Dane County Department of Human Services v. J.K., 2023AP1946-47, 3/28/24, District IV (one-judge decision; ineligible for publication); case activity
In a TPR appeal presenting multiple issues, COA rejects all of J.K.’s arguments and affirms.
Ineffective Assistance of Counsel
In this case, the petitioner moved for summary judgment with respect to grounds, “arguing that there was no dispute that grounds for termination existed based on abandonment as defined in Wis. Stat. § 48.415(1)(a)2.” (¶6). Specifically, the Department alleged there was no dispute that J.K. had failed to communicate with her two children within a specified six-month window. (¶7). J.K., however, asserted a good-cause defense, citing (among other factual considerations) a severe mental illness which allegedly precluded her from contacting the children. (Id.). Although her attorney filed affidavits attesting to what counsel’s review of discovery demonstrated, counsel did not file any such documents with the court nor did they submit an affidavit from J.K. (¶8). The circuit court granted the summary judgment motion and, in doing so, faulted counsel for failing to file affidavits based on personal knowledge as required under § 802.08(3). (¶9).
On appeal, J.K. therefore argues that counsel was deficient for not having her execute an affidavit which would have defeated the Department’s summary judgment motion. (¶18). Although J.K. has submitted argument about what that affidavit would say, COA faults her for not actually submitting an affidavit or otherwise testifying in support of her factual claims at a postdisposition hearing. (Id.). As the averments of counsel are not evidence–and trial counsel’s testimony at the postdisposition hearing is in tension with her claims on appeal–COA rejects this line of argument. (Id.).
J.K. also argues that counsel was ineffective for not filing case notes along with the response to the summary judgment motion. (¶19). COA rejects the argument on prejudice grounds. (Id.). It also faults J.K. for merely submitting 75 pages of discovery and not specifically citing to specific portions of the records that would support her argument. (Id.).
Summary Judgment
Although J.K. argues that the circuit court erroneously granted the Department’s summary judgment motion, COA is unsympathetic. While J.K. claims that a sketchily detailed exchange of messages with a foster parent would constitute “communication” with the children, COA holds that J.K. has failed to make a sufficient argument on appeal that there was disputed issue of fact and affirms. (¶29).
Erroneous Exercise of Discretion
Finally, J.K. argues that while the circuit court weighed the required factors, it reached an “erroneous result.” (¶34). The argument goes nowhere, however, given the deferential standard of review and the record which clearly supports the court’s exercise of discretion. (Id.).
