N. D. v. E. 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.
January 25, 2023
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. 2022AP1084 Cir. Ct. No. 2020TP49

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

N.D.,

PETITIONER-RESPONDENT,

V.

E.S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Affirmed.
No. 2022AP1084

¶1 GROGAN, J.1 E.S. (Ed)2 appeals from an order terminating his
parental rights to his daughter, K.S. (Kim), following a jury’s determination that
he abandoned her and the trial court’s finding that termination of Ed’s parental
rights was in Kim’s best interest. Ed also appeals from a postdisposition order
denying his request for a new trial in which he alleged trial counsel provided
ineffective assistance. Ed argues that: (1) his trial counsel provided ineffective
assistance by failing to object to N.D.’s (Nancy) rebuttal testimony about his
purported heroin use; (2) his trial counsel provided ineffective assistance by
failing to object to opposing counsel’s closing argument referring to his purported
heroin use; and (3) the postdisposition court’s finding that the heroin references
were not prejudicial is erroneous. This court affirms.

I. BACKGROUND

¶2 Nancy and Ed were in a relationship and had a nonmarital child
together in June 2009. However, about a year later, the two broke up and, after a
few disputes in family court, settled on joint custody with equal placement. When
Nancy learned that Ed might be abusing illegal drugs and alcohol, she sought
modification of the equal placement order. A hearing occurred on September 20,
2016. Ed failed to attend the hearing, and the family court found him in default
and issued an order in October 2016 granting Nancy’s request for modification.3

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
Pseudonyms will be used in place of initials for readability.
3
At the grounds hearing, Ed testified that he missed the September 2016 hearing because
he had been in Florida caring for his mother who had cancer and that he did not make it back to
Wisconsin in time to attend. Ed introduced a letter the family court received on September 20,
2016, that requested the court reschedule the hearing based on his circumstances.

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No. 2022AP1084

The order, which referenced a custody study and the guardian ad litem’s (GAL)
recommendation, placed the child with Nancy and gave Ed supervised visitation
every Wednesday night for two hours. The order directed that: “After six months
of regular Wednesday evening visits as set forth above, [Ed] shall have additional
periods of placement every Saturday from 10 a.m. to 4 p.m. with a mutually
agreed upon supervisor who shall also provide transportation.” That never
occurred. The last time Ed exercised his Wednesday visitation was in May 2017,
and the last contact Ed had with his daughter was in June 2017.4

¶3 In December 2020, relying on WIS. STAT. § 48.415(1)(a)3,5 Nancy
filed a petition seeking to terminate Ed’s parental rights to their daughter on
abandonment grounds, alleging he failed to have contact with her for over six
months. Ed contested the petition. The grounds trial occurred in October 2021.
At the trial, Nancy presented testimony from multiple witnesses, including two
maternal aunts, the maternal grandmother, Kim’s maternal half-brother, her
husband, and herself. These witnesses confirmed that to their respective
knowledge, Ed had not seen or contacted Kim since June 2017 and that they were
not aware of Ed having come to the home or to any of Kim’s school functions or
of Ed having called or sent letters. Ed’s counsel cross-examined each of these

4
Ed testified he sent mail or an email to his daughter in July 2017 when he was in the
Walworth County jail and that he was at Nancy’s house in the Summer of 2018. Even if the jury
accepted Ed’s testimony in this regard, it is not significant because the abandonment period is six
months, and Nancy filed the petition in late December 2020.
5
WISCONSIN STAT. § 48.415(1)(a)3 provides that abandonment, which is a ground for
termination of parental rights, can by established by showing that: “The child has been left by the
parent with any person, the parent knows or could discover the whereabouts of the child and the
parent has failed to visit or communicate with the child for a period of 6 months or longer.”

3
No. 2022AP1084

witnesses with questions that suggested Nancy prevented Ed from exercising his
visitation.

¶4 During her testimony, Nancy confirmed that she did not invite Ed
when she hosted holiday or birthday parties. Nancy also testified that she has
lived in the same home since March 2016 and that Ed knew her address. She also
testified that she had the same phone number and introduced her phone records
from April 2017 to March 2021 to show that Ed had not contacted her during that
time period.

