Kenosha County DC&FS v. M.A.C.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 14, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2023AP2068 Cir. Ct. Nos. 2022TP59
2022TP60
2023AP2069

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

No. 2023AP2068

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

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY SERVICES,

PETITIONER-RESPONDENT,

V.

M.A.C.,

RESPONDENT-APPELLANT.

No. 2023AP2069

IN RE THE TERMINATION OF PARENTAL RIGHTS TO R.M.F., JR., A PERSON
UNDER THE AGE OF 18:
Nos. 2023AP2068
2023AP2069

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY SERVICES,

PETITIONER-RESPONDENT,
V.

M.A.C.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.

¶1 NEUBAUER, J.1 In these consolidated appeals, M.A.C., referred to
herein by the pseudonym Molly, appeals from orders terminating her parental
rights to her children, R.A.C. and R.M.F., Jr., referred to herein by the
pseudonyms Russell and Rebecca. Molly contends that the circuit court erred in
denying her postdisposition motion without holding an evidentiary hearing. In the
motion, Molly alleged that her trial counsel in the termination proceedings
provided ineffective assistance by advising her to admit certain requests for
admission related to the grounds for termination. Because the record conclusively
established that Molly was not entitled to relief on her ineffective assistance claim,
the circuit court did not err in denying her motion without a hearing.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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BACKGROUND

¶2 Termination of parental rights proceedings involve two phases: the
grounds phase and the dispositional phase. See Sheboygan Cnty. Dep’t of Health
& Hum. Servs. v. Julie A.B., 2002 WI 95, ¶¶24-28, 255 Wis. 2d 170, 648 N.W.2d
402. In the grounds phase, the finder of fact must determine whether the
government establishes the grounds it pleaded “for involuntary termination under
WIS. STAT. § 48.415.” Tammy W-G. v. Jacob T., 2011 WI 30, ¶18, 333 Wis. 2d
273, 797 N.W.2d 854. If the factfinder determines that the government has
established grounds to terminate under § 48.415, “the court shall find the parent
unfit.” WIS. STAT. § 48.424(4). The proceeding then enters the second,
dispositional phase, during which “the court is called upon to decide whether it is
in the best interest of the child that the parent’s rights be permanently
extinguished.” See Steven V. v. Kelley H., 2004 WI 47, ¶27, 271 Wis. 2d 1, 678
N.W.2d 856; see also WIS. STAT. § 48.426(2).

¶3 In January 2020, Russell and Rebecca were found to be in need of
protection or services. On March 10, 2020, the circuit court entered dispositional
orders placing the children in foster care and directing the Kenosha County
Division of Children and Family Services (the County) to provide the following
services to Molly: “Individual Therapy, Anger Management Services,
Psychological Evaluation/services, Random UA’s, Parenting Education, Visitation
and Case Management.” The disposition orders also specified the conditions
Molly and the children’s father would have to meet before the children would be
returned to their home.

¶4 In November 2022, the County filed petitions seeking to terminate
Molly’s parental rights to Russell and Rebecca, as well as the rights of their

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father.2 As grounds for termination, the County alleged that both children were in
continuing need of protection or services. See WIS. STAT. § 48.415(2). To
establish this ground for terminating a parent’s rights, a petitioner must prove
three things by clear and convincing evidence: (1) “the child has been adjudged to
be a child … in need of protection or services and placed … outside his or her
home pursuant to one or more court orders … containing the notice required by
[WIS. STAT. §] 48.356(2)”; (2) “the agency responsible for the care of the child …
has made a reasonable effort to provide the services ordered by the court”; and
(3) “the child has been placed outside the home for a cumulative total period of 6
months or longer pursuant to an order listed under subd. 1. [and] the parent has
failed to meet the conditions established for the safe return of the child to the
home.” WIS. STAT. §§ 48.31(1), 48.415(2)(a)1.-3.

