Winnebago Cnty. Dep't of Human Servs. v. B.K.V. (In re A.K.)

1

In re the termination of parental rights to A.K.V., a person under the age of 18:

Winnebago County Department of Human Services, Petitioner-Respondent, v. B.K.V., Respondent-Appellant.

No. 2023AP310

Court of Appeals of Wisconsin, District II

June 7, 2023

This opinion will not be published.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

APPEAL from an order of the circuit court for Winnebago County, Cir Ct. No. 2020TP23 DANIEL J. BISSETT, Judge.

LAZAR J. ^[1]

¶1 B.K.V. (hereinafter Brenda)^[2] appeals an order terminating her parental rights. She seeks a new trial on the grounds that she discharged her second attorney who failed to withdraw, in violation of SCR 20:1.16(a), prior to the circuit court's dispositional hearing at which it granted Winnebago County Department of Human Services' petition for termination of her parental rights (TPR). Brenda also asserts that the court made an unfair determination of her credibility at her post-disposition remand hearing and that a new trial is warranted in the interest of justice pursuant to WIS. STAT § 805.15(1), or in the alternative, to remedy a miscarriage of justice with a discretionary reversal pursuant to WIS. STAT. § 752.35. Because this court determines that none of Brenda's arguments justify a new trial, the order of the circuit court is affirmed.

BACKGROUND

¶2 The County filed a petition seeking termination of both Brenda's and Neil's parental rights as to their daughter, Amelia, on July 28, 2020.^[3] Brenda entered a denial to the petition on October 8, 2020, and reserved her right to a jury trial. On August 23, 2021, Neil asked the circuit court to no longer have his attorney from the public defender's office represent him in the TPR case. His request was granted.

¶3 On April 14, 2022, Neil's second attorney sought court permission to withdraw. Over Neil's objection, the circuit court allowed the withdrawal. Brenda, even though she arrived late for that hearing, was present when her attorney was asked if she had a position on whether Neil's second counsel should be permitted to withdraw and when the court ordered that withdrawal.

¶4 At a hearing on September 22, 2021, Brenda informed the circuit court that she wanted her "attorney withdrawn and [to] have new counsel" appointed. The court explained to Brenda that the general policy of the public defenders' office is to appoint a replacement attorney only once, which Brenda acknowledged. On October 11, 2021 Attorney Karen Lueschow was appointed to represent Brenda. Right after her appointment, Lueschow advocated to allow Brenda to have a jury trial on the grounds/fitness phase of the TPR case.

¶5 The case was set for jury trial on the first phase on August 2, 2022.^[4]Instead of proceeding with trial, however, Brenda changed her plea to "no contest" as to the grounds/fitness phase of the termination process and requested that a dispositional hearing with respect to the best interests of the child be scheduled for a date forty-five days later. Brenda responded under oath^[5] to numerous questions from her counsel, the County's counsel, and the circuit court indicating that she understood her rights and options as well as the consequences of her plea. She also answered affirmatively to the court's question about whether she was "satisfied with the legal advice and assistance [she had] received from [her] attorney." She denied being forced or threatened to change her plea. At the end of the court's colloquy with Brenda, the court gave her one more opportunity to object, to wit:

Q: Is there anything else you wish to tell me or say on the record here today involving the grounds for the unfit phase?

A: No.

The court then accepted the plea and determined that there were adequate grounds for finding Brenda unfit. At no time did Brenda state that she had just been involved in an automobile accident and was emotionally distraught and/or physically ill. Brenda did not ask for additional time or indicate dissatisfaction with Attorney Lueschow; nor did she indicate she wanted to retain her own attorney as is her prerogative under WIS. STAT. § 48.23(5).^[6]

¶6 At the dispositional hearing on September 23, 2022, Brenda testified and called witnesses with the assistance of Attorney Lueschow. During the hearing, Brenda took time to confer with her counsel off the record (at the conclusion of Brenda's mother's testimony). Lueschow made a strong and impassioned argument that there was a substantial relationship between the child and Brenda and that that relationship should not be severed lest it cause harm to the child. At no time during the dispositional hearing did Brenda indicate that she was hesitant and did not want to proceed.

¶7 The circuit court found that termination of Brenda's parental rights was in Amelia's best interest, citing, among other factors, that the child had not been in Brenda's home since birth, had a very strong likelihood of being adopted, had a very strong relationship with her foster parents, and was not likely to be harmed by the severance of relationships with Brenda and her biological family members. The court therefore granted the County's petition.

