Racine County HSD v. S.M.F.

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.
July 15, 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. 2019AP2346 Cir. Ct. Nos. 2018TP38
2018TP39
2019AP2347

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2019AP2346

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

RACINE COUNTY HUMAN SERVICES DEPARTMENT,

PETITIONER-RESPONDENT,

V.

S.M.F.,

RESPONDENT-APPELLANT.

NO. 2019AP2347

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

RACINE COUNTY HUMAN SERVICES DEPARTMENT,

PETITIONER-RESPONDENT,
Nos. 2019AP2346
2019AP2347

V.

S.M.F.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Affirmed.

¶1 GUNDRUM, J.1 S.M.F. appeals from orders of the circuit court
terminating her parental rights to M.J.S. and N.D.S. She claims her trial counsel
was ineffective because at the trial to determine whether grounds for termination
existed, counsel stipulated to the use of the post-2018 WIS JI—CIVIL 324,
Involuntary Termination Of Parental Rights: Continuing Need Of Protection Or
Services jury instruction and failed to call certain witnesses to defend S.M.F.
against the petition. She also contends the court’s denial of her request for a
mistrial following certain questioning of a witness by the State deprived her of a
full and fair jury trial and “it is entirely probable that the accumulation of error …
suggest that the real controversy has not been tried here.” For the following
reasons, we affirm.

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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Background

¶2 The State filed a petition to terminate S.M.F.’s parental rights to her
two children, M.J.S. and N.D.S., on the following bases: 1) the children continued
to be in need of protection and services (continuing CHIPS), pursuant to WIS.
STAT. § 48.415(2), and 2) S.M.F. failed to assume parental responsibility, pursuant
to § 48.415(6). After a trial on these two grounds for termination, the jury found
that the State had proven both grounds. The court thereafter determined that it
was in the best interests of the children that S.M.F’s parental rights be terminated.
S.M.F. subsequently filed a post-conviction motion claiming her counsel
performed ineffectively at her trial. The court denied the motion after an
evidentiary hearing. S.M.F. appeals.

Discussion

Ineffective Assistance

¶3 In order to prove ineffective assistance of counsel, S.M.F. bears the
burden to show both that counsel’s performance was deficient and that the
deficient performance prejudiced her. See A.S. v. State, 168 Wis. 2d 995, 1005,
485 N.W.2d 52 (1992); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). If she fails to prove either prong, we need not address whether the other
prong was satisfied. See Strickland, 466 U.S. at 700.

¶4 Whether a parent proves ineffective assistance of counsel is a mixed
question of fact and law. See State v. Pitsch, 124 Wis. 2d 628, 633–34, 369
N.W.2d 711 (1985). Factual determinations of the circuit court will be upheld
unless they are clearly erroneous. Id. at 634. Whether trial counsel’s performance

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was deficient and whether it prejudiced the parent are questions of law we review
de novo. See id.

¶5 To prove deficient performance, the parent must show that counsel’s
specific acts or omissions were “outside the wide range of professionally
competent assistance.” See Strickland, 466 U.S. at 690. There is a strong
presumption that a parent received adequate assistance and that counsel’s
decisions were justified in the exercise of reasonable professional judgment. See
State v. Domke, 2011 WI 95, ¶36, 337 Wis. 2d 268, 805 N.W.2d 364; State v.
Kimbrough, 2001 WI App 138, ¶¶31–35, 246 Wis. 2d 648, 630 N.W.2d 752.
Counsel’s performance is deficient only if the parent proves that counsel’s
challenged acts or omissions were objectively unreasonable under all the
circumstances of the case. See Kimbrough, 246 Wis. 2d 648, ¶35. Scrutiny of
trial counsel’s decisions, conduct and overall performance is highly deferential.
Pitsch, 124 Wis. 2d at 637. We will not find counsel to have performed
deficiently unless the law commanding a particular action or forbearance by
counsel is clear and settled. State v. Morales-Pedrosa, 2016 WI App 38, ¶16, 369
Wis. 2d 75, 879 N.W.2d 772; State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d
621 (Ct. App. 1994).

¶6 To prove prejudice, S.M.F. must show that the alleged errors of
counsel were “of such magnitude that there is a reasonable probability that, absent
the error, ‘the result of the proceeding would have been different.’” See State v.
Erickson, 227 Wis. 2d 758, 769, 596 N.W.2d 749 (1999) (quoting Strickland, 466
U.S. at 694). “It is not sufficient for the [parent] to show that his [or her]
counsel’s errors ‘had some conceivable effect on the outcome of the proceeding.’”