¶5 According to affidavits from a social worker that were attached to
the petitions, the County “ha[d] made a reasonable effort to provide the services
ordered by the court” but Molly had failed to meet the conditions for return.
Molly contested the petitions and asked for a jury trial.

¶6 Before trial, the County served requests for admission on Molly that
sought admissions related to the three elements. Molly, through her trial counsel,
responded to the requests and admitted that the County “made a reasonable effort
to provide the services ordered by the court.” She denied, however, the County’s
request seeking an admission that she had not met each of the conditions required
for the safe return of her children.

2
In Kenosha County Division of Children & Family Services v. R.M.F.,
Nos. 2023AP2156 & 2023AP2157, unpublished slip op. (WI App Feb. 21, 2024), this court
affirmed the circuit court’s orders terminating the father’s parental rights.

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¶7 Molly’s and the father’s cases were tried jointly in April 2023. In its
opening statement, the County discussed the three elements it had to prove. As to
the first element, the County told the jury that “[t]here is really no dispute” that
Russell and Rebecca had been placed outside of Molly and the father’s home
pursuant to a court order. Turning to the second element, the County invoked
Molly’s admission in addressing the County’s reasonable efforts to provide court-
ordered services:

The second question is going to be did the social
services agency make reasonable efforts to help the parents.

Now we asked this question of the mother, [Molly], as
part of the discovery process leading up to trial, and she
agreed that, yes, the social services agency has made
reasonable efforts. So with regard to the mother, the
answer to that question is “yes.”

Because, in the County’s view, the first two elements were undisputed, it
identified the third element—whether the parents had met the conditions of
return—as “really the only question that … is going to be in real dispute.”

¶8 Molly’s counsel offered a different view of the second element in his
opening statement. He acknowledged that “services were provided” to Molly by
the County but said that “[t]here were some services she believes that she did not
receive but we’ll have testimony and we’ll go into that.”

¶9 The County called Molly as its first witness. She acknowledged
receiving the dispositional order in March 2020 that warned her that her parental
rights could be terminated “if your children have been placed outside of the home
for six months or longer and the social workers have provided reasonable services
to you, and you haven’t met the conditions of this order for the return of your
children.” She also confirmed that she had reviewed the County’s requests for

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Nos. 2023AP2068
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admissions with her trial counsel and “did agree at the time” the responses were
provided “that the [County] ha[d] made reasonable efforts to provide the services
ordered by the [c]ourt”:

Q And in the process leading up to this trial your
attorney received some requests for admission
asking certain questions and ask[ed] you to admit
them, correct?

A Yes.

Q And one of them was to admit that the [County]
made a reasonable effort to provide the services
ordered by the [c]ourt; is that right?

A Yes.

Q And you and your attorney have admitted that the
[County] has made reasonable efforts to provide the
services ordered by the [c]ourt, correct?

A I did agree at the time.

Q Okay. And that was something that your attorney
and you went over and your attorney signed off on
March 13, 2023, just about a month ago, correct?

A Yes.

¶10 When questioned by her counsel, Molly testified she did not believe
at the time of trial that the County had made reasonable efforts to provide the
court-ordered services because it

failed to place [her] children within [her] family or consider
other possible placements and uphold sibling visitation
since [her] incarceration.[3] And eighteen months prior to
[her] being incarcerat[ed] [her] older girls were in
West Allis in a different foster home and had to have
separate visitations. So there was many reasons why [she]

3
Molly was incarcerated from September 23, 2021 through the time of trial.

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felt like the [County] did not make reasonable amount of
effort to help [her] with [her] conditions.

Molly also denied that she had ever seen the requests for admission and stated that
she and her counsel had reviewed them together over the phone. When asked
about her response to the request for admission regarding reasonable efforts,
Molly testified that she did not understand the request to encompass all of the
services the County had provided and restated her belief that the County did not
make “reasonable efforts to help [her] meet the conditions and meet all of them.”
Specifically, she acknowledged that the County facilitated visitation with her and
her children but testified that they denied her increased visitation because she had
not “made enough progress.”

