Kenosha County DC & FS v. K. E. H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1101 Cir. Ct. No. 2022TP66

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.R.Q. JR., A PERSON UNDER
THE AGE OF 18:

KENOSHA COUNTY DIVISION OF CHILDREN & FAMILY SERVICES,

PETITIONER-RESPONDENT,

V.

K.E.H.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
JODI L. MEIER, Judge. Affirmed.
No. 2024AP1101

¶1 LAZAR, J.1 Kara appeals an order terminating her parental rights
to Josh, a child born in 2020, on the basis that her trial attorney provided
ineffective assistance of counsel during her grounds phase jury trial.2 She asserts
her trial counsel (1) failed to adequately prepare for trial; (2) failed to keep the
issues of Josh’s best interests and the “value of permanency” for him out of the
case; and (3) erroneously elicited detrimental testimony that opened the door to
information about Josh’s sibling (Caleb) and that child’s CHIPS3 case. Based
upon the cumulative effect of her attorney’s alleged ineffective assistance, Kara
claims she was prejudiced and that the denial of her postconviction motion should
be reversed, the order terminating her parental rights should be vacated, and the
matter should be remanded to the trial court. This court disagrees.

BACKGROUND

¶2 Josh, Kara’s second child, was born in November, 2020. Even prior
to Josh’s birth, Kara had been involved with Kenosha County Department of
Children and Family Services due to concerns about the safety of Josh’s older
brother, Caleb; the County had received reports that Kara had been “under the
influence” while caring for the child. When Josh was born, he had traces of
Kara’s prescription drugs in his system.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
2
In order to protect her confidentiality, pursuant to WIS. STAT. RULE 809.19(1)(g), this
court refers to the mother of the child by the pseudonym she selected. The child who is involved
in this appeal is referred to by the pseudonym Josh; her other child is referred to by the
pseudonym Caleb.
3
CHIPS stands for child in need of protection or services. See WIS. STAT. § 48.13.

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No. 2024AP1101

¶3 On May 21, 2021, Kara attended a court hearing for Caleb. Kara
asserts that, due to stress, she took a double dose of her prescribed Xanax that day.
A Kenosha County service provider who had been Kara’s Alcohol and Other Drug
Abuse (AODA) assessment provider noticed the effect of that drug on Kara. After
the hearing, Kara called her mother (who was caring for the two boys) and then
called 911 because she “passed out,” her “ears … started ringing,” and she
“couldn’t see.” She was admitted to the hospital for at least one day during that
weekend. Kara’s overdose and contact with 911/law enforcement was reported to
her County Child Protection Services (CPS) worker, Allen Smith.

¶4 Josh was detained by Kenosha County Juvenile Intake Services on
the following Monday, May 24, 2021, after Smith was unable to contact Kara that
weekend. The County filed a CHIPS petition on May 28, 2021. On September 2,
2021, Josh was found to be in need of protection or services pursuant to WIS.
STAT. § 48.13(10m) and was placed outside of Kara’s home starting on
November 2, 2021. Conditions required for Josh’s return were set out in
dispositional and permanency orders and verbally given to Kara in court on
November 2, 2021, November 17, 2021, and June 28, 2022. The County filed a
petition to terminate Kara’s parental rights to Josh on December 14, 2022, on the
grounds that (1) he continued to be in need of protection or services pursuant to
WIS. STAT. § 48.415(2), and (2) Kara had failed to assume parental responsibility
for Josh pursuant to § 48.415(6).4

4
The County also sought to terminate Josh’s father’s parental rights on the same
grounds. On April 19, 2023, the father was found to be unfit by default and his parental rights
were subsequently terminated after a best-interest hearing on September 18, 2023; his parental
rights to Josh are not a subject of this appeal.

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No. 2024AP1101

¶5 Likely due to staffing issues, it wasn’t until April 3, 2023, that the
State Public Defender’s office appointed Brenda VanCuick, an attorney with over
twenty years of experience—at least seventeen of which involved child protection
and termination of parental rights (TPR) cases—to represent Kara. In the ensuing
month, attorney VanCuick filed a demand for discovery and successfully sought a
judicial substitution.

