Kenosha County DC&FS v. M.A.M., 2023AP1643-45, 4/24/24, District II (one-judge decision; ineligible for publication); case activity
In a case demonstrating the difficult hurdles litigants must clear in order to prove deficient performance, COA affirms an underlying order terminating “Mary’s” parental rights.
In this TPR action involving multiple children, the County alleged only one ground–continuing CHIPS under § 48.425(2). (¶4). During pretrial discovery, the County served 280 requests for admission on Mary. (¶5). With counsel’s assistance, Mary admitted 259, including specific admissions fulfilling each element the County needed to prove in order to establish grounds. (Id.). As a result, the County moved for summary judgment. (¶6). Mary’s attorney informed the court she was not objecting to that request and the court granted the motion. (Id.). At the dispositional hearing, Mary’s attorney argued that the court should terminate the rights of the father, but not Mary’s. (Id.). The court terminated both parents’ rights. (Id.).
Mary filed a postdispo motion alleging IAC and renews those claims on appeal. She argues that her lawyer “was deficient in admitting several requests for admission that ‘had questions of fact and were dispositive of the entire case'” and for not opposing the County’s request for summary judgment. (¶17, ¶21). On appeal, however, she runs into a number of challenges, including COA’s general reluctance to second-guess the strategic judgments of trial counsel and its duty to instead “defer” to such choices. (¶15).
These principles of deference doom her appeal, given that trial counsel was the only witness during postdisposition proceedings and offered uncontradicted testimony (which the circuit court found credible) that Mary did not want to have a trial and that the overall plan was essentially to not contest grounds but, instead, to attack the other parent at disposition and argue that his rights, not Mary’s, should be terminated. (¶8). Likewise, counsel testified that Mary (who had learning impairments) was the ultimate arbiter of how to respond to the admissions and that he deferred to her answers. (¶11). “Having agreed to pursue a strategy of nonopposition during the grounds phase, Mary cannot now claim that [trial counsel] rendered deficient performance by acting in furtherance of that strategy.” (¶20). All Mary can offer on appeal are speculative assertions to the contrary and these are categorically incapable of overriding the credible testimony of counsel during postdisposition proceedings. (¶23).