¶11 On redirect examination, the County showed Molly the requests for
admission and her responses and confirmed she had admitted that the County had
made reasonable efforts to provide the court-ordered services. A short time later,
the County objected to continued questions about the requests by the father’s
counsel, arguing that Molly was “bound by that document by statute and it is
misleading to the jury” to suggest otherwise. The County cited WIS. STAT.
§ 804.11(2), which provides that a “matter admitted under this section is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission” and noted that Molly had not filed such a motion.
The circuit court, noting that Molly’s counsel had signed her responses to the
requests for admission, stated that it would receive them “under the general rule
that a client is bound by the statement of the attorney if made in the context of the
legal relationship but other evidence may be received on that subject” and that it
would rule on the question whether the admitted facts were conclusively
established if any party asked it to do so later in the case.

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¶12 The next day, Molly’s counsel moved to withdraw her admission to
the request about the County making reasonable efforts to provide court-ordered
services. Counsel explained that he had reviewed the request with Molly when it
was served but that with “more time to think about it and reviewing all the
information she basically changed her mind.” Counsel argued that “the [County]
would not be prejudiced [by] allowing the withdrawal [because] the jury still will
be able to hear and it’s the reasonableness of the services provided.”

¶13 The County opposed the motion, arguing that it would be prejudiced
by having to present evidence on an issue it did not learn Molly intended to
dispute until her trial testimony. It also argued that the reason Molly had given for
changing her mind—that the County had allegedly not done enough to place her
children with a family member—“is not a service ordered by the [c]ourt. It has
nothing to do with the court-ordered conditions of return.” In addition, the County
noted, that issue “ha[d] only arisen in the past month because there has been an
issue with regard to the foster home,” whereas the time frame applicable to the
County’s reasonable efforts “cuts off on the date of the filing of the termination of
parental rights petition,” which in Molly’s cases was November 2, 2022. The
County urged the circuit court to deny the motion and instruct the jury that the
answer to the question whether the County had made reasonable efforts is “yes.”

¶14 After the argument on Molly’s request, the County presented
testimony from the social worker assigned to Molly’s case, who testified about the
visitation services Molly received. The social worker explained that Molly began
with supervised visitations attended by a person from Children’s Hospital, as is
typical. Though the program is structured such that a parent can progress from
supervised to unsupervised visits, Molly remained in supervised visits until she
was incarcerated in September 2021, at which point the visits stopped. The social

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worker explained that Molly’s visits remained supervised because she made
inappropriate comments to Russell and Rebecca and did not discipline them
during the visits.

¶15 The following day, the court concluded that the County “[was]
correct on all points” and declined to allow Molly to withdraw her admission.
Consistent with its ruling, the circuit court answered “yes” to questions on the
verdict form pertaining to the first two elements of the continuing need of
protection or services ground as to Molly. Thus, the jury was required only to
answer the question as to the third element—whether Molly had failed to meet the
conditions for the safe return for her children. The jury concluded she had not met
the conditions for return. The court subsequently held a dispositional hearing at
which it determined that termination of Molly’s parental rights would be in the
children’s best interest.

¶16 Molly filed a postdisposition motion arguing that her trial counsel
was ineffective because he allowed her to admit in discovery that the County had
made reasonable efforts to provide court-ordered services and did not “follow the
correct procedure to withdraw the admission.” She asserted that her trial counsel
had never explained to her the meaning of “reasonable effort,” which is defined in
WIS. STAT. § 48.415(2)(a)2.a. to mean “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 …, the level of cooperation
of the parent[,] … and other relevant circumstances of the case.” Molly asserted
that she would have denied the admission had she been aware of this definition
and that there was a reasonable probability that, absent the admission, the jury
would not have determined that the County made reasonable efforts. The circuit
court denied Molly’s motion without holding an evidentiary hearing after

