Marathon County v. S. S.

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.
May 8, 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. 2024AP1866 Cir. Ct. No. 2022TP19

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO Z. A.-S.,
A PERSON UNDER THE AGE OF 18:

MARATHON COUNTY,

PETITIONER-RESPONDENT,

V.

S. S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Marathon County:
RICK T. CVEYKUS, Judge. Affirmed.
No. 2024AP1866

¶1 STARK, P.J.1 Sean2 appeals orders of the circuit court terminating
his parental rights to his daughter, Zoey, and denying his motion for postdisposition
relief. Sean argues that he was denied effective assistance of counsel in four
respects during the grounds phase of the termination of parental rights (TPR)
process and that the individual and cumulative effects of counsel’s ineffective
assistance warrant a new trial.

¶2 We conclude that Sean’s trial counsel did not perform deficiently in
the first two respects argued by Sean—i.e., by failing to introduce evidence that
Sean contends shows that Marathon County irreparably damaged his relationship
with his daughter and by eliciting what Sean asserts was harmful testimony
regarding supervision rules imposed due to his conviction for child sex crimes. We
further conclude that Sean has failed to establish that he was prejudiced by his trial
counsel’s remaining alleged deficiencies. Accordingly, we affirm the circuit court’s
orders.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.
2
For ease of reading, we refer to the appellant, the child, and the associated family
members in this confidential matter using pseudonyms, rather than their initials.

Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be taken
in an order that ensures that a decision is issued within 30 days after the filing of the appellant’s
reply.” RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a delay. It is
therefore necessary for this court to sua sponte extend the deadline for a decision in this case. See
WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 694, 530 N.W.2d
34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this decision is issued.

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BACKGROUND

¶3 In 2017, Laura gave birth to Zoey.3 Laura and Sean were separated
and agreed to share equal physical placement of Zoey, and at a point not reflected
in the record, Sean was adjudicated Zoey’s father. In December 2018, the County
became involved with Zoey due to reports that Laura was involved in prostitution
and trafficking drugs. The County caseworker encouraged Sean on multiple
occasions to seek a family court order providing him with additional placement or
custody of Zoey, but he failed to follow through with those recommendations.

¶4 In April 2019, Zoey was removed from Laura’s care because an
individual who was staying with Laura overdosed on illegal substances while that
individual was caring for Zoey. Sean was unable to take custody of Zoey at that
time because he was being held on a cash bond in the Oneida County jail after being
charged with using a computer to facilitate a child sex crime, attempted
second-degree sexual assault of a child, child enticement, and possessing/exposing
harmful material to a child.4

3
Laura’s parental rights are not at issue on this appeal. We discuss Laura only to the
extent necessary to analyze arguments pertaining to Sean’s parental rights.
4
Sean entered a no-contest plea to these charges in 2019. We take judicial notice of the
CCAP records detailing Sean’s sentencing for these charges. See Kirk v. Credit Acceptance Corp.,
2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522. He was placed on a deferred
prosecution agreement on the charge of using a computer to facilitate a child sex crime, subject to
certain conditions. On the charges of attempted second-degree sexual assault of a child and child
enticement, Sean received concurrent sentences of two years’ initial confinement followed by seven
and one-half years’ extended supervision, which also subjected him to certain conditions. Sean
received a withheld sentence and was ordered to serve nine months’ probation on the
possessing/exposing harmful material to a child count. He was released to extended supervision in
April 2021.

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No. 2024AP1866

¶5 In July 2019, Zoey was adjudged to be a child in need of protection
or services (CHIPS) due to neglect, pursuant to WIS. STAT. § 48.13(10). In June
2022, the County filed a petition to terminate both Sean’s and Laura’s parental rights
to Zoey, alleging that Zoey was a child in continuing need of protection or services
pursuant to WIS. STAT. § 48.415(2)(a)1 (continuing CHIPS). In May 2023, the
County amended its TPR petition to include the ground of failure to assume parental
responsibility under § 48.415(6). Sean contested the County’s TPR petition and
demanded a jury trial for the grounds phase of the TPR process.5

¶6 Sean filed a motion in limine, requesting, among other things, that the
circuit court “determine before trial the existence of any criminal convictions of
record against any witness and … consider the admissibility of those convictions
prior to trial.” At a pretrial conference, the court ruled that the County could
“address the fact that [Sean] was convicted, … what his sentence was, any time
[Sean] has been away from the child based upon a prison sentence, … [and]
conditions of probation that may make it … more difficult for [Sean] to create a
relationship [with Zoey] in the future.” However, the court further ordered that the
jury would not be told that Sean was a sex offender and that the County could “not
address specifically what the crime was” because the court found that information
was not relevant and would be “incredibly prejudicial.”

