Chippewa County Department of Human Services v. J. W.

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 19, 2022
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 No. 2021AP1986 Cir. Ct. No. 2020TP50

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

CHIPPEWA COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

J. W.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Chippewa County:
BENJAMIN J. LANE, Judge. Affirmed.
No. 2021AP1986

¶1 HRUZ, J.1 Janine2 appeals from an order terminating her parental
rights to her child, and from an order denying her motion for postdisposition
relief.3 She argues there was insufficient evidence to support the jury’s verdict
that the Chippewa County Department of Human Services (“the County”) made
the required reasonable effort to provide the services ordered by the circuit court
in its dispositional order designating her son, George, as a child in need of
protection or services (“CHIPS”). Additionally, Janine argues that her trial
counsel was ineffective by failing to object at a number of key points during her
grounds-phase trial. Ultimately, we conclude that there was sufficient evidence to
support the jury’s verdict and that Janine’s counsel was not constitutionally
ineffective. Accordingly, we affirm the orders.

BACKGROUND

¶2 Janine’s then-fourteen-month-old son, George, was taken into foster
care by the County on June 18, 2019, after Janine was arrested for violating
conditions of her probation. During the course of her arrest, Janine admitted to
smoking methamphetamine and possessing drug paraphernalia. George was
removed from Janine’s home based on the safety concerns resulting from Janine’s

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reading and to protect confidentiality, we refer to the appellant and her son
in this confidential matter using pseudonyms, rather than their initials or names.
3
Cases appealed under WIS. STAT. RULE 809.107 “shall be 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.” See 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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use of methamphetamine in the home, in addition to Janine’s inability to care for
George due to her incarceration.

¶3 After a dispositional hearing held on August 5, 2019, George was
designated as a child in need of protection or services and was placed with a foster
family. As a part of the CHIPS dispositional order, Janine was required to meet a
number of court-ordered conditions in order for George to be returned to her.
During the hearing, Janine was informed orally of the potential grounds for the
termination of her parental rights to George, and she also signed a written form
including the same information.

¶4 On December 23, 2020, the County filed a petition to terminate
Janine’s parental rights to George, alleging that grounds for termination existed
under WIS. STAT. § 48.415(2)(a)—continuing CHIPS. Janine contested the
County’s petition, and a one-day jury trial on the grounds for termination took
place on May 27, 2021. As relevant to the issues on appeal, opening and closing
statements were made by both parties and by George’s guardian ad litem
(“GAL”). A number of witnesses testified regarding the court-ordered conditions
Janine was required to meet for George to be returned to her custody. Only
portions of the lengthy trial testimony are relevant to the scope of this appeal, and
they are detailed throughout the remainder of this opinion.

¶5 The conditions imposed on Janine required that she: (1) cooperate
with the County and attend all scheduled meetings while following any
recommendations made therein; (2) notify her social worker within twenty-four
hours of any police contacts and changes to her residence, telephone number, or
employment; (3) cooperate with announced and unannounced County visits;
(4) provide her social worker with documentation of her completed conditions;

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(5) not provide primary care for any child under the age of eighteen; (6) participate
in individual counseling as deemed appropriate and follow through with any
recommendations; (7) not associate or live with anyone involved in using illegal
drugs or any dangerous activity that could affect George’s safety; (8) adhere to
any treatment recommendations made as a result of George’s developmental and
psychological assessments; (9) have regular and successful visits and contact with
George pursuant to the County’s visitation plan; (10) engage with any assessments
or recommended treatments as deemed appropriate by her social worker;
(11) provide George with a safe, suitable and stable home in order to meet his
physical, emotional, medical and environmental needs on a daily basis; (12) not
use or possess any drugs or chemical substances, and submit to random drug
screenings; and (13) sign consents for treatment and any necessary release-of-
information forms to allow the County to obtain and share information with
providers for case management purposes.

¶6 Abigail Smasal, Janine’s case manager, testified regarding the
efforts that she and the County made regarding each of Janine’s court-ordered
conditions, in addition to Janine’s level of compliance with those conditions.
Janine was offered weekly visits with George until March 2020, but she missed a
significant number of these visits. Subsequently, the COVID-19 pandemic
necessitated the transition of these visits to a virtual format, at which time the
County and George’s foster parents increased Janine’s visits to two per week.