¶6 VanCuick obtained discovery that covered both Josh and Caleb. It
consisted of approximately 2,000-3,000 pages on a flash drive. She reviewed the
materials related to Josh and skimmed through the files related to Caleb. As
further trial preparation, VanCuick met with two of the service provider witnesses
listed by the County. Both individuals mentioned some favorable comments about
Kara that VanCuick hoped to elicit during the trial.

¶7 The matter was set for a jury trial on July 31, 2023, to determine
whether there were grounds for terminating Kara’s parental rights.5 See WIS.
STAT. § 48.424(1). After a July 27 jury status hearing, VanCuick met in person
with Kara for between one and two hours; on the Sunday prior to the jury trial,
VanCuick again met with Kara for over three hours.

¶8 The grounds-phase jury trial lasted six days and concluded on
August 7, 2023. In addition to seven witnesses called by the County, Kara also
testified. Ultimately, the jury returned verdicts against Kara on both of the

5
A termination of parental rights case “involve[s] a two-step process.” Tammy W-G. v.
Jacob T., 2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854. The first step is the factfinding
hearing on grounds for termination. Id. “The second-step, the dispositional hearing, occurs only
after the fact-finder finds a … ground has been proved and the court has made a finding of
[parental] unfitness.” Id., ¶19. It is in the second step that the court considers the best interest of
the child. Id.

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No. 2024AP1101

County’s asserted grounds (Child in Continuing Need of Protection or Services
and Failure to Assume Parental Responsibility).

¶9 The second phase of the TPR case—the dispositional hearing
regarding Josh’s best interests—took place on September 18, 2023. The trial court
concluded that it was in Josh’s best interest that Kara’s parental rights be
terminated. Following entry of an order to that effect, Kara obtained appellate
counsel and filed a postdisposition motion for a new trial. Kara asserted that she
had received ineffective assistance of counsel because Attorney VanCuick failed
to prepare for her trial, permitted the introduction of evidence related to Josh’s
best interests at the grounds-phase trial, and “did not grasp the prejudice inflicted
by evidence pertaining to Caleb’s removal from Kara’s home or the CHIPS case
that followed.”

¶10 On September 26, 2024, the trial court held a Machner6 hearing at
which VanCuick testified. In addition to explaining her preparation as recounted
above, she responded to questioning regarding each incident that Kara alleged
constituted deficient performance. For example, relevant to VanCuick’s decision
not to object to certain statements in opening and closing arguments during the
grounds-phase trial about the value of permanence for Josh, VanCuick testified
that objecting during opening and closing arguments “actually draw[s] more
attention to whatever was said and the jury will … take notice.”

¶11 Kara had also relied on the fact that in her own closing argument,
VanCuick misstated that Kara had illegally purchased and used Methadone, rather

6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

5
No. 2024AP1101

than the similar drug Suboxone, which Kara had actually used. Kara argued that
the County “seized on” this error in rebuttal, suggesting that she bought
Methadone in addition to Suboxone. VanCuick testified that this was not
intentional, but rather accidental:

Complete slip of the tongue and I didn’t even realize
that I said Methadone instead of Suboxone. I didn’t realize
that I said it so much so that when the [County] came up
with their rebuttal and discussed ... the things that they did
about Methadone and Suboxone ... I think [Kara] and I
were both looking at each other like, what? Where did that
come from?

¶12 Finally, Kara had taken issue with the fact that there were various
lines of testimony as to whether she had suffered an overdose or there was simply
an adverse reaction to the Xanax she had taken on May 21 and criticized
VanCuick for eliciting unfavorable testimony that the incident was, in fact, an
overdose. VanCuick explained:

Well, in my experience I was a firefighter for 27 and a
half years here in the city. Many of the calls that we went
on in my last I’ll say five years were overdoses and an
overdose call in my medical experience is someone who’s
not conscious. Barely breathing. That we have to give
some type of medication or intervention to in order to get
them back into a normal range of vital signs.

So in -- in my experience with overdoses and what’s
considered an overdose I -- I would say that what [Kara]
experienced … would have been considered a -- an allergic
reaction or -- or something of that nature.

