Southdakota v. A.V. (In re M.D.)

386 Wis.2d 630

927 N.W.2d 932 (Table)

2019 WI App 21

IN RE the termination of parental rights to M.D., a person under the age of 18:

S.D., Petitioner-Respondent

v.A.V., Respondent-Appellant.

Appeal No. 2018AP1150

Court of Appeals of Wisconsin.

DATED AND FILED March 7, 2019

KLOPPENBURG, J.¹

¶1 The circuit court entered an order terminating the appellant A.V.’s parental rights to his daughter, M.D. (the child), following a "grounds" hearing at which the court determined that the grounds for terminating A.V.’s parental rights had been established. A.V. makes two arguments on appeal. First, A.V. argues that he received ineffective assistance of counsel at the grounds hearing and that, as a result, this case must be remanded for the circuit court to conduct a new grounds hearing. Second, A.V. argues that the court erroneously entered the termination order without first holding a dispositional hearing on the question of whether terminating his parental rights serves the child’s best interests and that, as a result, the order must be reversed and this case remanded to the circuit court for it to conduct a dispositional hearing.

¶2 As to the first issue, A.V. fails to show that he received ineffective assistance of counsel at the grounds hearing. As to the second issue, the respondent S.D. concedes that the circuit court improperly terminated A.V.’s parental rights without first holding a dispositional hearing on the question of the child’s best interests. Accordingly, I reverse the order terminating A.V.’s parental rights and remand to the circuit court for it to conduct a dispositional hearing.

BACKGROUND

¶3 A.V. and S.D. married in 2012 and separated in 2013. In early 2014, S.D moved in with her then future, now current husband, A.D. (the stepfather). S.D. subsequently gave birth to the child in May 2014, and a paternity test determined that A.V. is the child’s biological father.

¶4 Less than one week after the child’s birth, A.V. was arrested and taken into custody for possession of child pornography. In November 2015, A.V. was convicted of nine counts of possession of child pornography and is currently serving a sentence of eight years of initial confinement and eight years of extended supervision. He has remained in custody since his arrest.

¶5 In June 2017, S.D. filed a petition to terminate A.V.’s parental rights to the child. In her petition, S.D. alleged two separate grounds for termination: "abandonment" under WIS. STAT. § 48.415(1), and "failure to assume parental responsibility" under § 48.415(6). A.V. contested the petition, and the circuit court held a fact-finding, or "grounds" hearing, at which it heard testimony from S.D., A.V., and A.V.’s mother. At the conclusion of the hearing, the court found that S.D. had established both grounds for termination of A.V.’s parental rights.

¶6 Immediately after the circuit court found that the grounds for termination had been proven, S.D. submitted a proposed order terminating A.V.’s parental rights. The court signed the order and indicated that "the parental rights of [A.V.] at this time are being terminated."

¶7 A.V. filed a motion for post-disposition relief. In the motion, he argued that he had received ineffective assistance of counsel at the grounds hearing and that the circuit court erroneously terminated his parental rights without holding a separate dispositional hearing on the issue of the child’s best interests as required under WIS. STAT. § 48.427. The court held a hearing on the motion for post-disposition relief, at which it heard testimony from A.V., S.D., and A.V.’s trial counsel. The court determined that A.V.’s trial counsel had not been ineffective at the grounds hearing. The court agreed with A.V. that a separate dispositional hearing was necessary, but did not order or conduct such a hearing because, at that point, the court of appeals had obtained jurisdiction over the appeal.² The circuit court then entered an order denying A.V.’s motion for post-disposition relief. A.V. appeals.

DISCUSSION

¶8 Wisconsin has a two-part statutory procedure for the involuntary termination of parental rights. Sheboygan Cty. DHHS v. Julie A.B. , 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402. The purpose of the first, or "grounds" phase is to determine whether one or more of the statutory grounds listed in WIS. STAT. § 48.415 for the termination of parental rights is present. WIS. STAT. § 48.424(1)(a) ; see also Steven V. v. Kelley H. , 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856 ("In the first, or ‘grounds’ phase of the proceeding, the petitioner must prove by clear and convincing evidence that one or more of the statutorily enumerated grounds for termination of parental rights exist."). The parent’s rights are paramount during the grounds phase. Evelyn C.R. v. Tykila S. , 2001 WI 110, ¶22, 246 Wis. 2d 1, 629 N.W.2d 768. If the court finds that grounds for the termination of parental rights are proven, the court shall find the parent unfit. Tammy W-G. v. Jacob T. , 2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854 ; WIS. STAT. § 48.424(4).