¶7 George’s foster father testified that Janine attended forty-seven out
of ninety-four of her scheduled virtual visits. When Janine missed a virtual visit,
she would sometimes email afterward to explain that her absence was due to
technical problems or a lack of cellular connection, but she did not always do so.
In addition, George’s foster father testified that despite his wife creating a Google

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phone number that was available for Janine to call if she was having issues with a
virtual visit, and asking her to reach out if she had issues, Janine did not do so.

¶8 Smasal testified that although Janine attended the majority of their
required monthly meetings, she did miss a few meetings. In addition, Janine
“frequently” did not notify Smasal of her address changes or of her contacts with
police. Smasal explained that despite consistent referrals and follow-ups, Janine
did not complete her required counseling and failed to complete assessment
programs the County deemed appropriate. Smasal also testified that throughout
the majority of the period she was working with Janine, including when Janine
was participating in rehabilitation services, Janine continued to test positive for
methamphetamine.

¶9 Additionally, Smasal stated that she believed Janine failed to comply
with two other conditions—namely, by associating with others involved with
illegal drugs and by failing to obtain stable housing—the latter of which was also
testified to by other witnesses. Smasal also testified to her efforts in helping
Janine meet her various conditions, including, among other things, driving to
Janine’s home to conduct drug tests personally; referring Janine to counseling and
treatment programs; providing her with a gas card; and pointing her to medical
transport options to help with transportation.

¶10 Janine testified at trial regarding her continued drug use and her
inability to meet many of her court-ordered conditions, including those pertaining
to housing, treatment, drug use, and visitation. However, Janine testified that
many of these failings were due to a lack of effort on the County’s part, a lack of
internet access to facilitate her virtual visits with George, and a lack of available
transportation to allow her to get to her required services.

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No. 2021AP1986

¶11 The jury ultimately entered a verdict in favor of the County, finding
that the County made a reasonable effort to provide the services ordered by the
circuit court and that Janine had failed to meet the conditions established for
George’s safe return. After a dispositional hearing, the court ordered the
termination of Janine’s parental rights to George on June 17, 2021.

¶12 Janine filed a motion for postdisposition relief, arguing that her
attorney was ineffective for failing to object at key points during the grounds trial.
On February 16, 2022, after holding a Machner4 hearing, the circuit court denied
Janine’s motion. Janine now appeals from the order terminating her parental
rights to George and from the order denying her motion for postdisposition relief.
We include additional facts in the discussion section where relevant.

DISCUSSION

1. Sufficiency of the evidence

¶13 Janine first argues that the County presented insufficient evidence at
trial to support the jury’s verdict. Specifically, she argues the County did not
satisfy its burden of proving that George continued to be a child in need of
protection or services because the County failed to show that it made a reasonable
effort to provide court-ordered services to her. We disagree.

¶14 On appeal, this court will not upset a verdict if any credible evidence
supports it. See Richards v. Mendivil, 200 Wis. 2d 665, 671, 548 N.W.2d 85
(Ct. App. 1996). The credibility of the witnesses and the weight afforded to their

4
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP1986

testimony are left to the jury. See id. If more than one reasonable inference may
be drawn from the evidence, this court must accept the jury’s choice, and we
consider the evidence in the light most favorable to the jury’s verdict. See State v.
Poellinger, 153 Wis. 2d 493, 501, 506-07, 451 N.W.2d 752 (1990). As such, we
search the record for credible evidence to sustain the verdict, not for evidence to
sustain a verdict the jury did not reach. See Richards, 200 Wis. 2d at 671.

¶15 To establish that the continuing CHIPS ground for an involuntary
termination of parental rights (TPR) exists, the County has the burden to prove
that several elements are met. See WIS. STAT. § 48.415(2). The only element
Janine challenges on appeal is whether the County made a reasonable effort to
provide the services ordered by the circuit court, so that Janine could meet the
conditions for George to be returned to her home. See § 48.415(2)(a)2.b. The
court instructed the jury that a “reasonable effort” is defined as

an earnest and conscientious effort to take good faith steps
to provide the services ordered by the court which takes
into consideration the characteristics of the parent or child
or of the expectant mother or child, the level of cooperation
of the parent or expectant mother and other relevant
circumstances of the case.

Sec. 48.415(2)(a)2.a. The jury was then asked to determine whether the County
had proven, by evidence that was clear, satisfactory and convincing, to a
reasonable certainty, that it made a reasonable effort to provide court-ordered
services under the continuing CHIPS ground. See WIS JI—CHILDREN 324.

