State v. A. M.

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.
January 3, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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 Nos.
2019AP475 Cir. Ct. Nos. 2017TP114
2017TP115
2019AP476
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

A.M.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.
Nos. 2019AP475
2019AP476

A.M.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Affirmed.

¶1 DONALD, J.1 A.M., pro se, appeals the orders terminating her
parental rights to her children, M.M. and V.A.-M. A.M. contends that she
received ineffective assistance of counsel and that the circuit court failed to
consider the appropriate factors in rendering its decision. We affirm.

BACKGROUND

¶2 On June 20, 2017, the State filed petitions to terminate A.M.’s
parental rights to two of her children, M.M. and V.A.-M. The petitions alleged
failure to assume parental responsibility and that the children were in continuing
need of protection or services (continuing CHIPS).

¶3 A.M. pled no contest to the ground of continuing CHIPS and the
failure to assume parental responsibility was dismissed. The circuit court
conducted a colloquy with A.M. to ascertain that her plea was knowing, voluntary,
and intelligent. The circuit court informed A.M. that by pleading no contest she
was “giving up [her] right to tell [her] side of the story … and/or tell [her] side of

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31 (2)(e) (2017-
18). All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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the story through other witnesses[.]” A.M. stated that she understood. The circuit
court also confirmed that A.M. discussed her plea decision with counsel, that
counsel answered all of A.M.’s questions, and that A.M. did not have any
outstanding questions or concerns. The circuit court accepted A.M.’s plea.

¶4 The circuit court then heard testimony from Lauren Zittel, A.M.’s
ongoing case manager. Zittel testified that while A.M. made progress on some of
the conditions for the children’s return, A.M. did not consistently maintain her
sobriety, control her mental health, put her children’s needs ahead of her own, or
keep a safe living environment for the children. Zittel testified that A.M. was
unable to maintain stable housing and that her mental health condition would lead
to aggressive and impulsive decision-making. The circuit court made the
necessary unfitness finding.

¶5 The matter proceeded to disposition where Zittel, the children’s
foster father, and A.M. testified. Zittel testified that the children were likely to be
adopted and that their foster family is an adoptive resource. Zittel stated that
while the children maintain a loving relationship with their mother, A.M. did not
demonstrate an ability to control her mental health, did not follow through with
therapy, and was unable to provide a safe living environment for the children.

¶6 S.S., the foster father for the children, testified that he and his wife
were an adoptive resource for the children. S.S. stated that the children
maintained contact with A.M. and were bonded with their mother and that he
would allow the children to maintain a relationship with A.M. so long as it
remained beneficial to the children. S.S. stated that the children were well
adjusted, thriving socially, and in a secure home.

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¶7 A.M. told the circuit court that she suffered from depression but was
seeking therapy. She also stated that she was working on obtaining permanent
housing.

¶8 The circuit court issued a written decision, finding termination of
A.M.’s parental rights to be in the best interests of the children. This appeal
follows.2

DISCUSSION

¶9 On appeal, as best as we can discern, A.M. contends that counsel
was ineffective for failing to raise “key factors” during the termination
proceedings. A.M. also appears to contend that the circuit court failed to consider
the appropriate factors when determining that termination was in the children’s
best interests.

Counsel did not render ineffective assistance.

¶10 Parents have the right to effective assistance of counsel in actions to
involuntarily terminate parental rights. See A.S. v. State, 168 Wis. 2d 995, 1004,
485 N.W.2d 52 (1992); WIS. STAT. § 48.23(2)(b). Ineffective assistance of
counsel claims in a termination of parental rights proceeding are analyzed using
the two-part test described in Strickland v. Washington, 466 U.S. 668, 687

2
A.M. filed a notice of intent to pursue postdisposition relief. Postdisposition counsel
filed a motion to withdraw on the basis that A.M. wished to proceed pro se. The circuit court
denied the motion and counsel filed a no-merit report. This court rejected the no-merit, stating
that A.M. could pursue an arguably meritorious challenge to the circuit court’s orders denying her
request to discharge counsel and to represent herself on appeal. A.M. then filed a motion for
reconsideration in the circuit court. The circuit court granted the motion, allowing
postdisposition counsel to withdraw and A.M. to proceed pro se.

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(1984). See Oneida Cty. DSS v. Nicole W., 2007 WI 30, ¶33, 299 Wis. 2d 637,
728 N.W.2d 652. To obtain relief based on ineffective assistance of counsel, A.M.
has the burden to prove both deficient performance and prejudice. See Strickland,
466 U.S. at 687. Performance is deficient if it falls below an objective standard of
reasonableness. Id. at 688. To show prejudice, A.M. must show a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceedings would have been different. See id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome” of the
proceeding. Id. If A.M.’s argument falls short with respect to either deficient
performance or prejudice, her claim of ineffective assistance fails. See State v.
Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854 (“A court need
not address both components of this inquiry if the defendant does not make a
sufficient showing on one.”).

