Waushara County DHS v. A. M. 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.
October 3, 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. 2024AP730 Cir. Ct. Nos. 2022TP5
2022TP6
2024AP731 2022TP7
2024AP732 2022TP8
2024AP733

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NO. 2024AP730
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.C.M.S.,
A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. M. S.,

RESPONDENT-APPELLANT.
Nos. 2024AP730
2024AP731
2024AP732
2024AP733

NO. 2024AP731
IN RE THE TERMINATION OF PARENTAL RIGHTS TO Z.S.,
A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. M. S.,

RESPONDENT-APPELLANT.

NO. 2024AP732
IN RE THE TERMINATION OF PARENTAL RIGHTS TO D.M.S.,
A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. M. S.,

RESPONDENT-APPELLANT.

NO. 2024AP733
IN RE THE TERMINATION OF PARENTAL RIGHTS TO I.R.V.E.,
A PERSON UNDER THE AGE OF 18:

WAUSHARA COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A. M. S.,
RESPONDENT-APPELLANT.

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APPEALS from orders of the circuit court for Waushara County:
GUY D. DUTCHER, Judge. Affirmed.

¶1 BLANCHARD, J.1 This is a consolidated appeal of circuit court
orders that terminated A.M.S.’s parental rights to four of her children, granting
petitions brought by the Waushara County Department of Human Services.
A.M.S. challenges rulings made during the grounds phase, in which a jury
returned verdicts in favor of the Department. A.M.S. specifically contends that the
court erred in making evidentiary rulings that prevented her from eliciting
testimony regarding: a grievance that A.M.S. filed with the Department against
some Department personnel; and A.M.S.’s past personal experiences, including
the fact that she herself had been deemed a child in need of protective services.
A.M.S. further argues that she is entitled to a new trial on the grounds phase
because her trial counsel rendered ineffective assistance during that phase. I reject
each of these arguments and accordingly I affirm the orders of the circuit court.

BACKGROUND

¶2 The termination of parental rights proceedings at issue in this appeal
are based on earlier “CHIPS” cases for the children referenced in the caption of
this appeal.2 In the CHIPS cases, the circuit court issued dispositional orders in

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.
2
“‘CHIPS’ is a commonly used acronym for ‘child in need of protection or services.”
Eau Claire Cnty. DHS v. S.E., 2020 WI App 39, ¶1 n.3, 392 Wis. 2d 726, 946 N.W.2d 155; WIS.
STAT. § 48.13. The CHIPS cases related to the termination of parental rights proceedings at issue
in this appeal were also held in the Waushara County Circuit Court.

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November 2020 removing the children from the home of A.M.S. The
dispositional order regarding the oldest child only was revised in February 2021.
The dispositional orders for all four children were revised in February 2022. Each
of the initial and revised dispositional orders contained conditions that needed to
be met before the children could be returned to A.M.S.’s home. These orders also
directed the Department to “make reasonable efforts to provide services” to
A.M.S. “that assist [her] in meeting the conditions” to return the children, either
by directly providing services to her or by referring her to one or more service
providers not employed by the Department.

¶3 In December 2022, the Department filed petitions to terminate
A.M.S.’s rights to the children.3 For each petition, the Department alleged the
“continuing CHIPS” grounds as the sole basis for termination. See Eau Claire
Cnty. DHS v. S.E., 2020 WI App 39, ¶1 n.3, 392 Wis. 2d 726, 946 N.W.2d 155;
WIS. STAT. § 48.415(2). This was based in part on the Department’s factual
allegations that: each child had remained placed outside of A.M.S.’s home for a
cumulative total of more than six months following the issuance of the CHIPS
orders in November 2020; the Department “made reasonable efforts to provide”
A.M.S. services ordered by the CHIPS court; and A.M.S. failed to meet several of

3
Termination of parental rights proceedings involve two phases, the “grounds phase”
and the “disposition phase.” See Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶10 n.10, 293
Wis. 2d 530, 716 N.W.2d 845. At the grounds phase, the trier of fact determines whether
grounds exist to terminate a parent’s rights to his or her child. See id. During this phase, “‘the
parent’s rights are paramount’” and the government bears the burden of proof. See id. If the
grounds for termination are found to be proven, the circuit court finds the parent “unfit” and
proceeds to the disposition phase. See id.; WIS. STAT. § 48.424(4). At the disposition phase, the
court “determines whether it is in the child’s best interest to terminate parental rights.” See
Jodie W., 293 Wis. 2d 530, ¶10 n.10; WIS. STAT. § 48.427. As noted, A.M.S.’s arguments on
appeal implicate only the grounds phase.