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Domke, 337 Wis. 2d 268, ¶54 (quoting State v. Carter, 2010 WI 40, ¶37, 324
Wis. 2d 640, 782 N.W.2d 695).

Jury Instruction and Failure to Call Witnesses

¶7 The jury found two grounds to terminate S.M.F.’s parental rights: 1)
continuing CHIPS and 2) failing to assume parental responsibility. To proceed to
the disposition phase of the termination of parental rights proceedings, the State
only needed to prove the existence of one of these grounds. See Steven V. v.
Kelley H., 2004 WI 47, ¶¶24–25, 271 Wis. 2d 1, 678 N.W.2d 856. Thus, in order
to prevail now on appeal, S.M.F. needs to show that her counsel performed
ineffectively with regard to both grounds. She has failed to do so.

¶8 S.M.F. spends much of her appellate briefing arguing that counsel
was ineffective with regard to the continuing CHIPS ground for termination
because counsel stipulated to the use of the post-2018 WIS JI—Civil 324,
Involuntary Termination Of Parental Rights: Continuing Need Of Protection Or
Services jury instruction instead of advocating for the use of the pre-2018
instruction.2 We need not even address that issue because S.M.F. fails to show
that counsel was ineffective with regard to the second ground for termination,
failing to assume parental responsibility. As to this ground, under which the jury
had to and did find that S.M.F had “not had a substantial parental relationship
with” M.J.S. and N.D.S., see WIS. STAT. § 48.415(6)(a), S.M.F. fails to develop
any argument that counsel performed deficiently or that she was prejudiced by
such performance.

2
Through 2017 Wisconsin Act 256, the legislature amended WIS. STAT. § 48.415(2) in
2018, which led to the modification of the related jury instruction.

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¶9 Related to this failure-to-assume ground, S.M.F. complains that
counsel failed to call S.M.F., S.M.F.’s therapist, and the children’s foster parent as
witnesses at trial. As to this “failure,” S.M.F. writes only:

S.M.F. did not testify at the fact-finding hearing, but she
did testify at the disposition hearing. That testimony
included that S.M.F. had been the sole caregiver for much
of the children’s lives. S.M.F. had been involved in
different therapy programs with the children, prior to their
removal, to address their developmental delays.

S.M.F. then states: “All of the information here is relevant to both grounds
alleged in the termination of parental rights petitions, but it was not presented to
the jury at the fact-finding.” The argument that counsel was ineffective with
regard to this ground is woefully undeveloped and thus we will not address this
issue. See Wisconsin Conference Bd. of Trs. of United Methodist Church, Inc.
v. Culver, 2001 WI 55, ¶38, 243 Wis. 2d 394, 627 N.W.2d 469 (we do not address
insufficiently developed arguments); Barakat v. DHSS, 191 Wis. 2d 769, 786, 530
N.W.2d 392 (Ct. App. 1995) (reviewing court need not address “amorphous and
insufficiently developed” arguments); see also Industrial Risk Insurers v.
American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“[W]e will not abandon our neutrality to develop arguments” for the
parties.). Furthermore, the question before us is not whether the information was
“relevant” but whether counsel performed ineffectively. S.M.F. fails to make a
case to overcome our strong deference to counsel’s decisions, conduct and overall
performance and makes no effort to develop an argument that there was a
reasonable probability of a different result if counsel had called these three
witnesses at trial.

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Mistrial

¶10 S.M.F. claims the circuit court erred in not granting her request for a
mistrial after the State asked one of its witnesses, a Racine County Human
Services case management supervisor, whether she “ever [had] a concern about
[S.M.F.] maintaining a suitable residence, particularly drug activity out of her
home?” S.M.F. has not shown that the court erred.

¶11 As we have stated:

Whether to grant a mistrial is a decision that lies within the
sound discretion of the circuit court. The circuit court
“must determine, in light of the whole proceeding, whether
the claimed error was sufficiently prejudicial to warrant a
new trial. The denial of a motion for mistrial will be
reversed only on a clear showing of an erroneous use of
discretion” by the circuit court.