¶13 During its oral ruling on October 18, 2024, the trial court first
considered VanCuick’s trial preparation. It noted that VanCuick looked over the
“lengthy discovery,” even though she focused more on Josh’s notes, not Caleb’s,
that she had lengthy in-person meetings with Kara, and that she had pre-trial
discussions with two of the service provider witnesses. It also did not consider her

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No. 2024AP1101

failure to call an expert on “the meaning of overdose” to be the product of a lack
of preparation:

Attorney VanCuick is a professional. She’s extremely
experienced in these areas. She’s been successful in trials
in this area before so I don’t find anything deficient about
her trial strategy based upon her explanations.

I accept her explanations. I shouldn’t say trial strategy.
Trial preparation. Excuse me. So I -- I don’t find that ...
she failed to prepare for trial in an acceptable fashion.

¶14 With respect to alleged deficiencies during the jury trial, the trial
court found that VanCuick had philosophical or strategic reasons for not objecting
during opening statements and closings, that her saying “Methadone instead of
Suboxone” during closing was simply a mistake and there was no showing that the
jury relied upon it to Kara’s detriment, that it is the “nature of the beast of trial
really” that an attorney may miss a statement or two by a witness, that she was
attempting to elicit favorable testimony from the two service provider witnesses
only to have them answer in unexpected ways, and that VanCuick’s questioning
that opened the door to testimony about Caleb was not intentional, but rather the
result of poor questioning in a case where there is more than one child involved.
The court thus concluded that VanCuick’s trial performance was not deficient, but
rather was “within the wide range of reasonable, professional assistance”:

I don’t see anything deficient about overall ... what
Attorney VanCuick did. Not to say that she didn’t perhaps
make that mistake about Suboxone or Methadone, but I
didn’t -- again, it’s not evidence anyway. It was in closing
and the jury was properly instructed about that.

The strategic trial decision in Attorney VanCuick’s
explanations on most of the things were rationally based on
the facts of this case, the circumstances of the case, and if
it’s based on facts and the law it’s not ineffective assistance
of counsel.

7
No. 2024AP1101

It -- we can disagree with it. We can look back and say,
perhaps this should have been done or this should not have
been done, but assistance even if it’s deficient in the sense
that counsel could have done better, doesn’t mean it’s in
and of itself constitutionally ineffective.

As I’ve stated before it’s typical for evidence in the
course of a trial especially a lengthy one not to come in as
expected for each side. For both sides, but the proper
standard of judging attorney performance is that of
reasonably effective assistance considering all of the
circumstances.

¶15 Given its conclusion that there was no ineffective assistance of
counsel, the trial court declined to address whether there was any prejudice.
Nevertheless, the court noted:

I didn’t hear any testimony … that she missed something
that would have been extremely helpful in the case notes to
[Kara]’s case as it related to again [Caleb’s] case notes or
there was some critical piece of evidence that didn’t get
presented because Attorney VanCuick missed that.

¶16 Kara appeals.

DISCUSSION

¶17 It is well settled that criminal defendants are constitutionally
guaranteed the right to the assistance of competent counsel. Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). This fundamental right is also
applicable in Wisconsin to parents in termination of parental rights cases. State v.
Shirley E., 2006 WI 129, ¶¶30-31, 298 Wis. 2d 1, 724 N.W.2d 623; WIS. STAT.
§ 48.23(2). The “statutory provision for appointed counsel [to parents in a CHIPS
proceeding] includes the right to effective counsel.” A.S. v. State, 168 Wis. 2d
995, 1004-05, 485 N.W.2d 52 (1992).