¶16 Janine explains that although she initially had in-person visits with
George, as a result of the COVID-19 pandemic, those visits were ultimately
converted to video calls. Janine argues that although she had informed the County
that she did not have a reliable phone or internet connection, it failed to aid her in

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No. 2021AP1986

obtaining a phone, a computer, a reliable cellular connection, or a Wi-Fi
connection to facilitate her video visits with George. Janine takes issue with
Smasal’s testimony at trial that those items “would be something that we’d have to
provide every client just to make things fair, and we couldn’t sustain that
financially,” and Janine argues that such services should be tailored to individual
parents’ needs.

¶17 We conclude that credible evidence presented at trial supports the
jury’s conclusion that the County made a reasonable effort to facilitate Janine’s
visits. As the County points out, Janine attended less than half of her scheduled
in-person visits prior to the COVID-19 pandemic, and the County doubled the
number of visits to twice a week after the visits transitioned to a virtual format. In
addition, despite her claims, the evidence is clear that Janine was not wholly
unable to access these virtual visits. Janine had a working phone, in addition to
the ability to borrow one from her roommate if hers was not working.
Furthermore, Janine testified that because she had bad reception where she lived,
she sometimes needed to go down the street to “get the extra Wi-Fi.” Although
potentially inconvenient, this fact further shows that Janine had the capacity to
attend most of her scheduled video calls with George.

¶18 We note that the County and George’s foster parents made these
visits easier by scheduling them at the same time every week and by making them
accessible by the same Zoom link each time. In addition, while working closely
with Smasal, George’s foster father offered to accommodate Janine if she had any
issues with the virtual visits. George’s foster parents even provided Janine with a
unique phone number to call to get in touch with them. The foster father also
testified, however, that Janine never notified him or his wife via this designated
number that she was experiencing any issues. George’s foster father also noted

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No. 2021AP1986

that sometimes Janine would notify him after the fact that she had missed the call
due to data or other issues, but she often would not provide any notice regarding
her failure to connect. His visit log also shows that many visits were missed for
unexplained reasons. Ultimately, Janine attended forty-seven out of ninety-four of
the scheduled virtual visits. This fact shows that Janine had the ability to attend
many of the virtual visits, even if she ultimately failed to do so on numerous
occasions.

¶19 Although it might have been easier for Janine if the County had
provided her with equipment or internet service to facilitate her attendance at the
virtual visits, the County was not obligated to do so in order to make “an earnest
and conscientious effort to take good faith steps to provide the services ordered.”
See WIS. STAT. § 48.415(2)(a)2.a. While Janine points to school districts and
other State organizations that she claims were able to provide equipment for
virtual calls during the pandemic, what is at issue here is the reasonableness of the
County’s effort as defined under § 48.415(2)(a)2.a., given its capabilities under the
circumstances. See § 48.415(2)(a)2.a. (defining “reasonable effort” as an earnest
and conscientious effort that takes into consideration, among other things, “other
relevant circumstances of the case”).

¶20 In particular, Smasal directly testified that the County could not
afford to provide cell phones, computers, or internet service to all of its clients. In
addition, to cooperate in remedying these issues, Janine could have asked
George’s foster parents for assistance, been consistent in following up about
call-in issues, or timely alerted Smasal and the County to her inability to make
particular calls, if she was truly unable to do so at a given time. The record
demonstrates that there were a number of ways that Janine could have ensured that
she attended most of her video calls, or that she at least consistently notified

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No. 2021AP1986

George’s foster parents and the County of the issues she was having. We
therefore conclude that the evidence presented at trial supports the jury’s
conclusion that the County’s failure to provide Janine with special equipment for
virtual calls did not, under the totality of the circumstances, constitute a failure by
the County to make a reasonable effort to provide her with court-ordered services.

¶21 Next, Janine argues that the County failed to provide her with
assistance in finding housing. She asserts that despite the requirement that she
find safe housing for George, the only actions taken by the County were to ensure
that she had received a voucher for housing. In addition, Janine contends
Smasal’s testimony that Janine only failed to meet this condition because
“[Smasal] believe[d] she didn’t put forth the effort” was controverted by the
housing coordinator’s testimony. We disagree that the evidence was insufficient
for the jury to conclude that the County made a reasonable effort to assist Janine in
finding adequate housing.