¶8 After the order terminating Brenda's parental rights was entered, Brenda retained appellate counsel who filed a motion requesting a remand back to the circuit court. This court, finding good cause, issued an order on March 9, 2023, granting Brenda's motion for a remand "to the circuit court for the purpose of necessary fact-finding regarding whether she discharged her [second] trial attorney." Brenda's motion for post-termination relief was to be filed in the circuit court by March 16, 2023, and was to "present all grounds for relief."

¶9 Following the order of this court, Brenda filed a written motion seeking a new trial pursuant to WIS. STAT. § 801.15(4). Brenda asserted that she had asked Attorney Lueschow to withdraw prior to her change of plea, and that Lueschow's failure to withdraw from the case constituted a violation of SCR 20:1.16(a)(3), which provides that "a lawyer ... shall withdraw from the representation of a client if . the lawyer is discharged." At a hearing on this motion, now relying instead on WIS. STAT. § 805.15(1), Brenda testified that she had asked Lueschow to withdraw multiple times, beginning in May, 2022, and that her reasons for this request included (among other things) Lueschow's refusal to negotiate a settlement with the County, Brenda's concerns about the security of Lueschow's computer system, Lueschow's inappropriate attitude and demeanor towards Brenda, and Lueschow's advice to plead no contest rather than to proceed with a jury trial on the grounds/fitness phase, as Brenda purportedly wanted. Brenda's new counsel did not call any witnesses other than Brenda, whose testimony was replete with hearsay statements.

¶10 The circuit court did not find Brenda to be a credible witness. It denied her motion for a new trial on the basis of Attorney Lueschow's failure to withdraw, noting that "it's generally a good practice to follow up on [communication of a desire to discharge] and not run to the office, so to speak, and prepare a motion to withdraw ... and see if time may allow for an opportunity to continue representation." The court also declined to order a new trial "in the interests of justice," stating that it didn't "feel on this record there is a sufficient basis for [the circuit court] to determine in the interests of justice under [WIS. STAT. §] 805.15(1) that a new trial should be granted for the mother."

¶11 Brenda appeals, arguing that she is entitled to a new trial on the termination of her parental rights due to Attorney Lueschow's alleged violation of SCR 20:1.16(a), the circuit court's "unfair credibility determination" at the postdisposition hearing on remand, and in the interest of justice pursuant to WIS. STAT. § 805.15(1), or in the alternative, to remedy a miscarriage of justice with a discretionary reversal pursuant to WIS. STAT. § 752.35. For the reasons set forth below, this court affirms the circuit court.

STANDARD OF REVIEW

¶12 "The legislature and [our supreme] court have made clear that the best interests of the child is the polestar of all determinations under [WIS. STAT.] ch. 48." David S. v. Laura S., 179 Wis.2d 114, 149-50, 507 N.W.2d 94 (1993). "A determination of the best interests of the child in a termination proceeding depends on first-hand observation and experience with the persons involved and therefore is committed to the sound discretion of the circuit court." Id. at 150. "The exercise of discretion requires a rational thought process based on examination of the facts and application of the relevant law." Id.

¶13 A circuit court's ruling on a motion for a new trial in the interest of justice is also within its discretion. State v. Williams, 2006 WI.App. 212, ¶13, 296 Wis.2d 834, 723 N.W.2d 719. Appellate courts "will affirm unless there is a clear showing of [an erroneous exercise] of discretion," Totsky v. Riteway Bus Serv., Inc., 2000 WI 29, ¶46, 233 Wis.2d 371, 607 N.W.2d 637, and will "look for reasons to sustain a [circuit] court's discretionary decision." Farmers Auto. Ins. Ass'n v. Union Pac. Ry. Co., 2009 WI 73, ¶32, 319 Wis.2d 52, 768 N.W.2d 596.

¶14 Simply put, appellate courts owe "great deference" to a circuit court's decision to grant-or deny-a motion for a new trial in the interest of justice. Sievert v. American Fam. Mut. Ins. Co., 180 Wis.2d 426, 431, 509 N.W.2d 75 (Ct. App. 1993), aff'd, 190 Wis.2d 623, 528 N.W.2d 413 (1995). "This is because the order is itself discretionary, and the [circuit] court is in the best position to observe and evaluate the evidence." Seivert, 180 Wis.2d at 431.

DISCUSSION

¶15 The decision to terminate a parent's...