8
No. 2024AP1101

¶18 “The benchmark for judging any claim of ineffective assistance of
counsel is whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” State v. Jenkins, 2014 WI 59, ¶34, 355 Wis. 2d 180, 848 N.W.2d 786.
The two-prong test to be used by the trial court was set forth in Strickland and
adopted in Wisconsin in State v. Mayo, 2007 WI 78, ¶¶33, 60, 301 Wis. 2d 642,
734 N.W.2d 115. “First, the [party] must demonstrate that counsel’s performance
was deficient.” Id., ¶33. “Second, the [party] must demonstrate that counsel’s
deficient performance was prejudicial to his or her defense.” Id. In essence,
“[a party] who alleges that counsel was ineffective by failing to take certain steps
must show with specificity what the actions, if taken, would have revealed and
how they would have altered the outcome of the proceeding.” State v. Prescott,
2012 WI App 136, ¶11, 345 Wis. 2d 313, 825 N.W.2d 515 (quoting State v.
Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388 (Ct. App. 1999), aff’d, 2000 WI
101, 237 Wis. 2d 197, 614 N.W.2d 477).

¶19 The party asserting an ineffective assistance of counsel claim bears
the burden of proof as to both of the Strickland analysis prongs. See State v.
Romero-Georgana, 2014 WI 83, ¶¶39-41, 360 Wis. 2d 522, 849 N.W.2d 668;
State v. Hudson, 2013 WI App 120, ¶11, 351 Wis. 2d 73, 839 N.W.2d 147. This
court “need not address both the performance and the prejudice elements, if the
[party] cannot make a sufficient showing as to one or the other element.” Mayo,
301 Wis. 2d 642, ¶61; State v. Tomlinson, 2001 WI App 212, ¶40, 247 Wis. 2d
682, 635 N.W.2d 201, aff’d, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.

¶20 When reviewing trial counsel’s performance, this court gives great
deference to counsel and every effort must be made to avoid a determination of

9
No. 2024AP1101

ineffectiveness based upon hindsight. State v. Reynolds, 206 Wis. 2d 356, 363,
557 N.W.2d 821 (Ct. App. 1996). “Rather, the case is reviewed from counsel’s
perspective at the time of trial, and the burden is ... on the [appellant] to overcome
a strong presumption that counsel acted reasonably within professional norms.”
Id. (citation omitted). Constitutional ineffective assistance “is a mixed question of
fact and law.” State v. McDowell, 2004 WI 70, ¶31, 272 Wis. 2d 488, 681
N.W.2d 500. And, while this court “will not disturb the [trial] court’s findings of
fact unless they are clearly erroneous,” whether defense counsel’s performance
was constitutionally ineffective is a question of law to be reviewed de novo. Id.;
State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).

¶21 In this appeal, Kara’s claim for ineffective assistance of counsel is
based upon three alleged errors by her attorney: (1) failure to prepare for the jury
trial; (2) failure to object to arguments that mentioned the value of permanency for
Josh; and (3) elicitation of detrimental testimony about Caleb and his CHIPS case.
Kara asserts that these errors were prejudicial because the jury heard about Josh’s
best interests and what should happen next and because VanCuick “made too
many objectively unreasonable errors, too many mistakes that hurt [Kara’s]
chances by muddying the evidentiary waters with prejudicial material, to produce
trustworthy verdicts.” None of these arguments merit a reversal.

I. Trial counsel adequately prepared for trial.

¶22 Kara contends that “VanCuick’s gravest error ... was her failure to
prepare.” Kara argues that the two pretrial preparation meetings amounted to
minimal communication. She further contends VanCuick did not thoroughly
review the discovery materials and was thereby not prepared to conduct
“productive examinations” or make careful arguments. Finally, Kara asserts

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No. 2024AP1101

VanCuick’s misstatement in closing regarding Methadone further evidenced an
underprepared lawyer.

¶23 At the Machner hearing, Attorney VanCuick refuted the assertion
that she was not adequately prepared for Kara’s jury trial. She explained that she
was not counsel in the case regarding Caleb, so—aside from the material on the
discovery flash drive—she did not have access to his files (CHIPS and TPR). The
trial court had questioned her preparedness at trial based on her unfamiliarity with
Caleb’s files, suggesting that VanCuick had not done her due diligence or
reviewed sufficient discovery.7 But, during the Machner hearing, the court
concluded that VanCuick’s trial preparation was, in fact, acceptable.