¶7 Prior to the beginning of trial, Sean stipulated that the first element of
the ground of continuing CHIPS—that the “child has been adjudged to be … in need

5
A contested proceeding for the termination of parental rights involves a two-step
procedure. Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d
402. The first step is a factfinding hearing, in which a jury or circuit court determines “whether
any grounds for the termination of parental rights have been” proved. Id., ¶26; WIS. STAT.
§ 48.424(3). The termination proceedings then move to the second step, a dispositional hearing, at
which the circuit court must consider the best interest of the child. WIS. STAT. § 48.426(2).

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No. 2024AP1866

of protection or services and placed, or continued in a placement, outside his or her
home pursuant” to court orders containing a warning of possible grounds for a
TPR—had been met. See WIS. STAT. § 48.415(2)(a)1. He further waived his right
to a jury trial as to that element. After conducting a colloquy, the circuit court
accepted Sean’s stipulation and waiver. The court also ordered that witnesses be
sequestered.

¶8 At trial, the parties presented the testimony of various witnesses, and
further facts regarding their testimony are discussed below. Prior to resting its
case-in-chief, the County decided not to call Zoey’s foster mother to testify, and it
released the foster mother from her subpoena. The foster mother, who had
previously been sequestered, then sat in the courtroom during the rest of the trial.

¶9 At the close of evidence, the jury found that both grounds existed for
the termination of Sean’s parental rights. Regarding the continuing CHIPS ground,
two of the twelve jurors dissented as to the second element: that the County made
reasonable efforts to provide Sean with the services ordered by the court.6
Following a dispositional hearing, the court concluded that it was in Zoey’s best
interest to terminate Sean’s parental rights and it entered a TPR order.

¶10 Sean filed a motion for postdisposition relief, seeking to vacate the
circuit court’s TPR order and to obtain a new factfinding hearing. Sean argued that
he was denied effective assistance of counsel at the factfinding hearing. After a
postdisposition hearing, the circuit court found that Sean had failed to satisfy either
prong of the test for ineffective assistance of counsel. See Strickland, 466 U.S. at
687. Sean now appeals. Additional facts will be provided below.

6
See WIS. STAT. § 805.09(2).

5
No. 2024AP1866

DISCUSSION

¶11 On appeal, Sean again argues that he was denied effective assistance
of counsel during the grounds phase of the TPR proceedings due to several errors
by his trial counsel. Specifically, Sean argues that his trial counsel was ineffective
in the following manner: (1) failing to introduce evidence that the County
“irreparably damaged [his] relationship” with Zoey, (2) eliciting harmful testimony
regarding his rules of supervision imposed due to his convictions for child sex
crimes, (3) failing to impeach his social worker’s testimony regarding both negative
and positive observations she made during Zoey’s visits with Sean, and
(4) “repeatedly” failing to object to “improper evidence.” Sean also argues that the
cumulative effect of all these deficiencies warrants a new factfinding hearing.

¶12 As a general matter, a parent in a TPR proceeding has a statutory right
to the effective assistance of counsel. Oneida Cnty. DSS v. Nicole W., 2007 WI 30,
¶33, 299 Wis. 2d 637, 728 N.W.2d 652. The test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), is the correct standard for evaluating a claim of
ineffective assistance of counsel in the context of a TPR proceeding. Nicole W.,
299 Wis. 2d 637, ¶33. Under that test, to succeed on his ineffective assistance
claims, Sean must show both that his trial counsel’s performance was deficient and
that the deficient performance prejudiced him. See id.