¶11 “A claim for ineffective assistance of counsel is a mixed question of
fact and law.” State v. Wood, 2010 WI 17, ¶16, 323 Wis. 2d 321, 780 N.W.2d 63.
This court will sustain the circuit court’s findings of fact “unless they are clearly
erroneous.” See State v. Doss, 2008 WI 93, ¶23, 312 Wis. 2d 570, 754 N.W.2d
150. “Whether counsel’s performance was deficient and prejudicial to his or her
client’s defense is a question of law that we review de novo.” State v. Hunt, 2014
WI 102, ¶22, 360 Wis. 2d 576, 851 N.W.2d 434.

¶12 A.M. contends that counsel failed to bring “key factors” to the
circuit court’s attention. A.M. does not specify what exactly counsel should have
raised before the circuit court, but implies that counsel should have offered more
positive information about A.M.’s mental health. The record does not support
A.M.’s contention that counsel rendered ineffective assistance. The record
establishes that counsel explained each step of the termination proceedings to

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Nos. 2019AP475
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A.M. and that A.M. had opportunities to speak with the court directly and raise
any concerns. Moreover, at the disposition hearing, counsel cross-examined Zittel
and brought many positive factors to the circuit court’s attention. Through cross-
examination, counsel established that A.M. did meet some of the conditions for
the children’s return, that A.M. was consistent with her visits with the children,
and that the children were bonded with A.M. Counsel also questioned A.M.
directly, asking A.M. about her mental health and the steps A.M. was taking to
control her mental health issues. A.M. told the circuit court that she understood
the importance of controlling her mental health issues and that she was seeking
psychological help. A.M. does not specify what more she wished counsel to bring
to the circuit court’s attention. Accordingly, A.M. has not established that counsel
rendered ineffective assistance.

The circuit court considered the appropriate factors.

¶13 A.M. also argues that the circuit court “[did not] look at the broader
picture” and based its decision solely on what Zittel “had to say.” At its core,
A.M.’s argument is really a complaint about the weight and consideration the
circuit court gave to Zittel’s testimony. A.M. essentially asks that this court weigh
the evidence differently from the circuit court. However, the weight and
credibility of the evidence are solely for the circuit court to determine. See
Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶6, 351
Wis. 2d 439, 839 N.W.2d 893.

¶14 Here, the circuit court assessed the credibility of the witnesses, and,
considering the factors set forth in WIS. STAT. § 48.426, determined that
termination was in the children’s best interests. When assessing whether
termination is warranted, the circuit court is required to focus on what is in the

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child’s best interests. Id. In doing so, the circuit court should consider any
relevant evidence, but must consider the following six statutory factors:

(a) The likelihood of the child’s adoption after termination.

(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was
removed from the home.

(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.

(d) The wishes of the child.

(e) The duration of the separation of the parent from the
child.

(f) Whether the child will be able to enter into a more stable
and permanent family relationship as a result of the
termination, taking into account the conditions of the
child’s current placement, the likelihood of future
placements and the results of prior placements.

Sec. 48.426(3); Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶¶28-29, 255
Wis. 2d 170, 648 N.W.2d 402.

¶15 The circuit court is not required to afford greater weight to any
particular factor in WIS. STAT. § 48.426(3), and this court will defer to the circuit
court as to the weight it gives various factors and affirm so long as the circuit court
properly examined each factor. See State v. Margaret H., 2000 WI 42, ¶¶29, 35,
234 Wis. 2d 606, 610 N.W.2d 475. Here, the record plainly shows that the circuit
court took into consideration each of the factors in § 48.426(3).

¶16 The circuit court noted in its final decision that the children were
both adoptable and had been out of their parental home since 2016. The circuit
court noted that the children are “highly conflicted and confused children,
incapable of intelligently assessing whether they can safely return to their

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Nos. 2019AP475
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mother’s care,” but that they desire to maintain a relationship with their mother.
The circuit court placed special emphasis on the children’s relationship with A.M.,
as well as its concerns about A.M.’s ability to provide a safe and stable home for
the children. The circuit court noted that while the children love their mother
deeply, A.M. is unable to provide for the children’s physical, emotional, and
psychological needs. The circuit court also found that A.M.’s mental health
struggles present a safety risk to the children. We conclude that the circuit court
properly weighed the evidence and considered the necessary factors in
determining that termination of A.M.’s parental rights was in the best interests of
her children.

¶17 For the foregoing reasons, we affirm.

By the Court.—Orders affirmed.

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

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