¶24 While it certainly is true that VanCuick could have asked for
voluminous explanations about the data storage system regarding Caleb, she fully
explained that she was knowledgeable as to the files and materials about Josh.
This raises the interesting question as to how much an attorney in a TPR case
should investigate cases of related children. The key issue, though, is whether the
County has proven that this parent is unfit to care for this child. And, that was the
issue VanCuick prepared to argue during the trial. She drafted cross-examination
questions she believed would elicit favorable testimony. In addition, VanCuick
testified that her two lengthy meetings with Kara were not the only times they
communicated; VanCuick would meet with Kara around other court hearings and
they often texted each other. The trial court looked to these facts and also

7
Part of that scolding by the trial court derived from a misunderstanding about notes
taken by various social workers that were stored in the County’s electronic database. Even the
County and one of the social workers, however, were unaware as to precisely how the system
worked and which parts were visible to other workers.

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No. 2024AP1101

emphasized VanCuick’s vast CHIPS and TPR experience and determined that she
had adequately reviewed the relevant materials.

¶25 After a careful review of the trial transcripts—with an emphasis on
VanCuick’s direct and cross-examination questions—this court concludes that
VanCuick was more than adequately prepared for the jury trial. This court did not
find, as Kara asserts, “a host of unreasonable errors at trial that stemmed from
inadequate preparation.” Even though, as the trial court noted, there were times
VanCuick’s questions were convoluted or could have been better phrased, Kara
was not entitled to a perfect or ideal attorney.8 See State v. Burton, 2013 WI 61,
¶48, 349 Wis. 2d 1, 832 N.W.2d 611; State v. Balliette, 2011 WI 79, ¶22, 336
Wis. 2d 358, 805 N.W.2d 334; State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571,
665 N.W.2d 305 (an attorney’s trial preparation “need not be perfect, indeed not
even very good, to be constitutionally adequate” (citation omitted)). VanCuick’s
preparation was adequate to enable effective representation during Kara’s six-day
jury trial.

8
The trial court wisely noted:

We all know that evidence doesn’t always come in as we expect
during the course of a trial and we deal with that.

In and of itself is that deficient?... I don’t believe that it is
deficient again because of that reason and in fact this is one of
the witnesses that Attorney VanCuick spoke to.

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No. 2024AP1101

II. Trial counsel’s strategic decisions during trial were not deficient
performance.

A. Statements about the value of permanence for Josh

¶26 Kara contends there were several instances—without objection from
VanCuick—when the County and the guardian ad litem “invited the jury to
consider Josh’s best interests and to find grounds based on those interests—not on
the evidence,” contrary to Door County Department of Health & Family Services
v. Scott S., 230 Wis. 2d 460, 468, 602 N.W.2d 167 (Ct. App. 1999). Kara
complains that this set the jury on a course to look beyond the purpose of the
grounds-phase trial and unfairly prejudiced Kara. Kara does not address the clear
instructions made by the trial court at the start9 of the trial that explain the concept
of permanence as it relates to the jurors’ deliberations:

This hearing is part of the process that was started by the
filing of a petition by the Kenosha County Division of
Children and Family Services. The petition asks that the
parental rights of [Kara] to [Josh] a two-year-old child be
terminated.

The petition alleges that [Josh] is in need of protection
or services and that [Kara] failed to assume parental
responsibility for [Josh]. I want to emphasize to you that
this hearing is only one part of a two-part process that may
terminate [Kara]’s parental rights to [Josh].

You will not be asked to decide if [Kara]’s parental
rights should be terminated. Your responsibility is to
determine whether the grounds for termination alleged in
the petition have been proved. In doing so you should not
consider what the final result of this proceeding might be.

If you determine that grounds for termination of
[Kara]’s parental rights have been proved it is my

9
Similar instructions were given at the conclusion of the trial, immediately prior to
deliberations.

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No. 2024AP1101

responsibility to determine whether her parental rights
should be terminated.

….

Remarks of the attorneys are not evidence. If any remarks
suggest certain facts not in evidence disregard the
suggestion.

….

The purpose of an opening statement is to outline for
you what each side expects to prove so that you will better
understand the evidence as it is introduced during the trial.
I must caution you however that the opening statements are
not evidence.

