COA holds parent not prejudiced by TPR attorney on ordered services

State v. S.L.W., 2021AP1736 & 1737, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity

S.LW. appeals the termination of parental rights to her children. She argues her attorney failed to inform the jury of court-ordered services the Milwaukee County child-services agency didn’t provide. The court of appeals holds that if counsel performed deficiently in this regard, it didn’t affect the jury trial because the county did make a reasonable effort to provide the services, and because there was an independent ground for termination. (UPDATE: the original post said S.L.W. didn’t challenge this second ground on appeal; the comment below informs us that she did.)

The state alleged two grounds for TPR: continuing CHIPS and failure to assume parental responsibility. It moved for summary judgment as to the continuing CHIPS, and the court granted it as to all the elements except the county’s provision of services: that was a jury question at the factfinding hearing, along with the failure-to-assume ground.

S.L.W. is deaf. She argues that the county failed to make a reasonable effort to provide services related to her deafness–including interpreters and internet access to permit video communication–that would have allowed her to meet the conditions for return. See Wis. Stat. § 48.415(2)(a)2.b. She further argues her trial counsel was ineffective for not presenting to the jury the CHIPS dispositional order containing these provisions, but the court of appeals disagrees:

We agree with the State and GAL, that even if trial counsel performed deficiently, S.L.W. has failed to establish prejudice with respect to the continuing CHIPS ground. There is no reasonable probability that the outcome of S.L.W.’s trial would have been different…. The record contains overwhelming evidence that DMCPS did make a reasonable effort to facilitate and improve communications with S.L.W.

During the fact finding hearing, there was testimony elicited that DMCPS paid every month for internet for S.L.W. so that she could have access to a video relay interpretation service; that DMCPS set up meetings and visitations, but that S.L.W. was not always cooperative in maintaining contact; that when S.L.W. resided out of state that DMCPS paid for her transportation to Milwaukee so that she could have visits with her children; and that DMCPS communicated with her directly regarding her case. In particular, J.E. testified that when she was the supervisor on the case, DMCPS used a phone relay system, exchanged text messages, and used live interpreters when in person. Likewise, K.K. testified that when she was on the case, she attended in person visitations with S.L.W., the children, and at least one interpreter.

Moreover, even if trial counsel was ineffective with respect to the continuing CHIPS ground, the jury found that S.L.W. had failed to assume parental responsibility—which is an independent ground for termination….

Here, there were gaps of time where S.L.W. had no visitation with her children. The gaps included August 2014 to August 2015, June 2018 to fall 2018, and April 2021 to May 2021. In addition, testimony was elicited that S.L.W. was not actively involved in the children’s daily supervision, education, or medical care. Thus, the jury would have found grounds to terminate S.L.W.’s parental rights regardless of whether the additional language from the CHIPS dispositional order was brought to the jury’s attention.

(¶¶24-26).