Kenosha Cnty. Div. of Children & Family Servs. v. M.A.M. (In re J.G.O.)

1

In re the termination of parental rights to J.G.O., a person under the age of 18:

Kenosha County Division of Children and Family Services, Petitioner-Respondent, v. M.A.M., Respondent-Appellant.

In re the termination of parental rights to M.G.O., a person under the age of 18:

Kenosha County Division of Children and Family Petitioner-Respondent, v. M.A.M., Respondent-Appellant.

In re the termination of parental rights to Z.G.O., a person under the age of 18:

Kenosha County Division of Children and Family Services, Petitioner-Respondent, v. M.A.M., Respondent-Appellant.

Nos. 2023AP1643, 2023AP1644, 2023AP1645

Court of Appeals of Wisconsin, District II

April 24, 2024

This opinion will not be published.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

APPEALS from orders of the circuit court for Kenosha County Cir. Ct. Nos. 2022TP4 2022TP5 2022TP6 CHAD G. KERKMAN, Judge.

NEUBAUER, J. ^[1]

¶1 M.A.M., referred to herein by the pseudonym Mary, appeals from orders terminating her parental rights to three of her children J.G.O., M.G.O., and Z.G.O., referred to herein by the pseudonyms Jamie, Michael, and Zachary, and from orders denying her motions for postdisposition relief. Mary argues that her trial counsel provided ineffective assistance by admitting certain requests for admission and by failing to oppose a summary judgment motion filed by the Kenosha County Division of Children and Family Services (the County). She argues that these errors prejudiced her because they relieved the County of its burden to prove her unfitness by clear and convincing evidence. The circuit court disagreed, concluding that her trial counsel's conduct was consistent with a strategy agreed upon by Mary and her counsel not to oppose the grounds asserted by the County and instead to argue that termination was not in her children's best interests. For the reasons set forth below, this court concludes that Mary has not established the first prong of an ineffective assistance claim, deficient performance. In light of this conclusion, this court affirms the orders terminating her parental rights.

BACKGROUND

I. Termination Proceedings

¶2 Termination of parental rights proceedings involve two phases: the grounds phase and the dispositional phase. See Sheboygan Cnty. Dep't of Health & Hum. Servs. v. Julie A.B., 2002 WI 95, ¶¶24-28, 255 Wis.2d 170, 648 N.W.2d 402. In the grounds phase, the finder of fact must determine whether the government establishes the ground or grounds it pleaded "for involuntary termination under WIS. STAT. § 48.415." Tammy W-G. v. Jacob T., 2011 WI 30, ¶18, 333 Wis.2d 273, 797 N.W.2d 854. If the factfinder determines that the government has established grounds to terminate under § 48.415, "the court shall find the parent unfit." WIS. STAT. § 48.424(4). The proceeding then enters the second, dispositional phase, during which "the court is called upon to decide whether it is in the best interest of the child that the parent's rights be permanently extinguished." See Steven V. v. Kelley H., 2004 WI 47, ¶27, 271 Wis.2d 1, 678 N.W.2d 856; see also WIS. STAT. § 48.426(2).

¶3 In January 2022, the County filed petitions to terminate the parental rights of Mary and the father of then-five-year-old Jamie, seven-year-old Michael, and nine-year-old Zachary. (The father is referred to herein by the pseudonym Adam. Adam's appeals from the circuit court's orders terminating his parental rights are addressed in a separate opinion.) In affidavits attached to the petitions, social worker Katherine Schroeder explained that the children had been removed from Mary and Adam's home in January 2019 and had been found to be in need of protection or services under WIS. STAT. § 48.13(10) in June 2019. In July of that year, dispositional orders were entered placing the children outside their parents' home and imposing conditions the parents would have to meet before their children would be returned.

¶4 In the termination petitions, the County raised one ground to terminate Mary's parental rights-the children's continuing need of protection or services. See WIS. STAT. § 48.415(2). That ground requires proof of three things: (1)"the child has been adjudged to be a child ... in need of protection or services and placed ... outside his or her home pursuant to one or more court orders"; (2)"the agency responsible for the care of the child ... has made a reasonable effort to provide the services ordered by the court"; and (3) "the child has been placed outside the home for a cumulative total period of 6 months or longer pursuant to an order listed under subd. 1. [and] the parent has failed to meet the conditions established for the safe return of the child to the home."