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the conditions set by the CHIPS orders for return of the children to A.M.S.’s
home. See § 48.415(2)(a).4

¶4 In October 2023, a jury trial was held regarding the grounds alleged
in the termination of parental rights petitions. See WIS. STAT. §§ 48.415 [intro],
48.424(1)(a). The Department called A.M.S. as a witness. The Department also
called six Department employees, including multiple social workers who worked
with A.M.S. during the pertinent period of out-of-home placement for her
children, along with supervisors of those social workers.

¶5 During A.M.S.’s cross-examination of one of the Department
supervisors, A.M.S. attempted to elicit testimony regarding the effects that out-of-

4
To prove this ground for termination of parental rights, the Department bore the burden
to prove the following, given that there is no dispute that the children were placed outside of
A.M.S.’s home for more than 15 months out of the 22 months immediately preceding the filing of
petitions to terminate parental rights:

(1) [That] “the child has been adjudged to be a child or
an unborn child in need of protection or services and placed, or
continued in a placement, outside his or her home” for a
cumulative total period of six months or longer pursuant to one
or more court orders under one of the enumerated statutory
sections;

(2) [That] “the agency responsible for the care of the
child and the family [i.e., the Department] …. has made a
reasonable effort to provide the services ordered by the court”;
[and]

(3) [That] “the parent has failed to meet the conditions
established for the safe return of the child to the home” ….

See La Crosse Cnty. DHS v. Tara P., 2002 WI App 84, ¶8, 252 Wis. 2d 179, 643 N.W.2d 194
(quoting WIS. STAT. § 48.415(2)(a)2.b. and 3.); see also WIS JI—CHILDREN 324. As discussed in
more detail below, at trial A.M.S. disputed only the second of these elements, “reasonable effort”
by the Department.

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home placement can have on CHIPS children generally and regarding A.M.S.’s
background as a former CHIPS child. The circuit court sustained objections by
the Department and guardian ad litem based on lack of relevance and foundation.

¶6 Later during the trial, counsel for A.M.S. recalled A.M.S. to the
stand. Trial counsel sought to elicit testimony from her about her past interactions
with the child protective services system. The Department objected based on a
lack of relevance, and the circuit court sustained this objection. The court further
ruled that A.M.S. could not testify regarding her “interactions with the
[D]epartment” or other “authorities” that occurred before the initiation of the cases
involving her children.

¶7 A.M.S. further sought to call a Department employee who served as
a “grievance officer” for the Department. This person investigates grievances of
the type that A.M.S. filed in these cases. The Department and guardian ad litem
for the children objected. Trial counsel for A.M.S. provided a proffer to the circuit
court about the testimony she sought to elicit and conducted a voir dire of the
prospective witness. The court sustained the objections and excluded the
grievance officer’s proffered testimony. A.M.S. did not call any additional
witnesses.

¶8 The jury returned verdicts that the Department met its burden
regarding each of the elements of the continuing CHIPS ground for each of the
children. As a result, the circuit court found A.M.S. unfit as a parent for each
child.

¶9 The circuit court held a hearing to determine whether to terminate
A.M.S.’s parental rights regarding the children. The court found that it was in the

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best interests of the children to terminate A.M.S.’s parental rights, and entered
orders to that effect.

¶10 In June 2024, A.M.S. filed a post-disposition motion for a new
grounds phase trial. The basis of the motion was A.M.S.’s claim that she received
ineffective assistance of trial counsel. Specifically, she argued that her trial
counsel performed deficiently in making an inadequate offer of proof in support of
the admission of the grievance officer’s proffered testimony. A.M.S. argued that
this prejudiced her because it led to the circuit court excluding the officer’s
proffered testimony, which she contended deprived her of evidence that was
significant to her defense and that would counter part of the Department’s case.

¶11 The circuit court held a postdisposition hearing at which A.M.S.’s
trial counsel testified as the sole witness. The court rejected A.M.S.’s ineffective
assistance arguments and denied the motion for a new trial. A.M.S. appeals.

DISCUSSION

¶12 A.M.S. challenges the circuit court’s evidentiary rulings during the
grounds phase trial to exclude the grievance officer’s proffered testimony and to
limit her ability to elicit testimony regarding her experiences as a child in need of
protection and services. A.M.S. further argues that the court erred in rejecting her
post-disposition contention that her trial counsel was ineffective in arguing for the
admission of the grievance officer’s proffered testimony.

I. Exclusion of Evidence

¶13 Circuit court decisions to admit or exclude evidence are reviewed
under an erroneous exercise of discretion standard. See La Crosse Cnty. DHS v.

