Columbia Cnty. Dep't of Health & Human Servs. v. S.A.J. (In re K.M.J.)

1

IN RE THE TERMINATION OF PARENTAL RIGHTS TO K.M.J., A PERSON UNDER THE AGE OF 18:

COLUMBIA COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PETITIONER-RESPONDENT, v. S.A.J., RESPONDENT-APPELLANT.

No. 2022AP2085

Court of Appeals of Wisconsin, District IV

February 15, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

Appeal from an order of the circuit court for Columbia County: Cir Ct. No. 2020TP6 W. Andrew Voigt, Judge. Affirmed.

TAYLOR, J. ^[1]

¶1 S.A.J, appeals an order terminating her parental rights to her daughter K.M.J. S.A.J, pled no contest at the grounds phase of the involuntary termination of parental rights proceedings. The circuit court subsequently determined at the dispositional phase that termination was in K.M.J.'s best interests. S.A.J, argues that she should be permitted to withdraw her no-contest plea because (1) the court failed to make an adequate inquiry into her request for a new attorney and (2) her trial counsel was ineffective, primarily due to trial counsel's alleged failure to obtain and review relevant discovery and adequately prepare for trial. For the reasons below, I affirm.

BACKGROUND

¶2 In 2018, Columbia County Department of Health and Human Services (the "Department") filed a child in need of protection ("CHIPS") petition on behalf of S.A.J.'s fetus based on alleged drug use by S.A.J. See WIS. STAT. § 48.133. In June 2018, S.A.J gave birth to her daughter K.M.J. According to the Department's allegations, S.A.J, and K.M.J, both tested positive for cocaine after K.M.J.'s birth. K.M.J.'s father, J.K., was in treatment for opioid addiction at that time and was unavailable to parent. Upon release from the hospital, K.M.J, was placed in a foster home.

¶3 In November 2018, a CHIPS dispositional order was entered maintaining K.M.J.'s foster placement and setting conditions that S.A.J, and J.K. were required to meet in order to obtain placement. In August 2019, S.A.J.'s probation was revoked and she began serving a prison term ¶4 In July 2020, the Department filed a petition seeking termination of S.A.J.'s and J.K.'s parental rights to K.M.J. Involuntary termination of parental rights ("TPR") cases follow a "two-part statutory procedure." Steven V. v. Kelley H., 2004 WI 47 ¶24, 271 Wis.2d 1, 678 N.W.2d 856. "In the first, or 'grounds' phase," the petitioner must prove that "one or more of the statutorily enumerated grounds for termination of parental rights exist." Id., WIS. STAT. § 48.31(1). If the petitioner proves that grounds exist, "the court shall find the parent unfit," WIS. Stat. § 48.424(4), and proceed to the second, or "dispositional" phase, in which the court decides whether it is in the best interests of the child that the parent's rights be terminated, Steven V., 271 Wis.2d 1, ¶27; WIS. STAT. § 48.426(2). As grounds for termination of S.A.J.'s parental rights, the Department alleged that K.M.J, had a continuing need of protection or services under Wis. STAT. § 48.415(2)(a) and that S.A.J, failed to assume parental responsibility under § 48.415(6).

¶5 In August 2020, the circuit court appointed counsel for S.A.J, in the TPR proceedings. See WIS. STAT. § 48.23(2) (setting forth a statutory right to counsel for parents in TPR proceedings). Proceedings were delayed for reasons including complications from the COVID-19 pandemic and difficulties obtaining a state public defender to represent J.K. In May 2021, the court scheduled a jury trial to begin on November 16, 2021 regarding whether grounds for termination existed.

¶6 On October 5, 2021, S.A.J.-who at that time was residing in a treatment facility-filed a letter pro se with the circuit court requesting that her appointed counsel be replaced. In this letter, S.A.J, represented that her trial counsel told her she "would lose [her] case due to [her] struggle[s] with substance abuse," that trial counsel is "not on [her] side," and that trial counsel was often unresponsive to phone calls.

¶7 The circuit court addressed S.A.J.'s request at a hearing on October 21, 2021. The court asked S.A.J, whether she still had the same concerns, and S.A.J, confirmed that she did. S.A.J, also said that her trial counsel had told her on a phone call that she is "not here to represent me," which the court found not credible. The court expressed concerns about appointing new counsel, saying that it had "no reason to believe" that S.A.J.'s trial counsel was not competent, and that granting the request would significantly delay the proceedings, including the grounds trial, and be contrary to K.M.J, 's interest in permanency. As a result, the court said that it was "seriously considering ... simply denying the request."