¶22 Smasal testified that Janine had received a housing voucher through
the Chippewa County Housing Authority (CCHA).5 Smasal said she had
contacted Janine’s housing authority worker at the CCHA to ensure that Janine’s
housing voucher was still valid. In addition, Janine’s probation agent testified that
in July 2019, Janine had been offered a place to live at the Hope House, a facility
associated with Chippewa County’s recovery court. The agent explained that

5
Successful applicants to a CCHA housing program receive a “voucher” for housing. A
housing voucher can be redeemed by a program participant to have the program pay a portion of
rental costs. The housing voucher is valid for sixty days, unless an extension is requested and
approved. By ensuring that Janine’s housing voucher was still valid, Smasal effectively ensured
that Janine was still an eligible participant in the housing program and able to obtain housing
through the program to which Smasal had referred her.

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recovery court is a program associated with the court system that helps individuals
with addiction issues. The agent further explained that the Hope House was a
“stable place to … maintain sobriety,” but that Janine had turned down the offer to
stay there. The agent testified that this refusal was likely because George could
not have stayed with Janine at the Hope House if she had regained custody of
him.6 However, the agent also testified that the facility was “transitional” and that
individuals generally only stayed there during recovery before transitioning to
permanent housing.

¶23 A housing specialist with the CCHA, Kelly Begley, also testified
regarding the process of obtaining housing through that program. She explained
that people apply to the CCHA program, are placed on a waiting list, and when
they are approved, they receive a voucher from the program that is good for sixty
days. Then, it is the program participant’s responsibility to find housing, after
which the program assists them in making payments. Begley testified that Janine
successfully obtained housing using a voucher in May 2019. Begley testified,
however, that Janine was evicted in June 2019 for engaging in criminal activity.
Janine reapplied to the program in December 2019, and she received another
voucher in November 2020 but was again unable to find suitable housing. Begley
testified that Janine requested extensions to the eligibility period for her housing
voucher when necessary, and she had been looking for housing while her voucher
was eligible. Begley further testified that Janine also applied for Section 8

6
Janine later testified at trial that she turned down the offer to stay at the Hope House
because she “was not a resident of Chippewa County” and therefore “was not eligible” to stay
there. She provided this same justification for not participating in recovery court. To the extent
Janine means to raise this argument again on appeal, the jury was entitled to find the probation
agent’s description of Janine’s eligibility for housing programs more credible than Janine’s
claims.

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housing, the second of Chippewa County’s two housing programs. On her first
application in March 2020, Janine failed to provide required documentation and
was thus not approved. On her second application in August 2020, Janine was
successfully placed on the waiting list. No further facts were elicited regarding
Section 8 housing at trial.

¶24 In addition, and notably, Janine does not suggest anything that the
County could have done differently in assisting her in finding housing, nor does
she assert that she asked for more assistance and did not receive it. Furthermore,
the trial testimony also suggests that Janine was evicted from housing she had
obtained due to her engaging in criminal activity, and that part of Janine’s problem
establishing stable housing may have been that eviction, among other factors.
This contextualizes the County’s ability to assist Janine in finding appropriate
housing.

¶25 Based on the testimony at trial, we determine that credible evidence
supported the jury’s conclusion that the County made a reasonable effort to help
Janine find housing. In particular, Smasal ensured that Janine had an active
voucher to help pay for any housing that she found. Based on the testimony, it is
evident that the main problem was not with the CCHA’s program failing to offer
to pay for Janine’s housing, but with Janine finding suitable housing with which to
use a voucher. While we acknowledge that Janine made efforts to apply to the
housing program and for extensions of her eligibility, the County also made a
reasonable effort to assist her.

¶26 Janine next argues that the County failed to assist her in arranging
transportation to visits, treatment services, and drug screenings. She claims
Smasal’s testimony that the County did not provide her with transportation

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because she could get a ride from a friend has no basis, and she points to several
recent TPR cases where parents were provided with transportation—asserting that
the County should have done the same here.

¶27 Janine misstates the trial record. Smasal did not testify that she
declined to arrange transportation for Janine simply because she thought that
Janine could get a ride from her friend; instead, she highlighted several ways in
which she helped facilitate Janine’s transportation. Smasal testified that Janine
had access to a medical transport service provided by the State, which required
Janine to call twenty-four hours in advance to receive transportation. Although
this solution would not work for Janine’s periodic random drug screenings (as they
occurred with less than twenty-four hours’ notice), it was available for the
remainder of her scheduled appointments.

¶28 Similarly, Janine’s psychotherapist at the Transitions psychiatric
care program, Victoria Zwiefelhofer, testified that while Janine had attendance
problems, medical transportation services were available to Janine. Janine
testified at trial that although she attempted to use this service, “[m]ost of the time
they didn’t show up. That’s why I didn’t make … so many days.” Although the
jury was ultimately entitled to determine whether this excuse was credible, even if
it were true, Smasal provided several more examples of accommodations that the
County made to assist Janine with her transportation to services.