¶5 Ed’s defense to Nancy’s claim that he abandoned Kim was to show
that he had “good cause” for his failure to visit or communicate with his child.
WISCONSIN STAT. § 48.415(1)(c)1-2 excuses a parent’s lack of contact with the
child if the absent parent demonstrates he “had good cause for having failed to
visit [or communicate] with the child throughout the time period[.]” As a result of
the defense’s “good cause” line of questioning, Nancy’s lawyer argued that Ed had
opened the door to introduce testimony about Ed’s purported illegal drug use.
Specifically, Nancy argued that because Ed’s defense theory left the jury with the
impression that Nancy was the reason Ed could not contact or visit his daughter,
Nancy should be able to introduce evidence refuting Ed’s defense. The trial court
agreed that Ed’s defense theory suggested to the jury that Ed’s good cause for not
having contact with his daughter was that Nancy prevented it. The court found
that, based on the defense theory, Nancy:

is entitled to put in why she may have been reluctant or
even to some extent unwilling to initiate contact. The
defense in this case seems to be you didn’t call him, you
didn’t contact him, you didn’t tell him about parties, you
didn’t invite him. Okay, I think that [Nancy] has the ability
to respond to that, because again, if she doesn’t, it will
appear as if she just purposefully excluded him. So her
motivation for excluding him is a fact I think relevant, and I

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No. 2022AP1084

am going to permit limited testimony as to what happened
as far as the conclusion goes. But I don’t want counsel
getting into specifics.

¶6 The trial court then discussed exactly what information could come
in. Nancy’s lawyer explained she wanted to ask Nancy about whether a custody
study was done as a part of the 2016 order and about the GAL’s recommendation,
and she also wanted Nancy to be allowed to indicate, when asked about the
reasons for the 2016 change in placement order, that it was at least in part because
she believed Ed was using drugs. Nancy then testified about the 2016 order.
Namely, she confirmed that Ed did not attend the 2016 hearing, that a custody
study was done that indicated “concerns for [Kim’s] safety while she was in [Ed’s]
placement[,]” and that the reason for the 2016 order was because Ed’s home
“wasn’t a safe place for” Kim—“there was lot of concerns for her wellbeing while
she was in his placement.”

¶7 The defense only called Ed as a witness. He testified about
problems he had with Nancy regarding the Wednesday visitations. Specifically,
he recalled Nancy failing to bring Kim to a magic show he bought tickets for and
her unwillingness to be flexible with his schedule. Ed’s counsel said, “what
you’re saying is that [Nancy] wouldn’t allow you to have your placements after”
June 2017 and then asked if Ed returned to family court to complain about
Nancy’s refusal to give him placements. Ed said he did not go back to court to
complain. He said he did not have the money to return to court, and when he had
gone to court before, “[i]t seemed like they just kept taking from me.” Ed testified
he became depressed.

¶8 After Ed’s direct testimony, Nancy’s lawyer argued that the defense
“open[ed] up the door more” for rebuttal testimony informing the jury that Ed’s

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No. 2022AP1084

purported heroin use was the reason why the family court reduced Ed’s placement
and that information about Ed’s criminal convictions should come in. The GAL
agreed with Nancy’s lawyer and advised the court: “As it stands right now, it
seems the family court unilaterally decided to change placement with [Ed] fairly
dramatically and without the jury able to hear what the bases were, it puts them at
a disadvantage.” The trial court reasoned that:

So during the course of the trial, [Nancy] has been
portrayed as preventing or interfering with [Ed] not
allowing him to exercise his visitation. Testimony has been
taken from cross-examination and from [Ed] regarding the
Saturday visitations. No one really got into why Saturday
visitations were refused, except some reference to the
Wednesday visitations. There is testimony that [Nancy]
did not welcome [Ed] to events. There is testimony that
[Nancy] did not invite [Ed] to family gatherings.