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Tara P., 2002 WI App 84, ¶6, 252 Wis. 2d 179, 643 N.W.2d 194 (citing Morden
v. Continental AG, 2000 WI 51, ¶81, 235 Wis. 2d 325, 611 N.W.2d 659).
Appellate courts “will not upset a circuit court’s decision to admit or exclude
evidence if the decision has ‘a reasonable basis’ and was made ‘in accordance
with accepted legal standards and in accordance with the facts of record.’” See id.
(quoted source omitted).

¶14 Each of the evidentiary challenges brought by A.M.S. relate to the
relevancy of particular pieces of testimony to the issues raised in the grounds
phase trial. Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” See WIS. STAT. § 904.01;
Tara P., 252 Wis. 2d 179, ¶13. Here, to repeat, the sole ground pursued by the
Department was “continuing CHIPS,” and A.M.S. disputed at trial only one
element that is needed to prove this ground. Thus, the facts of consequence in
these cases all related to the following question: Did the Department make a
“reasonable effort to provide the services ordered by the court” in the CHIPS
orders? The legislature has defined “reasonable effort” in this context 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.

WIS. STAT. § 48.415(2)(a)2.a.; see also WIS JI—CHILDREN 324.

¶15 Thus, at the trial here, evidence that was relevant to the only
disputed topic, whether the Department made a “reasonable effort,” was
“generally admissible.” See WIS. STAT. § 904.02. At the same time, a circuit

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court may exclude relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” See WIS. STAT. § 904.03.

A. Exclusion of Grievance Officer’s Proffered Testimony

¶16 The circuit court excluded proffered testimony by the Department
grievance officer on the ground that A.M.S. failed to provide the court with
sufficient foundational facts to show how the proffered testimony would be
relevant. A.M.S. argues that this was an erroneous exercise of discretion because,
under the proffer that she made, the testimony would have helped her to show that
the Department failed to make a “reasonable effort” to provide the ordered
services to A.M.S.

¶17 At the trial for the grounds phase, each of the Department employee-
witnesses testified that A.M.S. was a “challenging” or “difficult” parent to work
with, including when they tried to offer her services. For example, one social
worker testified that it could be difficult to communicate with A.M.S. because her
contact information frequently changed, and that A.M.S. had trouble tracking or
recalling the reason for a particular meeting or call. Another social worker
testified that A.M.S. would sometimes miss meetings or, when she did attend, she
would yell at the social worker.

¶18 A.M.S. testified in part that, when she was “having communication
issues” with Department personnel, she would file grievances through the
Department’s grievance procedure.

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¶19 Later during the trial, A.M.S. sought to call the Department
grievance officer. The Department and guardian ad litem objected to this
testimony. Counsel for A.M.S. proffered that the officer should be allowed to
testify to “his role … in reviewing [and] responding to grievances,” and the
recommendation that he made to the Department to transfer the cases involving
A.M.S. to the department of human services for another county, based on one of
A.M.S.’s grievances. Counsel explained that, with this limited target for
testimony, counsel would not elicit testimony about A.M.S.’s “specific
allegations” made as part of any of her grievances, including the one that resulted
in the recommendation to transfer. Regarding concerns over a sufficient
“foundation” for this testimony, counsel contended that reviewing and making
recommendations based on grievances was part of the officer’s “role and
responsibilities” in “the normal course” of his work for the Department.

¶20 The circuit court directed A.M.S. to conduct a voir dire of the
grievance officer. The grievance officer testified to the following. Under
Department policy, when a parent submits a grievance, the officer has 30 days to
investigate it and write a reply that contains recommendations. Pertinent here, the
officer reviewed a written grievance submitted by A.M.S. dated May 20, 2022
(“the May 2022 grievance”), investigated it, and made the written

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recommendation for the Department “to consider transferring” the cases out of the
county.5

¶21 The circuit court sustained the objections of the Department and the
guardian ad litem. Outside the presence of the jury, the court noted in part that it
had not been presented with the content of the May 2022 grievance, nor about
what “investigative processes” the officer actually undertook in response to any of
A.M.S.’s grievances, including the May 2022 grievance. The court further said
that “getting into” the topic of the May 2022 grievance at trial would “open the
door to examination of the entire grievance,” not necessarily only those aspects
that A.M.S. wanted to highlight. The court continued:

I’m unable to evaluate the admissibility of the [May 2022]
grievance itself, which I think would be a precursor to
evaluating evidence concerning this witness’s conclusion
about what responsibly ought be done [in response] to the
grievance. I don’t even, at this point, know whether the
grievance pertains to the circumstances that are alleged to
be present in this case, as there are circumstances … where
I could easily see that a grievance may be filed that has to
do with something that is attenuated or totally unrelated to
whatever it is in this case…. And, absent [a] foundation
being established, absent the Court having the ability to
evaluate what … the grievance was, what the
circumstances were, what the investigative protocols were
that were followed or not followed, whatever conclusions
this witness may have made in response to those, I am not
in a position where I can do anything other than to sustain
the objection ….