¶13 In analyzing whether counsel’s performance was deficient, we
compare his or her performance to the “wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. “Only if his [or her] conduct falls outside
that objectively reasonable range will we conclude that counsel performed
deficiently. ‘The question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated from

6
No. 2024AP1866

best practices or most common custom.’” State v. Pico, 2018 WI 66, ¶19, 382
Wis. 2d 273, 914 N.W.2d 95 (citation omitted). We strongly presume that counsel’s
assistance fell within that range. Id. Further, “we do not review the reasonableness
of trial counsel’s decisions with ‘the benefit of hindsight.’” State v. Mull, 2023 WI
26, ¶35, 406 Wis. 2d 491, 987 N.W.2d 707.

¶14 To show prejudice, Sean must establish “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” See id., ¶37 (citation omitted). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ A lack of
confidence arises when ‘counsel’s errors were so serious as to deprive the [parent]
of a fair trial, a trial whose result is reliable.’” See Pico, 382 Wis. 2d 273, ¶20
(citations omitted). We need not address both prongs of the Strickland test if a
parent fails to make a sufficient showing on one of them. See id.

¶15 An ineffective assistance of counsel claim presents a mixed question
of law and fact. Id., ¶13. “We will not reverse the circuit court’s findings of fact
unless they are clearly erroneous. ‘Findings of fact include the circumstances of the
case and the counsel’s conduct and strategy.’ We independently review, as a matter
of law, whether those facts demonstrate ineffective assistance of counsel.” Id.
(citations omitted).

I. Trial counsel did not perform deficiently by failing to introduce evidence
that the County damaged Sean’s relationship with Zoey or by eliciting
testimony regarding Sean’s rules of supervision.

¶16 On appeal, Sean first argues that his “[t]rial counsel could and should
have presented evidence that the County was responsible for significantly damaging
[Zoey’s] and [Sean’s] relationship by ending in-person visits.” In May 2022, the
County shortened visits between Zoey and Sean from two and one-half hours to one

7
No. 2024AP1866

hour. In June 2022, the County filed the TPR petition, and on June 28, 2022, the
County filed a motion for a temporary injunction prohibiting contact and visitation
between Zoey and Sean. The circuit court granted the temporary injunction and
prohibited contact between Zoey and Sean, pending a hearing. However, that
hearing was not held until November 28, 2022—153 days later. At that hearing, the
circuit court denied the injunction, stating that its

position here is [the court] will not grant such an injunction
unless [it] can hear some testimony that shows not only is
[Zoey] having a hard time with the visitation, but there’s
something [Sean] is doing that is inappropriate and causing
such behaviors. [The court] heard none of that testimony
today.

¶17 Sean’s counsel did not make any mention of the temporary injunction
or its eventual denial during the jury trial. In his postdisposition motion, Sean noted
that he never had another visit with Zoey after the motion for an injunction was
filed, and he argued that it was “likely” that had this evidence regarding the
County’s efforts to prevent reunification been introduced, it would have convinced
at least one additional juror that the County did not make reasonable efforts. Sean
contended that this omission was particularly important because he claimed that his
visits with Zoey were going well prior to the injunction. Sean further argued this
evidence was “also relevant to the failure to assume [parental responsibility] ground,
as over a year-and-a-half of the lack of in-person visits was based on the County’s
actions, not [Sean’s].”

¶18 At the postdisposition hearing, Sean’s trial counsel explained that he
did not present evidence regarding the injunction because “the foster mother had a
calendar which documented a variety of things, and I didn’t want that coming in.
And it would have required then attacking her, and that would not have looked good
in front of the jury. It would have blown up.”

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No. 2024AP1866

¶19 The calendar that trial counsel referenced was a document in which
the foster mother kept a record “of any concerning behaviors, any contacts with
either parent, and just kind of updates on things about [Zoey]” throughout the
entirety of Zoey’s placement with her. In creating this record, the foster mother
noted that, on the days immediately following Zoey’s visitations with Sean, there
was a pattern of Zoey having “sleep disturbances” and exhibiting “a lot of negative
behaviors” that were unusual for Zoey, including difficulty regulating her own
emotions and physical aggression. The foster mother also noted in the calendar that
the sleep disturbances and negative behaviors stopped after the temporary injunction
was implemented.