[Ed] has postured this case basically as indicating that
[Nancy] is willfully either withholding this child or
somehow preventing this child from being seen by [Ed]. I
guess based on that defense, it would be relevant that
[Nancy] be able to explain if she has been let’s just say
difficult with [Ed’s] visitation why she is doing that. The
family court case of 09-FA-471 in Walworth County is
referenced with a custody study, but we don’t have that
study and we don’t have the findings except that something
changed after that hearing. So based on the defense that
has been presented, which is the defense of good cause,
[Nancy] is entitled to respond and say it’s not good cause.
Based on what we prior agreed to or what I ordered, she is
somewhat prohibited from talking about why she didn’t
want [Ed] around [Kim].

I also would note in jury instruction 314, part of the
instruction at the end references good cause and it indicates
that in determining if good cause existed and so on, the jury
can consider -- and I’m kind of paraphrasing here --
whether the person with physical custody of the child
prevented or interfered with efforts by the parent to visit or
communicate with the child. That seems to be an argument
made for good cause. I do firmly find that [Nancy] is
allowed to respond to that argument.

Then we go with another part which says any other
factors beyond the parent’s control which precluded or

6
No. 2022AP1084

interfered with visitation or communication. I think the
opposite of that should also be allowed is any factors that
are within that parent’s control that caused this to happen. I
do find evidence of reasons for change in the visitation are
relevant in response to the good cause argument that has
been made.

¶9 The trial court then found that although the requested rebuttal
testimony would be prejudicial to Ed, “it’s probative value based on the [good
cause] defense right now outweighs the prejudicial.” The court ruled that Nancy
“has a right to respond to [the good cause defense] in rebuttal.” Ed’s lawyer
insisted that the criminal convictions were not relevant, and Nancy’s lawyer
clarified that Nancy’s concerns were not the criminal convictions—it was Ed’s
purported heroin problem. She indicated rebuttal testimony would be limited to
that and argued this was reasonable because: “When a parent chooses heroin over
their children, this court becomes involved.” When the court asked whether
Nancy personally observed Ed’s heroin use, her counsel explained that Nancy had
been given information about possible heroin use and that the family court had
ordered Ed to take drug tests. When the court asked how she would get around
potential hearsay issues, Nancy’s lawyer responded it would depend on the
defense case’s witnesses. The court restated its position that “if there is a way to
do it, [Nancy] can certainly indicate” her reason for any reluctance she had to
having Ed being around their daughter.

¶10 When Nancy’s counsel cross-examined Ed, he admitted that he was
ordered to submit to drug testing, and its purpose was to test for the “[p]resence of
drugs in [his] system.” Ed also testified that he stopped communicating with his
daughter because it was too stressful and depressing for him to be limited to the
Wednesday visits after having her all the time under the prior order. He “wanted
to take some time” “to figure out how to fix” it.

7
No. 2022AP1084

¶11 Nancy testified in rebuttal. She explained that she had received
some concerning information from Ed’s father that caused her to return to family
court to reduce Ed’s placement time. She indicated that she had similar concerns
in the past, but this time her concerns were “[g]reater” because her “daughter was
present and [she] was extremely concerned for her wellbeing.” She also
confirmed that Ed had been ordered to do drug testing and that she had not been
similarly ordered. When her lawyer asked whether she “recall[ed] why drug
testing was ordered[,]” Ed’s lawyer objected. The court directed her lawyer to
rephrase the question. The following exchange then occurred between Nancy and
her lawyer:

Q. [D]id you request drug testing?

A. I did.

Q. And the court ordered drug testing?

A. Yes.

Q. Did you have a specific concern in your mind when you
requested drug testing?

A. Yes.

Q. What was the specific concern?

[Defense counsel]: I will object to relevance at this
point. This is from 2013.

THE COURT: I’m going to overrule the objection. We
have been touching on all sorts of dates from 2013 forward
please.

….

Q. What was your specific concern?

A. Heroin use.

Q. Was that the same concern you had on … July 26,
2013?

8
No. 2022AP1084

A. Yes, ma’am.

Q. The same concern you had every time drug testing was
ordered?

A. Yes, ma’am.

Q. Was that the same concern you had at an elevated level
in June of 2016?

A. Yes, ma’am.

¶12 Both parties made closing arguments. As material here, in her
closing argument, Nancy’s counsel emphasized that Ed had not seen or contacted
his daughter for three and one-half years. She told the jury that Ed wanted to
blame his absence on Nancy and her failure to invite him to her home. The lawyer
then said: “Why? Because he wasn’t welcome there. Why wasn’t he welcomed?
Heroin.”