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Nos. 2023AP2068
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concluding that the motion had not established that any error by Molly’s trial
counsel had prejudiced her.4

DISCUSSION

¶17 Parents in termination proceedings have the right to effective
assistance of counsel. A.S. v. State, 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52
(1992). Ineffective assistance claims are typically evaluated under the two-part
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under that test,
Molly must establish that her trial counsel’s performance was deficient and that
the deficient performance prejudiced her. See id. at 687. If this court concludes
that Molly has not established one of these elements, it need not analyze the other.
See State v. Mayo, 2007 WI 78, ¶61, 301 Wis. 2d 642, 734 N.W.2d 115 (“[W]e
need not address both the performance and the prejudice elements, if the defendant
cannot make a sufficient showing as to one or the other element.”).

¶18 On appeal, Molly argues that the circuit court erred in denying her
postdisposition motion without holding an evidentiary hearing. “A hearing on a
[postdisposition] motion is required only when the movant states sufficient
material facts that, if true, would entitle the [movant] to relief.” State v. Allen,
2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433; State v. J.A.,
No. 2018AP1257, unpublished slip op. ¶39 (WI App Dec. 4, 2018) (applying
Allen standards to denial of postdisposition motion in termination of parental
rights proceeding).5 A court may deny a postdisposition motion without a hearing
4
The Honorable Gerad T. Dougvillo entered the order denying Molly’s postdisposition
motion.
5
Though unpublished, State v. J.A., No. 2018AP1257, unpublished slip op. (WI App
Dec. 4, 2018), may be cited pursuant to WIS. STAT. RULE 809.23(3)(b).

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“if the motion does not raise facts sufficient to entitle the movant to relief, or
presents only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief.” Allen, 274 Wis. 2d 568, ¶9. Whether a
motion alleges sufficient facts that, if true, would entitle the movant to an
evidentiary hearing presents a question of law that we review de novo. Id.

¶19 Initially, Molly argues that she should not have to prove prejudice
because her counsel committed a “fundamental” error “[b]y advising her to create
documentary evidence that resulted in a directed verdict on the otherwise disputed
question of reasonable efforts,” which Molly says resulted in the loss of her
“statutory right to a trial” on that element. In support, she cites our supreme
court’s decision in State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d
623. In that case, a circuit court found a parent in default for failing to appear
personally at several hearings in a termination proceeding and dismissed the
parent’s appointed counsel before conducting fact-finding and dispositional
hearings at which only the state’s lawyer and witness were present. Id., ¶¶13-18.
On review, our supreme court held that the circuit court had improperly denied the
parent her right to counsel under WIS. STAT. § 48.23(2), which constituted a
“structural error” because it “deprive[d] the parent of a basic protection without
which, according to our legislature, a termination of parental rights proceeding
cannot reliably serve its function.” Shirley E., 298 Wis. 2d 1, ¶63. Thus, the
court concluded, the error was “per se prejudicial” and not subject to review for
harmless error. Id., ¶¶61-62; see also Strickland, 466 U.S. at 692 (“Actual or
constructive denial of the assistance of counsel altogether is legally presumed to
result in prejudice.”).

¶20 This court concludes that Molly’s argument lacks merit for two
reasons. First, unlike the right to counsel in termination proceedings, Molly did

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not have an absolute right to have a jury decide whether the State had met its
burden as to each element of the continuing need of protection or services ground
for termination. That much is evident from our supreme court’s decision in Steven
V., where the court recognized that “[s]ummary judgment … is just as appropriate
in the unfitness phase of a TPR case where the facts are undisputed as it is in any
other type of civil action or proceeding which carries the right to a jury trial.”
Steven V., 271 Wis. 2d 1, ¶35. If a circuit court may conclude before trial in the
grounds phase that the facts material to a particular issue are not in genuine
dispute and grant summary judgment, it surely may reach the same conclusion
during the trial if the presentation of evidence reveals a similar lack of genuine
dispute.

