Kenosha County DC&FS v. K.E.H., 2024AP1101, 2/26/25, District II (1-judge decision, ineligible for publication); case activity
In a dense and fact-dependent appeal stemming from a TPR jury trial, COA applies strict legal standards in order to reject the appellant’s multiple claims of ineffectiveness.
Trial Counsel’s Alleged Lack of Preparation
“Kara’s” primary deficient performance argument is that her trial attorney failed to adequately prepare for this TPR trial. (¶22). She claims that the two meetings trial counsel had with her client were categorically insufficient and that counsel’s review of discovery was inadequate. (Id.). She also points to a misstatement during closing arguments as proof of her lawyer’s lack of preparation. (Id.).
The issue is complicated because while trial counsel was defending her client against TPR allegations involving one child, Josh, her client’s other child, Caleb, had also been subject to intervention from child welfare authorities. (¶3). The case involving Josh was therefore in many ways factually intertwined with the case involving Caleb. (Id.). Kara’s argument is that her lawyer did not adequately investigate voluminous material pertaining to Caleb. (¶24). To COA, “This raises the interesting question as to how much an attorney in a TPR case should investigate cases of related children.” (Id.). However, after reviewing the record, COA is satisfied that trial counsel adequately prepared with respect to this dispositive issue at this trial–“whether the County has proven that this parent is unfit to care for this child.” (Id.). Although it agrees there were aspects of trial counsel’s representation that were less-than-ideal, that is not the legal standard. (¶25). Trial counsel’s preparation was adequate to meet the low bar imposed by Strickland and its progeny. (Id.).
Failure to Object to Statements about Value of Permanence
Here, Kara argues that the trial contained repeated instances where the jury was impermissibly asked to consider Josh’s best interests in contravention of Door County Department of Health & Family Services v. Scott S. (¶26). She asserts that her lawyer was deficient for not objecting to these statements. (Id.). Because these comments were made during opening arguments, however, COA observes that the jury was properly instructed that these arguments were not evidence and that the law presumes jurors follow such an instruction. (¶30). Moreover, the phrase “best interest” was never actually mentioned, trial counsel did object to an instance of potentially improper closing argument, and counsel testified that she had a strategic reason for not making further objections. (¶¶31-32).
Opening of the Door to Inadmissible Testimony
The circuit court made evidentiary rulings which prohibited the State from discussing “inflammatory things” regarding Kara’s other child, Caleb, during its case-in-chief. (¶36). During the trial, however, trial counsel asked questions which the circuit court found to have “opened the door” to this topic. (¶37). COA’s discussion on this point is a little hard to parse, but it appears to hold that the controverted testimony may not have been inadmissible and, in any case, all parties–and the court–were trying to walk an evidentiary tightrope in this factually unique case. Under these circumstances, it declines to find that counsel’s performance fell below a standard of objective reasonableness. (¶41).
Prejudice
COA believes that Kara’s argument on this point “is simply an attempt to persuade this court to invade the province of the jury and find facts regarding the grounds for termination.” (¶43). COA relies on the overall record evidence–including evidence that Kara may have been “nodding off” from drug usage during the trial–to conclude there was no constitutionally cognizable prejudice and affirms. (¶46).