¶13 In his closing, Ed’s counsel reminded the jury that Nancy would not
be flexible in accommodating Ed’s schedule for the weekly supervised visitation,
that Ed became depressed, was “denied visitation with” his child, and he was
“denied phone calls.” Ed’s counsel emphasized that Nancy’s family attended
Kim’s school events and birthday parties but that Ed and his family were not
invited and that if Ed had shown up at Nancy’s house, she would not have let him
in. Ed’s lawyer suggested the lack of contact was not Ed’s fault—it was Nancy’s.
He referenced “potential heroin use” and told the jury that it was “misdirection”
and “uncorroborated[.]” He also argued that the jury should consider whether
Ed’s lack of contact was caused by “interference by another party.” He said Ed
“tried his best[,]” and “[h]e wanted to figure it out like adults [instead of going
back to family court], but ultimately it was prevented.”

9
No. 2022AP1084

¶14 In rebuttal, Nancy’s lawyer’s argued that Ed “has been MIA for
three and a half years. Why? Heroin.” She emphasized Ed had no contact with
his child for 1,288 days and pointed out that if Nancy was interfering with
visitation, Ed could have sought relief in the family court. She told the jury that
“[h]eroin kept [Ed] away for 1,288 [days].”

¶15 The jury returned a verdict finding Ed had abandoned his daughter
for six months or longer and that he did not have good cause for doing so. The
trial court then held a dispositional hearing and found that it was in Kim’s best
interest to terminate Ed’s parental rights.

¶16 Ed filed a postdisposition motion alleging he received ineffective
assistance of trial counsel, and the postdisposition court held a Machner6 hearing.
Ed’s trial counsel testified about why he did not object to the rebuttal testimony or
the reference to heroin use in closing arguments. He explained that he felt that,
based on the court’s prior rulings and after the objection he did make was
overruled, any further objections would have been unsuccessful. He testified that
with respect to the closing argument, his strategy was to address the heroin
reference in his closing and point out that the evidence did not support heroin use.

¶17 The postdisposition court found that trial counsel’s failures to object
were strategic decisions and not deficient. It also found that the rebuttal testimony
was proper because Ed admitted to the drug testing during his testimony, and
“[t]he new issue … was that there was drug testing court ordered admitted to by
[Ed].” It additionally found that the “heroin use” “was offered to rebut” Ed’s good

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

10
No. 2022AP1084

cause defense for his failure to visit or communicate. Further, the court also found
that even if trial counsel’s conduct was deficient, Ed failed to show that his
counsel’s deficiency prejudiced him. The court therefore denied Ed’s
postdisposition motion. Ed now appeals.7

II. DISCUSSION

¶18 The issue in this case is whether Ed’s trial counsel provided
ineffective assistance. Although this is not a criminal case, Ed has the right to
effective counsel because he contested the termination petition. See WIS. STAT.
§ 48.23(2)(b) (“In a proceeding involving … an involuntary termination of
parental rights, any parent who appears before the court shall be represented by
counsel[.]”);8 see also A.S. v. State, 168 Wis. 2d 995, 1005-06, 485 N.W.2d 52
(1992) (explaining the right to counsel must be effective and adopting the
Strickland v. Washington, 466 U.S. 668 (1984), test for evaluating ineffective
assistance of counsel claims in termination-of-parental-rights proceedings).

¶19 A defendant is denied effective assistance when counsel performs
deficiently and the deficiency is prejudicial. Strickland, 466 U.S. at 687; State v.
Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). “An ineffective assistance
of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018
WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95. This court will not reverse the
postdisposition court’s findings of fact unless clearly erroneous. Id. “Findings of

7
Ed initially appealed only from the termination-of-parental-rights order but
subsequently moved this court to remand the matter so he could file a postdisposition motion
alleging ineffective assistance of trial counsel. This court granted the motion in a July 12, 2022
order.
8
The exceptions listed in the statute do not apply.

