children. (¶1). He raises two issues:
Summary Judgment
In the run-up to trial, the County served Adam with requests for admission. (¶7). Although counsel originally sought an extension of time to allow her to work with Adam, who had a hearing disability that impeded the attorney-client relationship, the requests for admission were never answered. (¶9). The court deemed the requests admitted and granted the County’s motion for summary judgment. (¶11).
On appeal, Adam acknowledges that, pursuant to the rules of civil procedure, his failure to respond to the County’s requests “conclusively established the admissions.” (¶20). Yet, he argues the court was still required to take testimony in order to support its unfitness finding by clear and convincing evidence. (Id.). The County, for its part, concedes that the circuit court erred by not taking testimony but argues that any such error was harmless. (¶21).
COA, however, refuses to accept the County’s concession, as there is no legal requirement that a court take testimony before finding a parent unfit in the summary judgment context. (¶24). The County’s affidavits, in conjunction with Adam’s imputed admissions, sufficiently established the requisite elements “beyond genuine dispute.” (¶25).
Ineffective Assistance of Counsel
Adam also argues that his lawyer was ineffective for not answering the requests for admission. (¶29). In her postdisposition testimony, counsel was apparently surprised to learn that she in fact failed to prepare and file answers as that was her usual practice. (¶15). She also conceded that she should have denied several of the County’s requests. (¶17).
The issue for Adam, however, is prejudice, or “a reasonable probability that, absent this failure, the circuit court would not have found grounds to terminate his parental rights.” (¶33). While Adam initially tries to argue that he should not have to prove prejudice under these circumstances, COA disagrees. (¶32). With respect to the abandonment ground, “Adam does not argue that the County would not have been able to establish either element.” (¶34). Instead, he argues that he had a good cause defense available. (Id.). Assessing the overall evidence, however, COA finds the evidence for that defense lacking and affirms. (¶38).