¶9 The second phase, the dispositional hearing, "occurs only after the fact finder finds a WIS. STAT. § 48.415 ground has been proved and the court has made a finding of unfitness. In this step, the best interest of the child is the ‘prevailing factor.’ " Tammy W-G , 333 Wis. 2d 273, ¶19 (quoted source omitted). During this phase of the proceedings "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." Steven V. , 271 Wis. 2d 1, ¶24; see also WIS. STAT. § 48.426(2). Although the parent may still participate in the disposition phase (through the presentation of evidence and argument), the circuit court does not revisit the finding of parental unfitness. State v. C.L.K. , 2019 WI 14, ¶3, ––– Wis. 2d ––––, ––– N.W.2d –––– (Nos. 2017AP1413, 2017AP1414 ).

¶10 This appeal concerns both stages of the termination of parental rights procedure. As stated in the opening paragraph, A.V. makes two arguments on appeal: (1) he received ineffective assistance of counsel at the grounds hearing; and (2) the circuit court erred by entering an order terminating his parental rights without first conducting a dispositional hearing to determine whether the termination is in the child’s best interests. As a result, he argues, the order terminating his parental rights should be reversed, and the case remanded for both a new grounds hearing and a dispositional hearing. I address each argument in turn.

I. The Grounds Hearing

¶11 A.V. argues that he received ineffective assistance of counsel at the grounds hearing. I first review the applicable law and then address the details of A.V.’s ineffectiveness of counsel argument.

A. Applicable Law as to Ineffectiveness of Counsel

¶12 A parent involved in an involuntary termination of parental rights proceeding has a statutory right to be represented by counsel. WIS. STAT. § 48.23(2). The statutory right to counsel includes the right to receive the effective assistance of counsel. Oneida Cty. DSS v. Nicole W. , 2007 WI 30, ¶33, 299 Wis. 2d 637, 728 N.W.2d 652. An ineffective assistance of counsel claim in a termination of parental rights proceeding is analyzed under the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668 (1984). Nicole W. , 299 Wis. 2d 637, ¶33. Under that standard, the party alleging ineffective assistance has the burden to prove both that his or her counsel’s performance was deficient and that he or she was prejudiced by the deficient performance. Strickland , 466 U.S. at 687.

¶13 To establish the first prong, deficient performance, the party must show that the representation was "outside the wide range of professionally competent assistance." Id. at 690. Reviewing courts are highly deferential to strategic decisions made by counsel and should make "every effort ... to evaluate the conduct from counsel’s perspective at the time." Id. at 689. Moreover, the law does not require counsel to make every conceivable argument in support of the client. Id. Rather, counsel should structure the case around strategic decisions rationally based on the facts of the case. Id.

¶14 To establish the second prong, prejudice, the party must show that there is "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶15 If the court concludes that the party has not proved one prong, it need not address the other. Strickland , 466 U.S. at 697 ; State v. Nielsen , 2001 WI App 192, ¶12, 247 Wis. 2d 466, 634 N.W.2d 325. ("there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the [party] makes an insufficient showing on one").

¶16 Whether counsel’s actions constitute ineffective assistance presents a mixed question of fact and law. State v. Pitsch , 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). This court will not reverse the circuit court’s factual findings unless they are clearly erroneous. Id. at 634. However, whether counsel’s behavior was deficient and whether it was prejudicial to the party are questions of law which this court reviews de novo. Id.

B. A.V.’s Ineffectiveness of Counsel Arguments

¶17 Here, A.V. argues that his counsel was ineffective by: (1) failing to introduce into evidence documents from A.V. and S.D.’s divorce proceedings, which he asserts show both S.D.’s antipathy to his contacting the child and that he did seek physical placement of the child; (2) failing to object to evidence of A.V.’s convictions of possessing child pornography, or of the behavior underlying those convictions; (3) failing to object to S.D.’s testimony that the child had a close relationship with the stepfather; and (4) failing to object to certain statements made by S.D.’s counsel and by the...