¶20 In denying the postdisposition motion, the circuit court agreed with
the County that Sean’s trial counsel had a “logical” and “strategic” reason for not
discussing the injunction during the trial. Specifically, the court found that
discussing the injunction

would have two possible detrimental impacts: One, it could
open the door to the reasons behind the request for the
termination of visits. And almost more importantly, it could
open the door to the information that [the court] had already
agreed to it and ordered it.

Hearing that a judge has already made the decision, even if
it was temporary, that [contact between] a child and the
parent should be terminated could have [had an]
insurmountable impact on [Sean’s] case.

¶21 On appeal, Sean notes that the circuit court lifted its sequestration
order as to the foster mother at the beginning of the third day of trial and allowed
her to observe the remainder of the trial. Without citing any authority, Sean
contends that because the sequestration order was lifted, the foster mother was no
longer available to be called as a witness. Sean argues that, at that point, his trial

9
No. 2024AP1866

counsel’s “strategic reason for not addressing the injunction had dissipated” and he
was free to establish that the County sought an injunction “without having to worry
about [the] foster mom’s testimony or cross-examining her.”

¶22 We conclude that trial counsel’s decision not to present evidence
regarding the temporary injunction prohibiting contact between Zoey and Sean was
an objectively reasonable trial strategy. Even if we assume, without deciding, that
Sean correctly argues that the foster mother could not testify after her sequestration
order was lifted by the circuit court, trial counsel reasonably decided not to present
evidence regarding the injunction as the County had another witness it could call in
rebuttal to testify regarding the harmful effects of Sean’s visits with Zoey.7
Consequently, we reject Sean’s argument that his trial counsel was deficient by
failing to use evidence regarding the injunction to show that the County irreparably
harmed his relationship with Zoey.

¶23 Specifically, as is shown by a “Notice of Trial Exhibit for a Remote
Witness,” the County could have called Jacki Streveler, a licensed professional
counselor, to testify in rebuttal as to her observations of Zoey during weeks when
Zoey had visits with Sean and weeks when they did not have visits. Streveler’s
therapy notes, which were filed with the circuit court, contain entries stating that
Zoey suffered from “[a]djustment [d]isorder [w]ith mixed disturbance of emotions

7
We note that neither Sean nor the County cite any authority analyzing the competing
rights of a foster parent to be heard at a TPR hearing under WIS. STAT. § 48.42(2g) and the right of
a person to request that a witness be excluded under WIS. STAT. § 906.15 so that the witness cannot
hear the other witnesses’ testimony. However, we need not address this issue, as we conclude that
Sean’s trial counsel made a reasonable strategic decision not to discuss the injunction regardless of
whether the foster mother was able to testify after viewing the remainder of the jury trial. See
Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (concluding that
we need not address all issues when the resolution of one of the issues is dispositive).

10
No. 2024AP1866

and conduct,” as evidenced by “tantrums and other behaviors occurring” following
visits with Sean.

¶24 Streveler’s therapy notes also recorded specific instances of Zoey’s
conduct in relation to her visits with Sean. One entry indicated that Zoey had a
phone call with Sean during the session and, while Zoey was on the phone, she “was
visibly tense, clenching [her] jaw and repeating the same words over and over
during the call resembling catatonia. Once the call was done [Zoey] appeared to be
calmer but had a more difficult time self[-]regulating than before the phone call
occurred.” Another entry indicated that the session took place immediately after
Zoey had an in-person visit with Sean for the first time in several weeks, and, during
that session, Zoey “showed much more dysregulated behaviors than [Streveler]
ha[d] ever observed” from her and Zoey did not calm down until the foster mother
joined the session.

¶25 This is exactly the type of evidence that Sean’s trial counsel sought to
avoid bringing to the attention of the jury by not introducing evidence regarding the
temporary injunction. It is true that counsel would not have had to “attack” the
foster mother on cross-examination if the above evidence were introduced.
However, the above evidence would have been detrimental to Sean’s defense, as it
would have rebutted his claims that he had a substantial relationship with Zoey and
that the County interfered with or damaged that relationship. Further, as the circuit
court aptly noted, introducing evidence regarding the injunction would have
necessarily informed the jury that a court, at some point, felt that it was necessary
to prevent contact between Zoey and Sean. Accordingly, we conclude that trial
counsel made an objectively reasonable strategic decision not to introduce evidence
regarding the injunction at trial, and therefore trial counsel did not perform
deficiently in that regard.