¶8 S.A.J, then spoke off the record and privately with her trial counsel. After proceedings resumed, trial counsel said that S.A.J, was now "more accepting of me representing her." The circuit court asked S.A.J, if there was anything "particularly inaccurate" about trial counsel's representation, and S.A.J, said, "No. I guess I'm good, whatever." The court said that "it appears at least for the moment we have resolved the representation issues."

¶9 On November 8, 2021, S.A.J, moved for a continuance of the grounds trial because she was currently in a substance abuse treatment program and believed the trial would disrupt her treatment progress. The next day, the court held a hearing on S.A.J.'s continuance request. S.A.J.'s trial counsel appeared on S.A.J.'s behalf and represented that S.A.J, was not at that time "emotionally prepared for the trial." The court denied S.A.J.'s request.

¶10 On November 16, 2021, which was scheduled to be the first day of trial, S.A.J, pled no contest to one of two alleged grounds for termination, that K.M.J, was in continuing need of protection or services under WIS. STAT. § 48.415(2)(a). During the plea colloquy, S.A.J, testified that she was satisfied with trial counsel's representation, and that her plea was part of a "negotiated agreement" to delay the ensuing dispositional hearing until after S.A.J, finished her treatment program so she could be "better equipped" for that hearing. Based on S.A.J.'s plea, the circuit court found S.A.J, to be unfit, and per S.A.J.'s request, found good cause to continue the dispositional hearing beyond the 45-day statutory deadline.^[2]

¶11 The circuit court held the dispositional hearing in May 2022. At the hearing, the court determined that termination was in K.M.J, 's best interests and entered an order terminating S.A.J.'s parental rights.^[3]

¶12 In January 2023, S.A.J, moved for postdisposition relief, seeking to withdraw her plea of no contest to grounds for termination. S.A.J, argued that she should be permitted to withdraw her plea because (1) the circuit court failed to conduct an adequate inquiry into S.A.J.'s request for new counsel, and (2) S.A.J.'s trial counsel was ineffective because trial counsel failed to adequately prepare for the grounds trial, leading S.A.J, to plead no contest.

¶13 The circuit court held an evidentiary hearing on S.A.J.'s postdisposition motion, during which S.A.J, and S.A.J.'s trial counsel testified. S.A.J, testified that she asked for new trial counsel because trial counsel was "labeling" rather than "defending" her. S.A.J, also testified that she pled no contest because trial counsel told her that if she "stipulated to grounds," she would get additional visits with her daughter.

¶14 Trial counsel testified that she had handled "hundreds" of TPR cases, and it was not unusual for her clients in those cases to become angry and frustrated when she explained the possible outcomes of the TPR process. Trial counsel believed that S.A.J, "didn't really have a strong defense" to present at the grounds trial "other than she has a right to parent," but believed that S.A.J, had better odds at prevailing at the disposition hearing in an argument that termination was not in K.M.J, 's best interest.

¶15 In preparing for the grounds trial, trial counsel obtained via discovery case notes kept by the Department's social workers, up through January 2020. Following the parties, I refer to these notes as "eWiSACWIS" notes, an acronym denoting the "electronic Wisconsin Statewide Automated Child Welfare Information System," where child welfare workers maintain case information. See eWiSACWIS Web-Based Modules, UNIV. OF WISCONSIN-MADISON, https://wcwpds.wisc.edu/web-based-courses/ewisacwis-web-based-modules (last visited February 9, 2024). Trial counsel testified that eWiSACWIS notes have limited value because much of the information in them is cumulative or irrelevant. According to trial counsel, she did not seek eWiSACWIS notes after January 2020 because notes after the filing of the TPR petition would not have been relevant. However, as noted above, the TPR petition was actually filed months later, in July 2020.

¶16 In post-hearing briefing, S.A.J, argued that her trial counsel was deficient for, among other reasons, failing to obtain and review eWiSACWIS notes. S.A.J, submitted to the circuit court the post-January 2020 eWiSACWIS notes that trial counsel did not obtain, arguing that these notes show "areas of weakness" in the Department's case and could have supported defenses against the alleged grounds for termination.

¶17 The circuit court denied S.A.J.'s postdisposition motion. As to S.A.J.'s request for new counsel, the court determined that S.A.J, had agreed to withdraw that request or at least postpone a ruling. As to S.A.J.'s ineffective assistance of counsel claim, the circuit court said that trial counsel's failure to obtain the eWiSACWIS notes "might be" deficient, but S.A.J, had not shown any connection between trial counsel's allegedly deficient performance and S.A.J.'s ...