¶29 In particular, Smasal testified that she provided Janine with a gas
card on one occasion after Janine drove a car to their visit. On another occasion,
Smasal performed a drug test based on Janine’s hair sample instead of another
form of testing, so that Smasal could conduct one test for the previous three-month
period, instead of needing to arrange tests requiring Janine to travel every two

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weeks. In addition, Smasal testified that George was actually moved to a different
foster family in November 2019, in part so that he would live closer to where
Janine resided. Furthermore, Smasal testified that she drove to visit Janine herself
to conduct drug tests on nine or ten occasions because she knew that Janine
sometimes had transportation difficulties.

¶30 Given these various attempts by the County to facilitate Janine’s
travel, we conclude there was credible evidence presented at trial supporting the
jury’s conclusion that the County made a reasonable effort to assist Janine with
transportation in order to allow her to attend services and visits, so as to comply
with her court-ordered conditions.

¶31 Finally, we note that for all of Janine’s arguments regarding the
sufficiency of the evidence, the jury was presented with the relevant facts, and it
was given the opportunity to assess whether the County’s efforts to provide
services were sufficient under the circumstances. The jury had the opportunity to
hear Janine’s explanations at trial, assess her credibility, and then determine
whether the County’s efforts met the statutory standard. In addition, the evidence
at trial showed that Janine was provided various assistance relating to other
court-ordered conditions about which she does not specifically raise an argument
on appeal, including referrals and follow-ups for group counseling, intensive
outpatient treatment, and recovery court for drug and alcohol dependency.

¶32 Even if the jury thought that the County could have done more
regarding certain aspects of Janine’s court-ordered conditions, it was entitled to
assess the conditions and testimony as a whole to conclude that, ultimately, the
County made a reasonable effort to assist Janine in meeting those conditions
pursuant to WIS. STAT. § 48.415(2)(a)2.a.-b. For the reasons discussed above, and

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having reviewed the entire trial transcript, we conclude that, taken in the light
most favorable to the jury’s verdict, credible evidence supported the jury’s
determination that the County made a reasonable effort to provide the services
ordered by the circuit court.

2. Ineffective Assistance

¶33 Janine next argues that her trial counsel was constitutionally
ineffective for failing to object at several key points during her trial. A TPR
respondent has the right to effective assistance of counsel, as that right is outlined
in Strickland v. Washington, 466 U.S. 668 (1984). See A.S. v. State, 168 Wis. 2d
995, 1004-05, 485 N.W.2d 52 (1992). On appeal, we uphold the circuit court’s
factual findings as to counsel’s conduct unless those findings are clearly
erroneous, but we decide de novo whether that conduct constitutes ineffective
assistance. Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 710-11, 530 N.W.2d
34 (Ct. App. 1995).

¶34 To establish ineffective assistance of counsel warranting reversal of
a TPR order, the respondent parent must show that counsel’s performance was
deficient and that the deficient performance was prejudicial. A.S., 168 Wis. 2d at
1005. To establish deficient performance, a parent must show that trial counsel’s
performance fell below an objective standard of reasonableness. State v.
Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904 N.W.2d 93. There is a strong
presumption that trial counsel’s conduct “falls within the wide range of reasonable
professional assistance.” Id. (citation omitted). In addition, “[c]ounsel’s decisions
in choosing a trial strategy are to be given great deference.” Id. (alteration in
original) (citation omitted). In fact, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually

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unchallengeable” on appeal. Strickland, 466 U.S. at 690. Deficient performance
is prejudicial where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.

I. GAL’s Opening Statement

¶35 First, Janine argues that her attorney was ineffective for failing to
object to the GAL’s opening statement, claiming it improperly focused on the case
being a first step toward giving George “permanence.” Janine correctly notes that
this consideration is only proper for the disposition phase of a TPR proceeding,
not the grounds phase. See WIS. STAT. § 48.426(3)(f) (Among the circuit court’s
considerations at the disposition phase is “[w]hether the child will be able to enter
into a more stable and permanent family relationship as a result of the
termination.”). In particular, Janine asserts that the GAL’s statement created an
unreasonable risk that the jury would improperly consider George’s best interests
during the grounds phase instead of focusing on Janine’s parental rights. We
disagree that the GAL’s statement created such a risk.