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No. 2024AP1866

¶26 Sean also argues on appeal that his trial counsel performed deficiently
by eliciting harmful testimony regarding his rules of probation and extended
supervision. Specifically, Sean is referring to counsel’s cross-examination of
Lindsey Flynn, Sean’s probation and parole agent, during which counsel elicited
testimony that Sean’s supervision rules required that his visits with Zoey be
chaperoned and that Flynn left the decision of whether to allow unsupervised
contact up to his treatment provider.

¶27 Sean asserts that this evidence prejudiced him because the jury could
conclude from the elicited testimony that he was a sex offender. He also argues that
this evidence permitted the jury to infer that regardless of what services the County
provided, he could not move past supervised visits due to his probation rules and
thus he could never comply with the CHIPS conditions. Sean also contends that
this evidence essentially relieved the County of the need to prove that it made
reasonable efforts to facilitate Zoey’s reunification with him.

¶28 At the postdisposition hearing, trial counsel testified that he asked
Flynn the above questions because Sean asked him to do so. Counsel stated that he
did not discuss with Sean the possible consequences of this line of questioning
because they “were in the middle of trial” and it was “difficult to do that.”

¶29 In response, Sean asked trial counsel if he recalled Sean writing him
a note stating, “[T]he jury just heard I would need a chaperone which told them
basically what my charges are.” Trial counsel responded that he did not specifically
remember Sean writing that note, but Sean “may have” done so. Counsel noted that
both he and Sean did not want the jury to “glean that [Sean] was a sex offender,”
but that he pursued that line of questioning because Sean “felt he was getting the
run around” from probation officials and Sean was “pushing” him to pursue that

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No. 2024AP1866

line of questioning at trial. Counsel further noted that he and Sean had discussed
this issue “a couple times” before trial.

¶30 In denying the postdisposition motion, the circuit court found trial
counsel’s testimony credible regarding his rationale for pursuing the line of
questioning regarding Sean’s rules of supervision. The court found that Sean
“insisted that these questions be asked,” and it rejected the notion that “there was
no possible strategic reason” for this line of questioning because Sean “seemed to
be convinced that the social worker and his probation agent were working in tandem
or were, in connection, plotting against him to deny him his ability to be with his
child.” Finally, the court rejected Sean’s argument that the testimony about his rules
of supervision revealed the nature of his underlying charges, as “[t]here are all kinds
of reasons this [c]ourt enters no[-]contact provisions in several different cases.”

¶31 On appeal, Sean again argues that “[t]rial counsel eliciting testimony
regarding [Sean’s] rules of supervision was unreasonable and extremely
detrimental.” He argues that the circuit court’s finding that Sean asked his trial
counsel to discuss his probation rules was clearly erroneous because the court
“failed to consider the note” that he wrote complaining that Flynn’s testimony
revealed the nature of his criminal charges. Sean further contends that pursuing this
line of questioning was unreasonable and that it prejudiced him by causing the jury
to infer that he had harmed children before and by absolving the County of the need
to “provide reasonable efforts as it related to the continuing CHIPS ground.”

¶32 The circuit court’s finding—that Sean asked his counsel to discuss his
rules of probation—was not clearly erroneous. The circuit court is “the sole arbiter
of credibility issues and will be sustained if facts in the record support the court’s
conclusions,” State v. Sloan, 2007 WI App 146, ¶21, 303 Wis. 2d 438, 736 N.W.2d

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No. 2024AP1866

189, and the circuit court found Sean’s trial counsel to be credible regarding this
issue. Further, we agree with the court that trial counsel’s questions did not reveal
that Sean is a child sex offender and that these questions supported Sean’s theory of
defense at trial—that the County was working with probation to interfere with, and
ultimately deny, Sean’s ability to reunify with Zoey.

¶33 The circuit court did not acknowledge Sean’s note asserting that trial
counsel’s questions informed the jury that Sean was a child sex offender. However,
this omission does not change our analysis. Sean characterizes his note as
“uncontroverted,” but he fails to acknowledge that testimony is evidence. Sean’s
trial counsel testified that Sean wanted him to ask Flynn the questions and explained
the reasons for doing so. The record supports the circuit court’s credibility finding
regarding trial counsel’s testimony on that point. Accordingly, we conclude that
Sean’s trial counsel did not perform deficiently by eliciting testimony regarding
Sean’s rules of supervision.