¶27 Almost immediately after these instructions were read to the jurors,
the County’s counsel made her opening statement, without objection, and focused
upon how Kara had, for over two years, failed to meet the requisite conditions to
have Josh returned to her home:

So first in terms of the facts, [Josh] was born
November 24th, 2020, so at this point he is two-and-a-half
years old.

He has spent every day of the last 26 months so two
years, two months in out of home care. Placed in foster
care. Raised by a licensed foster care provider ... here in
Kenosha. For every day since May 24th, 2021, he has been
waiting in foster care. Waiting for his biological mother,
[Kara], who’s present in court to choose him over abusing
drugs.

He’s been waiting for his biological parent to complete
the Judge’s conditions. Those conditions of return to safely
return [Josh] to a parent’s home for the first time since he
learned to walk. Since he learned to feed himself. Since he
learned to talk. He’s been waiting since he was six months
old.

Nearly his entire life and he is still waiting today and
that’s why the 13 of you are here to end the waiting for him
and to give him the permanency he deserves.

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No. 2024AP1101

¶28 Also in the opening statement, the County described how CHIPS
cases work—that the parties and the trial court work towards different permanency
goals at the same time:

Every time we com[e] back into court the Judge has to
decide what type of permanency we should be working
toward for [Josh]. Should the Department of Children and
Family Services continue working to reunify [Josh] with
[Kara] or has [Kara] completed few to none of those
conditions of return?

Has she returned to drug use? Has she returned to
unsafe decisionmaking? Again, has there been little
progress by [Kara] in getting [Josh] safely home? And
when that happens the Judge decides like … this case that
the Department of Children and Family Services shouldn’t
just be working to reunify baby [Josh] with [Kara].

The Judge decides that DCFS should work to provide
[Josh] permanency through adoption and that brings us to
today. [Josh] has remained in foster care for the last 26
months as I indicated. Two years, two months of his just
32 months of life.

You’ll hear evidence that it’s time for us to provide
baby [Josh] who’s now toddler [Josh] with permanency
through termination of parental rights. In this case you
determine as the jurors whether grounds exist to terminate
the parental rights of [Kara] to [Josh].

¶29 Attorney VanCuick did make objections during the
guardian ad litem’s opening and closing statements that were sustained.10 In
10
For example:

[GAL:] We had all kinds of services she’s going to. Not
completed. Not done. Not shown up for and the thing of it is
when you get up in the morning most parents I hope think about
what their child needs that day and what [Josh] has needed is his
mom to accept the tools Social Services is giving her.

MS. VANCUICK: Objection. Improper argument.

THE COURT: Sustained. This is opening.

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No. 2024AP1101

addition, she successfully objected several other times, including when the County
questioned a social worker about Kara’s “compliance with [County in-home]
service that was being utilized to keep [Caleb] at home.”

¶30 Kara’s arguments on this point are without merit. First, jurors are
presumed to follow instructions provided to them by the trial court. Weborg v.
Jenny, 2012 WI 67, ¶69, 341 Wis. 2d 668, 816 N.W.2d 191; State v. Grande, 169
Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Neither opening statements
nor closing arguments are evidence, and jurors are cautioned to remember that
when they deliberate. See Mayo, 301 Wis. 2d 642, ¶44. The trial court properly
advised the jurors, telling them twice that closings and other statements by the
attorneys are not evidence.

¶31 Next, the phrase “best interests” was never mentioned during the
six-day jury trial. The concept of “permanency” was mentioned, but that was
done to explain CHIPS procedures and the permanency planning for if and when
Kara’s conditions for return were met. Moreover, VanCuick’s objection to the
potentially improper phrasing in the closing by the guardian ad litem was
sustained.

¶32 Finally, VanCuick explained it was her trial strategy to avoid
objections during opening statements and closings because they are not evidence,
the jurors do not have their note pads, and sometimes objections “draw more
attention to whatever was said.” As another part of her trial strategy, VanCuick
tries to spin negative facts in a positive light in lieu of making multiple objections.
Even with that reasonable overall strategy, VanCuick did eventually object when
the guardian ad litem went too far over the line.