¶36 As noted, Janine is correct that George’s best interests are not at
issue at the grounds phase of a TPR proceeding. See Steven V. v. Kelley H., 2004
WI 47, ¶26, 271 Wis. 2d 1, 678 N.W.2d 856 (“The best interests of the child do
not ‘prevail’ until the parent has been declared unfit after fact-finding by the court
or jury at the grounds phase of the TPR proceeding.” (citation omitted)).
However, in the context of the entirety of the GAL’s opening statement, it is
evident that the GAL’s reference to “permanence” did not direct the jury to
consider George’s best interests instead of focusing on Janine’s parental rights. In
full, the GAL’s opening statement reads:

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[I will k]eep this brief. So I wanted to just reiterate that
[George is] three years old. He’s been out of home for two
years. This has been an ongoing case that’s been
happening with a small child not being able to have an
interaction properly with his mother for the majority of his
life.

This case comes down to having a first step to bringing him
into a place where he can have some permanence and
have—know where he belongs. So what we’re looking to
do today is to have you look and see if there was actually
an effort made to give him that permanence from his mom;
that she should—she be looked at as not having the ability
to complete those requirements that she had, or do you
think that she should have been able to make those
requirements by now, and is it fair to [George] that that
hasn’t been done in two-thirds of his life, and should we be
setting something in—at a point right now where we’re
able to move forward and give him that permanence that he
needs. Thank you.

¶37 Considering the GAL’s statement about “permanence” in context, it
is evident the comments—a few of which were perhaps imprudent—were framed
within the consideration of whether Janine had made an effort to meet
court-ordered conditions so that George could be returned to her home. The
GAL’s comments were not improper simply because they described George’s
out-of-home placement or general lack of permanence in his life to that point, and
the GAL’s mentioning of George in some capacity is to be expected due to his role
as George’s advocate.

¶38 Importantly, the GAL neither directed the jury to consider George’s
best interests nor introduced language confusing the legal standards that the jury
would ultimately need to evaluate. Instead, the GAL explicitly and properly
directed the jury by explaining that “what we’re looking to do today” is to see if
Janine made an effort to give George permanence and whether she “should have
been able to make those requirements by now.” In this context, the focus of the

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No. 2021AP1986

permanence issue was whether Janine had attempted to meet the court-ordered
conditions necessary to have George returned to her—not an abstract focus on
George’s best interests.

¶39 In sum, despite the GAL alerting the jury to George’s general need
for permanence, this focus was within the framework of highlighting the
importance of the jury’s assessment of whether Janine had made an effort to
cooperate and meet the court-ordered conditions. The GAL’s short opening
statement—one of three opening statements—did not create an unreasonable risk
that the jury would improperly consider George’s best interests at this phase of the
TPR proceedings. Accordingly, Janine’s attorney was not ineffective for failing to
object to the GAL’s characterizations.

¶40 Although Janine points out that the County stipulated to the fact that
there was “no strategic reason” for Janine’s attorney not to object to the GAL’s
opening statement, the County specifically qualified that it is “not saying that he
performed deficiently.” Because we ultimately conclude that the GAL’s opening
statement was not improper, whether Janine’s attorney had a strategic reason for
not objecting to it does not alter our conclusion that his decision not to object was
not an instance of deficient performance. And given that counsel’s performance
relating to the GAL’s opening statement was not deficient, we need not address
any of Janine’s arguments related to prejudice. See Strickland, 466 U.S. at 687.

II. Smasal’s Testimony

¶41 Janine also argues that her trial attorney was ineffective for failing to
object to portions of Smasal’s testimony. Janine claims that Smasal “usurped” the
role of the jury in answering questions the jury was supposed to decide.
Specifically, Janine takes issue with Smasal’s testimony that she had made a

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No. 2021AP1986

reasonable effort to provide Janine with services, that Janine had not met the
conditions for return, and that George was a child in continuing need of protection
or services. Janine claims that these points of testimony were not rationally based
on Smasal’s own perceptions and they were not helpful to the jury’s understanding
of witness testimony or the facts at issue. Accordingly, Janine claims that
Smasal’s testimony was not within the permissible scope of a nonexpert opinion,
as required by WIS. STAT. § 907.01. We again reject Janine’s arguments.7