II. Sean was not prejudiced by the remaining alleged deficiencies.

¶34 Sean additionally argues that his trial attorney was ineffective by
failing to impeach Bailey Champagne, a former family support specialist, regarding
both negative and positive observations she made during Zoey’s visits with Sean
and by failing, in several respects, to object to hearsay evidence or evidence that
lacked a proper foundation. Our conclusions as to both of these claims are the
same—due to the overwhelming evidence that Sean failed to assume parental rights
for Zoey, Sean fails to show that he was prejudiced by either of these alleged errors,
individually or cumulatively.

¶35 At trial, Champagne testified that she worked with Sean from
approximately summer 2021 until November 2022 and that she supervised his

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No. 2024AP1866

visitations with Zoey.8 Champagne testified that at the end of the visits, Sean would
tell Zoey that he loved her and missed her and that Zoey would “repeatedly indicate”
that she also loved and missed him, but Champagne also stated that she did not recall
if Zoey expressed that she wanted to live with Sean. Champagne also testified that
she did not see Sean demonstrating what he learned in his parenting classes during
his visits with Zoey.

¶36 In his postdisposition motion, Sean argued that “[t]rial counsel failed
to impeach … Champagne with her notes or use the notes in a way that would have
been beneficial to [Sean’s] theory of the case.” As an example, he noted that within
Champagne’s notes was a summary of a visit between Zoey and Sean, in which
Champagne noted that, at the end of a visit, Zoey began to cry and stated that she
wanted to “go home with daddy [Sean].” According to Sean, there was no possible
strategic reason for failing to introduce evidence that contradicted Champagne’s
negative testimony by using her notes to cross-examine her, and he asserts that
evidence may have changed the jury’s mind on whether he assumed parental
responsibility. Sean also argued that his trial counsel “failed to contextualize and
correct generalized statements that painted [Sean] in a negative light.”

¶37 Sean raises the same arguments on appeal. He further argues that trial
counsel’s failure to effectively impeach Champagne prejudiced him by “depriv[ing]
the jury of the only statements in the record directly from [Zoey].” He contends that
this evidence was relevant to establishing that he had a substantial parental
relationship with Zoey.

8
Champagne initially began testifying remotely via audiovisual means. Due to poor
reception, Champagne had to turn off her video camera and testified solely via audio. Sean does
not raise any arguments regarding Champagne testifying via audiovisual means or solely via audio.

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No. 2024AP1866

¶38 Regardless of whether trial counsel performed deficiently by failing
to effectively impeach Champagne’s testimony, we conclude that Sean has failed to
prove that he was prejudiced by counsel’s performance in this regard. Specifically,
we conclude that, in light of the overwhelming uncontested evidence that Sean
failed to assume parental responsibility for Zoey, Sean has failed to establish a
reasonable probability that the result of the proceeding would have been different
but for trial counsel’s alleged unprofessional errors. See Pico, 382 Wis. 2d 273,
¶20.

¶39 WISCONSIN STAT. § 48.415(6)(a) provides that failure to assume
parental responsibility is “established by proving that the parent … ha[s] not had a
substantial parental relationship with the child.” Section 48.415(6)(b) explains:

“substantial parental relationship” means the acceptance and
exercise of significant responsibility for the daily
supervision, education, protection and care of the child. In
evaluating whether the person has had a substantial parental
relationship with the child, the court may consider such
factors, including, but not limited to, whether the person has
expressed concern for or interest in the support, care or
well-being of the child, whether the person has neglected or
refused to provide care or support for the child and whether,
with respect to a person who is or may be the father of the
child, the person has expressed concern for or interest in the
support, care or well-being of the mother during her
pregnancy.

¶40 A number of witnesses, including Sean himself, provided
uncontroverted testimony that Sean failed to assume parental responsibility for
Zoey. Champagne testified:

When [we] initially started in[-]person visits [Zoey] was
very excited to see [Sean]. She would run up and hug him.
She would want to hold his hand walking through the
parking lot. But then as visits progressed [Zoey] started kind
of clinging more to me. She would want to hold my hands

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No. 2024AP1866

in the parking lot, but she would not redirect … back to
Sean.