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No. 2022AP1084

fact include ‘the circumstances of the case and the counsel’s conduct and
strategy.’” State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305
(citation omitted). Whether counsel’s performance was deficient and whether the
deficient performance was prejudicial are questions of law we review de novo.
State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). An appellant
alleging he received ineffective assistance must satisfy both prongs to establish
ineffective assistance of counsel. State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d
640, 782 N.W.2d 695.

¶20 “A lawyer’s performance is not deficient unless he or she ‘made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” State v. Ndina, 2007 WI App 268, ¶13,
306 Wis. 2d 706, 743 N.W.2d 722 (quoting Strickland, 466 U.S. at 687). “To
prove prejudice, a defendant must establish that ‘particular errors of counsel were
unreasonable’ and ‘that they actually had an adverse effect on the defense.’” State
v. Sholar, 2018 WI 53, ¶33, 381 Wis. 2d 560, 912 N.W.2d 89 (citation omitted).
This court “evaluate[s] whether ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Id. (citation omitted). “Our concern is whether the
error rendered the trial unfair and unreliable.” Id. (citation omitted). If this court
concludes an appellant failed to establish his lawyer acted deficiently, we need not
address the prejudice prong. Strickland, 466 U.S. at 697. This court concludes
that Ed failed to establish his trial counsel provided ineffective assistance.

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No. 2022AP1084

A. Rebuttal Testimony

¶21 Ed first claims his trial counsel should have objected to Nancy’s
rebuttal testimony for lack of foundation because Nancy lacked personal
knowledge of him using heroin and also because this was improper rebuttal
testimony. This court rejects Ed’s argument.

¶22 The postdisposition court rejected Ed’s argument because the
testimony at issue was proper rebuttal testimony, and trial counsel provided a
reasonable strategic reason for not objecting. The court reasoned:

So the question itself was not what was the drug testing
… it was for her to explain why she even requested drug
testing. The answer was heroin use. The answer is her
explanation of her concern as to why she requested drug
testing. She was not asked whether [Ed] was a drug user or
not. She was not asked if she had any documents to
supplement that he was a drug user. She was only asked
for a reason for her concern to justify her requested drug
testing. In other words, why did you ask for drug testing
and what was the concern?

Now, as additional foundation, [Ed] did admit to prior
drug testing on more than one occasion. In document 142
at page 18 commencing at line 6 he’s asked: “Who was
ordered to submit to drug testing?

ANSWER: I was

NEXT QUESTION: What was the drug testing for?

ANSWER: Presence of drugs in my system.

….

[QUESTION:] Was that the first time you were court
ordered to do a drug test?

ANSWER: I don’t believe so.”

So [Ed] had admitted not only that he was tested, but
that he was tested on more than one occasion. So this
Court believes that there was more than sufficient

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No. 2022AP1084

foundation for that testimony based upon the fact that
[Nancy] requested testing, the family court ordered testing,
[Ed] acknowledged that he had been tested for drugs in his
system on more than one occasion, and [Nancy’s] response
to the questions indicated what her concern was in bringing
up the issue of testing.

[Ed’s trial counsel] did object to relevance the first time
the question was asked, and I overruled that objection….

Meaning that again as to relevance, the parties had
argued back and forth about visitation and why they didn’t
have visits. And the defense was trying to bring up good
cause for failure to visit or communicate, and the drug
testing issue kept [coming] up as part of that argument in
contradiction to the claim of good cause.

¶23 The postdisposition court also noted that trial counsel’s choice to not
object was a strategic decision. Trial counsel had already objected and had been
overruled, and so it was reasonable for counsel to not continue objecting. The
court also found that this testimony was proper in rebuttal based on Ed’s testimony
during cross-examination about drug testing; therefore, Nancy’s rebuttal testimony
explaining the reason for the drug testing provided proper clarification and
prevented speculation. This court agrees both that this was proper rebuttal
testimony and that there was a sufficient foundation, particularly given the good
cause defense. Further, this court agrees with the postdisposition court that trial
counsel’s decision not to object was a reasonable strategy. Accordingly, this court
cannot conclude Ed’s trial counsel acted deficiently in failing to object to the
rebuttal testimony.