¶42 WISCONSIN STAT. § 907.01 permits opinion testimony by lay
witnesses as long as it is: (1) rationally based on the perception of the witness;
(2) helpful to a clear understanding of the witness’s testimony or the determination
of a fact in issue; and (3) not based on scientific, technical, or other specialized
knowledge within the scope of a witness under WIS. STAT. § 907.02(1). Sec.
907.01. Janine first argues that “Smasal’s perceptions at trial were shown to have
been inaccurate,” pointing to Smasal’s defensive tone and arguing that Smasal’s
testimony about Janine’s efforts in obtaining housing was contradicted by another
witness’s testimony. However, simply presenting testimony that conflicts with
that of another witness or speaking in a defensive tone does not amount to
Smasal’s testimony not being rationally based on her own perceptions. Whatever
the ultimate merit of Smasal’s perceptions, as long as her testimony was rationally
based upon them, it would be acceptable as evidence. Janine points to no

7
Janine further argues that Smasal’s testimony was cumulative, risked confusing the
jury, and was prejudicial under WIS. STAT. § 904.03. However, Janine fails to develop this
additional, single-sentence argument, and we therefore decline to address it. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues
inadequately briefed.”).

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No. 2021AP1986

additional evidence supporting her contention that Smasal testified as to matters
beyond her personal knowledge, and we reject her argument.

¶43 Next, Janine claims that Smasal’s testimony was not helpful to the
jury’s understanding of the facts at issue. Janine argues that Smasal’s opinion of
her own work was “not necessary” to clarify any issues and that testifying to
whether she had made a reasonable effort to provide Janine with services was a
legal conclusion that should have been left to the jury. To the contrary, no witness
testimony could have been more helpful to the jury’s understanding of the facts in
this case on the reasonable efforts issue than testimony from the County employee
generally responsible for Janine’s case and for making a reasonable effort to assist
her in meeting her court-ordered conditions. We agree with the circuit court’s
reasoning at the postdisposition hearing that “Smasal was the best person to testify
regarding her opinions on how the services were rendered and how [Janine]
responded to those services.”

¶44 Regarding Janine’s claim that Smasal made improper legal
conclusions in her testimony, counsel for the County asked Smasal a single time
whether she—not the County—had made “reasonable efforts” to help Janine
achieve the court-ordered conditions, and whether she thought she could have
done anything more. Smasal’s response to these questions was not testimony to an
ultimate legal conclusion but, rather, was a social worker’s opinion of her own
success in providing efforts to ensure that Janine met the relevant conditions. It
was appropriate evidence for the jury to consider when reaching its overall
conclusion as to whether the County, as a whole, made a reasonable effort to
provide Janine with assistance.

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No. 2021AP1986

¶45 For all of the above reasons, we reject Janine’s arguments that
Smasal’s testimony was improper. Her attorney was thus not deficient in failing to
object to the challenged testimony.8

III. GAL’s Closing Statement

¶46 Janine next argues that her attorney was ineffective for failing to
object to the GAL’s closing statement, alleging that portions of that argument
were improper because they introduced new information to the jury not taken from
the evidence presented at trial. Specifically, Janine argues the GAL informed the
jury that Janine could have told the CHIPS court if she felt that certain conditions
for return were impossible, and she was therefore responsible for any difficulties
she had in meeting them. Janine further criticizes the GAL for telling the jury that
Janine had informed the judge presiding over the CHIPS proceedings that she was
eager to meet those conditions, and that she stated, “[L]et’s go and we can do it”—
a statement to which neither she nor any other witness testified at the TPR
grounds-phase trial.

¶47 The GAL, in his closing statement, generally discussed Janine’s drug
use, her level of compliance with court-ordered conditions, and his position that
the County made a reasonable effort to provide court-ordered services to Janine.
In the introductory portion of the GAL’s closing statement—the portion with
which Janine takes issue—the GAL stated:

8
Janine again points to the County’s stipulation at the postdisposition hearing that
counsel had “no strategic reason” not to object to Smasal’s testimony (but declining to stipulate to
deficient performance). Because we conclude that Smasal’s testimony was not improper, that
stipulation has no bearing on our conclusion that Janine’s counsel was not deficient here.

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No. 2021AP1986

So there was a CHIPS hearing way back in August of 2019,
and [Janine] had the list of conditions that she had to
complete.

Basically the judge goes over that with her and asks her if
she’s able to complete those conditions, and she gives
feedback, and if she says no, I can’t, then the judge talks
with her and figures out if there’s some way they can adjust
those conditions that can meet her needs, but she didn’t
raise concerns at that time that she couldn’t meet the
conditions. She pled to the CHIPS and said, you know,
let’s go and we can do it.