Champagne described the bond between Zoey and Sean as being “along the lines
of, like, an uncle,” because “[w]henever [Zoey] referred to her family it was her
foster family, and her brothers and sister were her foster family as well.” However,
Champagne also noted that “early on” in the visits, Zoey would state, “That’s my
daddy,” in reference to Sean. Champagne again described Zoey and Sean’s early
bond as being strong, but she noted that this bond weakened over time.

¶41 Sean testified that Zoey had been removed from his care in 2019 while
he was incarcerated, and the evidence showed that Sean remained incarcerated until
April 2021. Sean then testified about the conditions that he was ordered to meet to
have Zoey returned to his care, including that he must not interfere with Zoey’s
placement, that he cooperate with probation and parole personnel, that he refrain
from any activities that would result in his incarceration, and that he complete
counseling. Sean explained to the jury that he did not complete counseling because
he was reincarcerated in December 2023.

¶42 Doctor Susan Rood, a psychotherapist, testified that she worked with
Sean via group therapy for approximately one year. Over that year Sean was unable
to demonstrate his ability to take responsibility for his actions. Rood described him
as being “very resentful” and “reluctant to participate.” Rood opined that Sean
“struggles to fully understand the impact and repercussions of his actions, and
therefore to fully understand the impact of his behavior, and therefore to take
responsibility for it.”

¶43 Katie Folwarski, a child welfare support service supervisor, testified
that she encouraged Sean to take steps to get additional placement or custody of

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No. 2024AP1866

Zoey in 2018 due to Laura’s drug use, but Sean did not take any of those steps.
Craig Sankey, a former ongoing child protective services worker, testified that while
Sean was unable to attend medical or dental appointments for Zoey due to his
incarcerated status, there was nothing preventing Sean from contacting those
providers on his own. Kristine Halverson, a supervised visitation worker, testified
that she facilitated phone calls between Zoey and Sean. She described those phone
calls as being “disruptive” because “[Zoey] didn’t want to talk to him on the phone.”
Abbigayle Quaintance, a family support specialist, testified that Sean consistently
attended phone visits at first, but his attendance became inconsistent over time.

¶44 The above evidence overwhelmingly shows that Sean did not have a
substantial parental relationship with Zoey. Sean’s trial counsel’s failure to impeach
Champagne regarding the negative and positive observations she made during a few
visits between Zoey and Sean does not undermine our confidence in the outcome of
the trial. See Pico, 382 Wis. 2d 273, ¶20.

¶45 Sean additionally argues that he was prejudiced by his trial counsel’s
failure to object to hearsay evidence and evidence that was admitted without a
proper foundation. Specifically, Flynn testified that Sean was one of her clients, but
was removed from her caseload in approximately December 2023 due to him
reportedly cutting off his GPS monitor and subsequently making threats against her.
Flynn also testified that prior to Sean making those threats, he was taken into
custody in December 2023 for “stalking and harassing behaviors of other clientele
on supervision along with his ex-girlfriend.” Flynn then continued to discuss Sean’s
probation violations.

¶46 Further, Shannon Drews, a former ongoing social worker, testified
that she was involved in permanency planning for Zoey and discussed Sean’s visits

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No. 2024AP1866

with Zoey. According to Sean, however, Drews’ testimony was unclear as to
whether she directly observed the visits or was merely summarizing information
from Champagne and Streveler.

¶47 In his postdisposition motion, Sean argued that Flynn’s testimony
regarding the alleged probation violations “was almost entirely hearsay or without
proper foundation.” He noted that his trial counsel initially objected on the basis of
foundation and hearsay to Flynn’s testimony regarding GPS monitoring, but he
explained that counsel subsequently withdrew the objection because it was a
“regularly conducted business activity.” Sean contended that trial counsel should
have objected to Flynn’s testimony regarding the GPS monitor, Sean’s history of
stalking and harassment, and Sean’s threats regarding Flynn. He argued that
Flynn’s testimony prejudiced him on both alleged TPR grounds. Similarly, Sean
argued in his postdisposition motion that Drews “testified about visits she was not
part of and to the alleged probation violations—all of which was hearsay and at
times without foundation.” Sean noted that his trial counsel did not raise any
hearsay or foundational objections to Drews’ testimony.