¶21 Second, the asserted error in this case is materially less significant
than the complete denial of counsel in Shirley E. Molly was not completely
deprived of the assistance of counsel when responding to the County’s requests for
admission. To the contrary, as she acknowledged, she reviewed the requests with
her counsel, who subsequently prepared and served her responses. The alleged
error in admitting one of the requests is not “so fundamental that [it is] considered
per se prejudicial” because it did not “upset[] the framework within which trial
proceed[ed]”—it merely eliminated the need for a jury finding as to one element
of the ground at issue. See Shirley E., 298 Wis. 2d 1, ¶62. Thus, Molly remains
obligated to prove prejudice.

¶22 Turning to the issue raised on appeal, this court concludes that the
circuit court did not err in denying Molly’s postdisposition motion without first
conducting an evidentiary hearing. The record conclusively demonstrates that
Molly is not entitled to relief because she cannot establish that her trial counsel’s

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involvement in her pretrial admission that the County made reasonable efforts to
provide court-ordered services prejudiced her.

¶23 To establish prejudice, Molly must show that her trial counsel’s
“error[ was] so serious as to deprive [her] of a fair [proceeding] whose result is
reliable.” See Strickland, 466 U.S. at 687. To do so, Molly “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” See id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id.

¶24 Molly cannot establish prejudice because she cannot show a
reasonable probability that, had her counsel denied the County’s request for
admission regarding its reasonable efforts to provide court-ordered services (or
withdrawn her admission) before trial, the jury would not have concluded that the
County had established grounds for termination of her parental rights. In the
dispositional orders entered in March 2020, the circuit court ordered the County to
provide the following services to Molly: “Individual Therapy, Anger
Management Services, Psychological Evaluation/services, Random UA’s,
Parenting Education, Visitation and Case Management.” Each subsequent order
issued by the court until the County filed the termination of rights petitions
specified that the County had made reasonable efforts to provide those services.
The social worker also confirmed that she believed the County had made
reasonable efforts to provide the services.

¶25 Molly identified three reasons at trial for her belief that the County
had not made reasonable efforts to provide court-ordered services: (1) the
County’s failure to place her children with a member of her family or “consider

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other possible placements”; (2) the County’s failure to “uphold sibling visitation
since [her] incarceration”; and (3) the County’s placement of her “older girls” in a
different foster home that necessitated separate visitations. None of these reasons
would have furnished a basis for the jury to determine that the County did not
make reasonable efforts.

¶26 First, the County’s decision not to place Russell and Rebecca with a
member of Molly’s family was irrelevant to the issue of reasonable efforts
because, as the County noted at trial, it had not been ordered to place the children
with a family member. That placement decision was not among the services the
County had been ordered to provide to Molly. The same reasoning applies to the
County’s decision to place her other children in a different foster home from
Russell and Rebecca. Finally, Molly’s reference to the County not “uphold[ing]
sibling visitation” following her incarceration is unclear, but to the extent it refers
to the inability of her children to visit each other while she was incarcerated, that
too is not a service the County was ordered to provide. The County’s obligation
was to facilitate visits between Molly and her children.6

¶27 Molly does not raise any arguments concerning the other two
elements the County was required to prove to establish the children’s continuing
need of protection or services. Thus, she has not shown a reasonable probability
that the outcome of the trial in the grounds phase would have been different.

6
Molly points to her trial testimony that she requested additional visitation and argues
that the County’s failure to provide it was unreasonable. Given the extensive evidence regarding
Molly’s failure to progress during the visitation she received, and her failure to develop any facts
to the contrary, she has not shown prejudice and thus that she is entitled to relief.

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CONCLUSION

¶28 For the reasons stated above, this court concludes that the circuit
court did not err in denying Molly’s postconviction motion without an evidentiary
hearing because the record conclusively demonstrates that she is not entitled to
relief on her ineffective assistance claim.

By the Court.—Orders affirmed.

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

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