State v. Doss, 2008 WI 93, ¶69, 312 Wis. 2d 570, 754 N.W.2d 150 (citations
omitted).

¶12 Following the State’s question, S.M.F.’s counsel objected and the
circuit court sustained the objection before any response by the witness. Out of
the presence of the jury, S.M.F. moved for a mistrial. As part of argument on this
point, counsel indicated that S.M.F. did not want a specific curative instruction on
the matter “because it would basically bring the jury back to” the issue. The court
ultimately denied the motion for a mistrial, concluding that the unanswered
question by the State was not so prejudicial that S.M.F. could not get a fair trial,
especially in light of the fact that it had instructed the jury before the presentation
of evidence that the jury “should not draw any inference from an unanswered
question.”

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¶13 In the “Argument” section of her brief-in-chief, S.M.F. cites to cases
identifying the law related to mistrials and curative instructions. Her actual
“argument” related to her mistrial “issue,” however, consists only of:

The trial court did ultimately rule that the information,
while relevant, was unfairly prejudicial and would lead to
confusion. Nevertheless, the jury heard the unanswered
question. There was not a curative instruction given to the
jury about ignoring the statement. The prejudicial effect
was never abated in this case. It is impossible to erase the
prejudicial effect of a statement if no curative instruction is
given under the circumstances of this case.

(Emphasis added.) As with her ineffective assistance of counsel issue, SMF again
fails to sufficiently develop an argument on her mistrial issue as she fails to apply
the law related to mistrials to the facts of this case. Specifically, her assertion as to
prejudice is conclusory, and she develops no argument attempting to show that
“the claimed error was sufficiently prejudicial to warrant a new trial.” See Doss,
312 Wis. 2d 570, ¶69. Therefore, we do not address her mistrial complaint. See
Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258
Wis. 2d 915, 656 N.W.2d 56 (we do not address conclusory and undeveloped
contentions).

¶14 While we could end our discussion there, we further point out that,
as S.M.F. and the State (and the circuit court) note, the witness never answered the
State’s question. As the State adds in its response brief: “No evidence was ever
presented regarding drug activity out of S.M.F.’s home. In fact, drug activity was
never mentioned again through the course of the trial.”

¶15 As to S.M.F.’s assertion that the circuit court never gave a curative
instruction regarding this “drug activity” question by the State, we cannot
overlook that her own counsel told the court that S.M.F. did not want a specific

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curative instruction “because it would basically bring the jury back to” the issue.
Thus, if error did occur, S.M.F. invited it, and we do not review invited error. See
Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992).
Moreover, as the court noted, it did instruct the jury, prior to the presentation of
evidence, that it “should not draw any inference from an unanswered question,”
and it further added, “because the law requires that your decision be made solely
upon the competent evidence before you.” And the court also instructed the jury,
both before and after the presentation of evidence, that it was “to decide the case
solely on the evidence offered and received at trial” and the “[r]emarks of the
attorneys are not evidence. If any remarks suggest certain facts not in evidence,
disregard the suggestion.” As S.M.F. recognizes, the law holds that “[j]urors are
presumed to have followed jury instructions.” See State v. LaCount, 2008 WI 59,
¶23, 310 Wis. 2d 85, 750 N.W.2d 780. We thus presume the jury here followed
the court’s instructions and did not base its verdicts on the singular, unanswered
question S.M.F. challenges.

The Real Controversy

¶16 S.M.F. also asserts that, “in the interest of justice,” we should
exercise our discretionary reversal power under WIS. STAT. § 751.06, on the basis
that “[i]t is entirely probable that the accumulation of error in these cases suggest
that the real controversy has not been tried here.” She fails to persuade.

¶17 We are to exercise our power under WIS. STAT. § 751.06 “only in
‘exceptional cases.’” See State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826
N.W.2d 60 (citation omitted). “The power to grant a new trial in the interest of
justice is to be exercised ‘infrequently and judiciously.’” Id. (citation omitted).
We “approach[] a request for a new trial with great caution” and “are reluctant to

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grant a new trial in the interest of justice.” Id. (citation omitted). S.M.F.’s
“argument” on this point is again conclusory and undeveloped, only briefly
referring back to her undeveloped contentions on the prior issues for support.
S.M.F. has not convinced us that this is an “exceptional case” requiring reversal in
the interest of justice.

By the Court.—Orders affirmed.

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

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