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No. 2024AP1101

¶33 The trial court found that VanCuick’s opening and closing objection
techniques were strategic, were understandable given the jury instructions, and
were rationally based on the facts and circumstances present in Kara’s trial.
Accordingly, it found VanCuick’s conduct in this respect was not deficient.

¶34 Given the strong presumption that jurors will heed jury instructions,
together with VanCuick’s trial strategy and the fact that the phrase “best interests”
was never mentioned, this court also determines that the lack of objections to the
passing comments about permanency did not rise to the level of imperfect, much
less deficient, assistance of counsel.

B. Statements about Caleb

¶35 Finally, Kara complains that VanCuick “open[ed] the door” to
detrimental information about Caleb and his CHIPS case. The testimony about
Caleb was addressed twice in sidebars. On the first day of trial, during the redirect
examination of a social worker, Attorney VanCuick objected when the questions
turned to the services in place for Caleb and sought a sidebar. VanCuick
expressed concern that neither she—nor the trial court—could “un-ring the bell”
that Kara had another child for which she was already receiving services from the
County.

¶36 The trial court issued a ruling that allowed the County to raise issues
regarding Kara’s drug and alcohol history and the services provided to her prior to
Josh’s birth, but it could not discuss Caleb and his CHIPS case in order to avoid
“the inflammatory things ... about the ... different child who’s not relevant to his
proceeding.”

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No. 2024AP1101

¶37 The next day, Attorney VanCuick “opened the door” to testimony
about Caleb when she asked follow up questions to a social worker. There
followed a lengthy and heated discussion between all counsel and the trial court
about whether the door had in fact been “opened” with respect to Caleb, whether
Kara’s prior drug history was relevant, and whether VanCuick had done enough
discovery. Even after the long dialogue and a comment that VanCuick had opened
the door to all testimony about Caleb, the court reined all counsel in and limited
what could be said about Caleb (nothing) and Kara’s prior drug history (anything,
with the caveats that drug overuse is not necessarily an “overdose”).

¶38 Regardless of VanCuick’s explanation—that she was only following
up on questions the County had raised about services for Caleb—Kara now alleges
that VanCuick was not only not diligent in her trial preparation, but she
negligently raised issues that damaged Kara during the trial. This court has
already addressed the question of trial preparation.

¶39 To put the allegations about Caleb into perspective, it is important to
note that this was not a standard termination of parental rights case; the parent was
already receiving services and under court orders with respect to the older child.
This fact cut both ways for the County and Kara. First, the County’s hands were
tied in some respects by not being permitted (for a fear of prejudice) to delve into
why Kara was under services before Josh was born while still needing to explain
why the County was involved in Kara’s life. But, on the other hand, VanCuick
aptly noted that with respect to Josh it was not relevant if Kara had met conditions
for return regarding Caleb. The trial court had to dance on the top of a pin by
weighing how to get appropriate information to the jury to explain why Kara was

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No. 2024AP1101

already under County supervision while not painting her as previously labeled an
unfit parent.

¶40 VanCuick contended that the County had already raised the
circumstances surrounding Caleb’s case and Kara’s past drug history. That type
of history predating Josh’s birth was relevant and admissible. See La Crosse
Cnty. Dep’t of Hum. Servs. v. Tara P., 2002 WI App 84, ¶13, 252 Wis. 2d 179,
643 N.W.2d 194 (stating that evidence of a parent’s prior conduct “may be
relevant to predicting a parent’s chances of complying with conditions [of return]
in the future”). Moreover, “events predating dispositional orders may also be
relevant to another issue at termination proceedings: whether a county department
of social services made ‘reasonable’ efforts to provide services ordered by a
court.” Id., ¶14 n.4. Thus, the trial court here had to balance allowing admissible
evidence of Kara’s past struggles with drugs while avoiding the specter of a prior
“unfit parent” label. VanCuick, too, had to be able to distinguish prior history
from what Kara had successfully accomplished with respect to Josh and his
conditions for return.

