N.C. v. R.G., 2024AP996, District II, 11/20/24 (one-judge decision; ineligible for publication); case activity
In a TPR appeal with a very unusual posture, COA rejects the petitioner’s appeal given her failure to abide by the rules of appellate procedure.
N.C. filed a pro se petition to terminate R.G.’s parental rights with respect to their child, Elle. (¶2). The court appointed counsel for N.C. and the matter was tried to a jury, which rejected her arguments. (¶3). Following the circuit court’s dismissal of the petition given the adverse jury verdict, N.C. filed a notice of appeal. (¶4). However, she did not file a motion for remand to address her claim of ineffective assistance of counsel as required under § 809.107(6)(am). (¶4).
This is a fatal error, as “An appellant cannot raise an ineffective assistance of counsel claim for the first time on appeal.” (¶6). COA holds that, under Wisconsin law, the circuit court must hold a Machner hearing as a prerequisite to granting relief due to alleged ineffectiveness. (Id.). Because N.C.’s claim necessarily requires factfinding, she was therefore required to file a motion for remand; as she did not do so, COA holds it is powerless to grant the requested relief and therefore affirms. (¶8).
Notably, there was another, more interesting, issue presented in this case–does a TPR petitioner have a right to the effective assistance of counsel? However, given that the procedural defect is fatal, COA holds there is no need to delve into that issue in this appeal.