B. Closing Argument

¶24 Next, Ed claims his trial counsel provided ineffective assistance by
failing to object during Nancy’s closing argument when her counsel repeatedly
referenced heroin and told the jury Ed’s abandonment period was caused by his

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No. 2022AP1084

purported heroin use. The postdisposition court rejected this argument, noting that
it instructed the jury that closing arguments were not evidence, and the jury is
presumed to follow the instruction. Moreover, the court explained: “Attorneys
are entitled to a wide latitude in arguments and comments on the evidence.” It
explained that heroin use was not a question on the verdict, and this remark was
made in response to Ed’s defense for why he abandoned his child for such a long
period of time. The court found that trial counsel’s decision to not object was a
reasonable strategic one given that trial counsel was trying to avoid emphasizing
the purported heroin use. It explained:

If an objection is made during closing, that requires the
Court to first of all interrupt the closing; it then requires
that the Court decide what to do; and then give instruction
to the jury. It could be argued that this is a tactical and
strategy decision and that interrupting a closing argument
may in fact send a negative impression to the jury. One
thing this Court believes it does do is it stresses what was
said that caused the objection no matter how often we try to
correct it.

¶25 The postdisposition court found that trial counsel’s decision to not
object was reasonable, proper, and not deficient. This court agrees with the
postdisposition court’s analysis and adopts this reasoning as its own. Objecting to
the heroin remarks would have drawn further attention to them, and trial counsel’s

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No. 2022AP1084

plan to refute them in his closing constituted a reasonable strategic approach. 9
Moreover, counsel is given “considerable latitude in closing arguments,” State v.
Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166, and counsel had
already been overruled by the trial court during the questioning, making it
reasonable to conclude the trial court would have also overruled the same
objection during closing, see Door Cnty. DHFS v. Scott S., 230 Wis. 2d 460, 466,
602 N.W.2d 167 (Ct. App. 1999).

C. Postdisposition Court’s Prejudice Analysis

¶26 Finally, Ed contends the postdisposition court erred when it
concluded that his trial counsel’s failure to object did not prejudice him. Because
this court has concluded that trial counsel did not act deficiently, it is not
necessary to determine whether the postdisposition court’s alternate finding on
prejudice was correct. If this court concludes an appellant failed to establish his
lawyer acted deficiently, we need not address the prejudice prong. See Strickland,
466 U.S. at 697; see also Hussey v. Outagamie County, 201 Wis. 2d 14, 17 n.3,

9
Ed relies on State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77 (2008),
arguing that, like the inappropriate reference to the defendant as a “‘chronic alcoholic’” in that
case, id., ¶30, which was one of many errors the supreme court pointed to in concluding
Jorgensen’s constitutional rights had been violated, Nancy’s lawyer here inappropriately
suggested that Ed was a heroin addict. In Jorgensen, the prosecutor’s “‘chronic alcoholic’”
comment related back to evidence the supreme court determined was inadmissible, such as the
transcript from the prior hearing describing Jorgensen’s behavior in court and a preliminary
breath test administered in the courtroom. Id., ¶¶28-30. Here, however, Nancy’s testimony
regarding concerns about Ed’s purported heroin use was admissible, and Ed had an opportunity to
cross-examine Nancy about her heroin and drug-related concerns. Thus, even if this court were
to assume counsel’s references to heroin use during closing arguments were inappropriate,
counsel did not describe Ed as a heroin addict or chronic heroin user, and the jury heard ample
testimony related to Ed’s lack of contact with Kim for over three years that was entirely unrelated
to any purported drug use.

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No. 2022AP1084

548 N.W.2d 848 (Ct. App. 1996) (“If a decision on one point disposes of the
appeal, we will not consider other issues raised.”).

¶27 Based on the foregoing, Ed is not entitled to a new trial.10

By the Court.—Orders affirmed.

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

10
Counsel is reminded that the appellate rules do not allow citation to unpublished
opinions predating July 1, 2009, as persuasive authority. See WIS. STAT. RULE 809.23(3).

17