In this appeal, the GAL asserts that these statements were not improper, arguing
that after our supreme court’s holding in Kenosha County DHS v. Jodie W., 2006
WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, circuit courts routinely conduct
colloquies in CHIPS proceedings and ask parents questions to determine whether
any conditions for return are impossible to meet.

¶48 We disagree with the GAL’s contention that simply because
colloquies about the possibility of meeting conditions are commonly made, we can
assume that such a colloquy was provided in the CHIPS proceedings at issue here,
or that Janine indicated to the CHIPS court that she had no problems in meeting
the conditions for return. In looking to Janine’s testimony at trial, however, we
can determine that a few key events occurred in the CHIPS proceedings. First,
although Janine seemed unsure which hearings she had attended, she confirmed
that she did attend a CHIPS hearing. She further confirmed that she thought the
court ordered her to comply with conditions “at every hearing,” and that there
were reviews to determine what progress had been made on her conditions and to
see what help she needed, although Janine claimed that “nobody was offering me
help.”

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No. 2021AP1986

¶49 When Janine was asked at the TPR trial, “[w]hen the court ordered
those conditions for you to follow, did you feel any of those conditions were
unreasonable or was an unrealistic expectation of you to meet those conditions,”
she responded:

I guess during COVID, yes, because I had been signed up
for them in December of 2019, and then further down the
road, it was like February-ish, April-ish, and they said they
called me back, and like the parenting one, the TREM
group one, and the intensive IOP said that at this time it’d
just be further on down the road till they figured out what
they were going to do.

But there wasn’t going to be face-to-face meetings at that
time, and they had—it’d just be like, they would contact me
at a later date when they started them, and then that was
Zoom, and that was a couple months later—well, more like
five months later that I finally got in.

¶50 At no point in Janine’s testimony did she confirm that she had been
asked by the CHIPS court if she felt able to complete her conditions or that she
told the court “let’s go and we can do it,” or even something equivalent.9 We can
only determine that Janine attended a CHIPS hearing, that she had been advised of
the conditions required for the return of her child and the possible consequences if
she did not, and that she had signed the notice form concerning the grounds for her
TPR. We recognize that the GAL might have been explaining the general process
involved in a CHIPS hearing, and by stating Janine “pled to the CHIPS and said,
you know, let’s go and we can do it,” he may have been referring to what Janine’s

9
Although Janine’s statement that she encountered problems with the court-ordered
conditions during the COVID-19 pandemic suggests that she did not have problems with the
feasibility of the conditions at the original CHIPS dispositional hearing in 2019, a transcript of
that hearing is not in the record. Accordingly, we cannot conclude as such.

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No. 2021AP1986

actions in pleading to CHIPS suggested or inferred, instead of a direct quote that
she made.

¶51 Still, we conclude that the GAL’s short characterization suggests the
existence of a specific statement by Janine that is not supported by any evidence at
the trial in this TPR proceeding. Such an argument was improper at closing, either
because it incorrectly stated the facts testified to at trial, or because it introduced
new evidence in the GAL’s closing statement that had not been introduced during
trial.

¶52 Although there may be strategic reasons not to object during closing
argument, here the County directly stipulated that Janine’s attorney had “no
strategic reason why he didn’t object.” We therefore conclude that Janine’s
attorney was deficient for failing to object to the GAL’s statement. We also
conclude, however, that this deficiency did not result in prejudice to Janine, and
Janine’s attorney was therefore not constitutionally ineffective. See Strickland,
466 U.S. at 692. Ultimately, the GAL’s closing statement, one of several given at
trial, discussed the evidence at issue very briefly, and no exceptional emphasis was
placed on the newly introduced evidence. Instead, the majority of the GAL’s
closing statement focused on Janine’s drug use and the efforts she made in
meeting the court-ordered conditions. The brief nature of the improper comment
in relation to the overall trial—at which significant evidence was presented
supporting the County’s position—renders it improbable that the improper
comment prejudiced Janine.

¶53 In addition, the circuit court instructed the jury at the outset of trial
that “[r]emarks of attorneys are not evidence. If any remarks suggest certain facts
not in evidence, disregard the suggestion.” We presume that jurors follow the

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No. 2021AP1986

instructions given by the court. State v. Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d
386, 906 N.W.2d 158. This instruction reduces the chances that Janine’s counsel’s
failure to object to the GAL’s statement was prejudicial. Ultimately, given the
minimal impact that this brief characterization had on the entire trial, and given the
court’s proper jury instruction, we conclude that counsel’s failure to object to the
GAL’s statement did not prejudice Janine.

By the Court.—Orders affirmed.

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

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