¶41 This court concludes that the trial performance of VanCuick did not
fall below the bar for effective assistance of counsel. “A [party] does not show the
element of deficient performance ‘simply by demonstrating that [her] counsel was
imperfect or less than ideal.’” Burton, 349 Wis. 2d 1, ¶48 (quoting Balliette, 336
Wis. 2d 358, ¶22). Nor does “effective” equate to successful. “A court must be
vigilant against the skewed perspective that may result from hindsight, and it may
not second-guess counsel’s performance solely because the defense proved
unsuccessful.” Balliette, 336 Wis. 2d 358, ¶25.

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No. 2024AP1101

II. There was no prejudice to Kara.

¶42 Despite not making a thorough or detailed argument during the
Machner hearing that Kara was prejudiced by VanCuick’s alleged deficient
performance, Kara now asserts that the “cumulative effect of Attorney VanCuick’s
errors was prejudicial.” Again, she contends that a “best interests” invocation was
severely prejudicial and the news another child was removed from her care would
lead a jury to believe Josh should be removed “regardless of the sufficiency of the
evidence.” Kara also argues—in effect—that because she struggles with
depression and she had met some of the conditions for return, it just wasn’t her
fault she could not meet all of them or that the County simply made inadequate
efforts to provide assistance.

¶43 Kara’s last argument is simply an attempt to persuade this court to
invade the province of the jury and find facts regarding the grounds for
termination. The court declines that invitation. The jury heard the evidence and
was instructed multiple times that its verdict was to be based “solely upon the
evidence,” that it was not to consider the ultimate permanent placement of Josh,
and that statements by attorneys are not evidence.

¶44 Not only was the jury the final arbiter of the facts presented via
admissible evidence, it was also permitted to rely upon observations of the parties
in the courtroom. Through a witness’s direct examination, the County introduced
evidence that overuse of Xanax can lead to “nodding off.” Then, in its closing, the
County suggested that Kara was doing precisely that during the trial. The trial

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No. 2024AP1101

court made the same observation at the best-interest hearing.11 There was nothing
VanCuick could have done to counter this fact.

¶45 Kara’s argument that VanCuick’s failure to object to the “best
interests” evidence was prejudicial is remarkably similar to an argument rejected
by the court in Scott S., 230 Wis. 2d at 469. There, the court found that the
evidence that the parent failed to satisfy the conditions of return was
overwhelming. Id. Likewise, in this case, there is no question that Kara did not
meet her conditions of return over the two-plus years that Josh was in foster care.
The Scott S. court “reject[ed] the contention that the GAL’s comments convinced
the jury to find the existence of grounds for the termination of parental rights when
they otherwise would not have.” Id. The same applies here.

¶46 Given the circumstances in this case, the overwhelming evidence
presented by the County, and the jury instruction admonitions, this court
concludes Kara has failed to meet the high bar to establish she was prejudiced by
the actions—or inactions—of VanCuick. There is no reasonable probability that
the jury would not have found both grounds for terminating Kara’s parental rights
had VanCuick raised more objections.

11
The trial court stated:

I can tell you that even at the trial I even though the mother
testified that it wasn’t the case, everybody I would say in the
courtroom observed it and I did.

There was one morning where she just couldn’t even stay
awake and she was head bobbing and should be her -- her head
would go down and then would pop up. I don’t know what that
was all about, but even for trial on a really important issue she
couldn’t remain focused and awake.

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No. 2024AP1101

CONCLUSION

¶47 “As Strickland reminds us, there is a ‘wide range of professionally
competent assistance,’ and the bar is not very high.” State v. Westmoreland, 2008
WI App 15, ¶21, 307 Wis. 2d 429, 744 N.W.2d 919 (2007) (citation omitted); see
also Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence
Darrow to survive an ineffectiveness contention). No one—not even VanCuick—
contends that she was perfect. But that does not constitute a failure to provide
professionally competent assistance to Kara. Based upon the facts in this matter,
this court concludes that Kara has failed to establish that VanCuick provided
deficient, ineffective assistance of counsel or that Kara suffered any prejudice.
The trial court’s conclusions are upheld.

By the Court.—Order affirmed.

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

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