¶48 In its oral ruling on the postdisposition motion, the circuit court noted
that Sean’s hearsay argument was “possibly the strongest argument” he raised in his
motion. However, the court found that the hearsay “did not have any real prejudice
to [Sean] and that none of these alleged deficiencies, including the hearsay
objections, would have changed the outcome of the trial” because the uncontested
evidence “showed that [Sean] did not provide [Zoey] with shelter, was not ensuring
she received medical care, did not help with school work, did not help to deliver her
to school, did not engage in school activities, did not engage in day-to-day
supervision, education, or protection and care of [Zoey].”

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No. 2024AP1866

¶49 On appeal, Sean again argues that Flynn’s testimony regarding his
probation violations was inadmissible hearsay, that his trial counsel’s hearsay
objections were not overruled because counsel withdrew one and the court did not
rule on the other, and that Flynn’s testimony prejudiced him as to both alleged TPR
grounds. Sean also argues that Drews’ testimony, regarding his visits with Zoey
and his later threat to take Zoey from her placement, was inadmissible hearsay and
prejudicial as to both alleged TPR grounds.

¶50 We again conclude that in light of the overwhelming uncontested
evidence, Sean has failed to establish a reasonable probability that the result of the
proceeding would have been different but for trial counsel’s alleged unprofessional
errors. See Pico, 382 Wis. 2d 273, ¶20. In addition to the above evidence from
Champagne, Sean, Flynn, Dr. Rood, Folwarski, Sankey, Halverson, and
Quaintance, see supra ¶¶40-43, we find the following evidence to be particularly
pertinent to the lack of prejudice to Sean regardless of counsel’s failure to object on
hearsay and foundation grounds.

¶51 At trial, Sean explained that he was reincarcerated due to a “mental
breakdown issue” that caused him to “blackout.” Sean said that he did not recall
what happened when he blacked out, but he knew that the allegations against him
were “[f]leeing and eluding, and possession of a knife.” Sean testified that he did
not recall removing his GPS monitor and did not recall making any violent threats
toward Flynn. Sean did however, agree that removing his GPS monitor and
threatening his probation agent would be in violation of his probation conditions.
Further, Sean acknowledged that his probation was subsequently revoked for
violation of his conditions of supervision.

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No. 2024AP1866

¶52 Dr. Rood noted that Sean never reported having blackouts. Rood
stated that she was familiar with blackouts caused by post-traumatic stress disorder
(PTSD) and opined, “As far as individuals blacking out and remaining conscious as
a condition of [PTSD], that is very, very unusual. Those types of blackouts are
associated with a different condition.”

¶53 Finally, Drews testified that Sean had never “been able to show the
ability to maintain a safe and suitable residence” for Zoey “long term.” Drews also
stated that Sean had demonstrated the ability to manage a household for only “a
short period” and that he was currently unable to do that. Drews stated that the last
time Sean contacted Zoey was prior to his incarceration and that he had not written
letters to Zoey since his incarceration, despite offering Sean envelopes so that he
could send letters.

¶54 In light of the above uncontested and overwhelming evidence that
Sean failed to assume parental responsibility, we are not persuaded that “but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See Pico, 382 Wis. 2d 273, ¶20 (citation omitted). The evidence at trial
showed that Sean failed to assume parental responsibility for Zoey due to his lack
of consistency; the diminishment of their relationship over time, in conjunction with
Sean’s continued criminal activity; Sean’s failure to progress with the programming
provided to him; and his failure to accept responsibility for his criminal actions.

¶55 We also reject Sean’s cumulative prejudice argument. We have
already concluded that Sean’s trial counsel did not perform deficiently in two
respects and that Sean was not prejudiced by counsel’s other claimed deficiencies.
On the record before us, there is no basis to conclude that the cumulative effect of

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No. 2024AP1866

Sean’s ineffective assistance claims warrants a new trial. Zero plus zero equals
zero. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976).

By the Court.—Orders affirmed.

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

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