Sec. 48.415(2)(a)l.-3. Schroeder explained in her affidavits that despite the County's reasonable efforts to provide the services that had been ordered for Mary in 2019, Mary had failed to meet the conditions for the safe return of her children.

¶5 Mary appeared with her attorney, Brian Rolf, at a hearing on March 1, 2022, at which she denied the County's allegations and requested a jury trial. Later that month, the County served sets of 280 requests for admission under WIS. STAT. §804.11. See WIS. STAT. §48.293(4) (stating that "the discovery procedures permitted under [WIS. STAT.] ch. 804 shall apply in all proceedings under this chapter"). The requests addressed various topics, including events in the years preceding the children being removed from Mary and Adam's home, the events and circumstances that led to the children's removal from the home, and facts relevant to the children's continued need of protection or services. With Rolf's assistance, Mary admitted 259 of the requests. Among other things, Mary admitted that: (1) her children had resided outside her home for more than six months since entry of the dispositional orders in 2019; (2) the County had "made a reasonable effort to provide the services ordered by the court"; and (3) Mary had not met all the conditions for the safe return of her children.

¶6 The County subsequently moved for summary judgment, asserting that Mary's admissions established beyond genuine dispute the elements for termination on the ground of continuing need of protection or services. Mary did not file written responses to the County's motions. At a hearing in August 2022 at which Mary was present, Rolf informed the circuit court that Mary was "not objecting to ... the Motions [f]or Summary Judgment at this time." The court granted the County's motions and later held a dispositional hearing at which Rolf argued that the court should terminate Adam's parental rights but not Mary's. The court declined to do so, concluding that the factors pertaining to the best interest standard under WIS. STAT. § 48.426(3) "[were] overwhelmingly in favor of termination" of both parents' rights.

II. Postdisposition Proceedings

¶7 Following the entry of orders terminating her parental rights, Mary, through new counsel, filed a postdisposition motion alleging that Rolf had rendered ineffective assistance in admitting many of the County's requests for admission, which the circuit court relied on in granting summary judgment to the County in the grounds phase. The court held a two-day evidentiary hearing on Mary's motion (and a similar motion filed by Adam).

¶8 Rolf testified at the hearing about his representation of Mary and the strategy they developed, which was based on her wish not to contest the grounds for termination and instead focus on Adam as "the real problem" in the family and urge the circuit court to terminate his parental rights but not hers:

So [Mary] had made it very clear early ... as we were discussing how we were going to proceed that she did not wish to actually have a full trial on this matter or even a bench trial. That she didn't want kind of other people getting involved in that way. And she didn't want to have the trial just in front of the judge.

We had developed a strategy at the time, because we didn't know what [Adam] was doing, we were maintaining a trial posture. But ... our long-term plan at that time was that we were expecting to either enter a plea to the matter that she had not met the Conditions of Return or depending on how the State moved with the Request for Admissions and then go to the disposition and we were going to argue at disposition that the ongoing issues had been [Adam] in the case.

That he was the real problem, the root of the problem. That the only way to actively allow [Mary] to actually make real progress to be able to get the children back was to terminate his parental rights, but not [Mary]'s parental rights to allow her to continue going forward. Ultimately, that was the argument we made at the disposition as well.

Rolf testified that this strategy emerged early in the representation "when [he] presented her the different options that she could proceed with long-term and when she indicated she didn't want a trial [he] said, okay, well, then here's some kind of general strategies and general ideas that we can do." He confirmed that he explained "quite extensively" to Mary "the legal consequences of pleading to the grounds in the [p]etition." He also testified that he revisited the strategy with Mary "generally every time we spoke" to confirm that she still wished to pursue it and specific actions that would be taken pursuant to it. According to Rolf, Mary never told him she had changed her mind about the strategy.

¶9 Rolf denied that he had tried to talk Mary out of proceeding to trial in the grounds phase because that decision, in his view, belongs to the client, and he "generally [doesn't] try to influence clients on which way they should or shouldn't go. In that regard I just want to lay out [the] options," the...