5
While the record may be ambiguous on the point, I assume in A.M.S.’s favor that the
circuit court would have most reasonably understood the grievance officer’s voir dire testimony
that he recommended that the Department “consider transferring” the cases to mean the
following: the officer in fact recommended that a transfer would be the best course of action for
the Department, and not that the officer merely recommended that the Department take an initial
step of evaluating a possible transfer, with the officer not favoring or disfavoring transfer.

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¶22 With this background in mind, I conclude that the circuit court
reasonably applied pertinent legal principles to the limited facts before it in
deciding to exclude the proffered testimony. As the court emphasized, it was not
presented with evidence regarding the content of the May 2022 grievance, or
materials (if any) related to the officer’s investigation of the May 2022 grievance
and the officer’s report. In the absence of such materials, it was reasonable for the
court to determine that A.M.S. failed to show that the officer’s ultimate
recommendation regarding the May 2022 grievance was relevant to the issue of
whether the Department made a reasonable effort to provide the ordered services
to A.M.S. Put differently, it is not clear from the proffered testimony the degree to
which the May 2022 grievance involved issues specifically relevant to the only
disputed issue at trial, as opposed to unrelated topics.

¶23 Further, the circuit court’s comments regarding a lack of a
“foundation” reflect reasonable concerns based on the lack of evidence regarding
how the grievance officer reached his recommendation to transfer the cases. To
cite one notable example of the potential significance of the lack of evidence
regarding the May 2022 grievance or how it was investigated, the court could not
evaluate whether the officer’s proffered testimony constituted admissible lay or
expert opinion testimony. More generally, it was not clear from what was
presented to the court how the grievance officer’s proffered testimony would have
assisted the jury in evaluating anything about the Department’s effort to provide
ordered services. See WIS. STAT. §§ 907.01-.02.

¶24 On appeal, A.M.S. merely provides conclusory assertions that the
grievance officer’s proffered testimony had some tendency to make it more or less
probable that the Department did not make an “earnest and conscientious effort to

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take good faith steps” to provide services as required under WIS. STAT.
§ 48.415(2)(a). She also asserts that the grievance officer’s recommendation was
“the most important part[] of his testimony, and the seminal fact[] that [A.M.S.]
sought to present to the jury.”6 These assertions fail because A.M.S. fails to
squarely address the circuit court’s reasoning, which is readily supported by the
record.

¶25 Moreover, even if the jury could fairly consider the recommendation
standing alone to have probative value, the court’s basis for excluding the officer’s
proffered testimony was reasonable under WIS. STAT. § 904.03. The court could
reasonably deem the probative value of the recommendation, in the absence of
facts supporting the recommendation, as low and even potentially detrimental to
A.M.S.’s defense. In that case, the probative value was unlikely to “substantially
outweigh[] the danger of unfair prejudice” or “confusion of the issues.” See
§ 904.03.

B. Exclusion of Testimony Regarding A.M.S.’s Condition

¶26 A.M.S. argues that the circuit court clearly erred in barring her from
eliciting testimony relating to the fact that A.M.S. was herself once a child in need
of protection or services. Her argument is that the jury should have had an
opportunity to evaluate whether this status or background could have played a role
in the alleged failure of the Department to meet its obligations to make a
6
A.M.S. also contends that the grievance officer’s “conclusion” was an important piece
of his testimony and a “seminal fact[],” but A.M.S. does not explain what “conclusion” she is
referring to. To the extent that she means to suggest that the circuit court was presented at trial
with factual findings or conclusions underlying the officer’s recommendation to transfer the
cases, this is unsupported by the reference that A.M.S. makes to the record.

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reasonable effort in offering ordered services to her. See WIS. STAT.
§ 48.415(2)(a)2.a. (“tak[ing] into consideration the characteristics of the parent” is
part of the definition of “reasonable effort” required under continuing CHIPS
ground). A.M.S. specifically contests the court’s rulings excluding testimony on
this topic that she sought to elicit in cross-examination of a Department supervisor
and in A.M.S.’s own testimony.

¶27 On cross-examination, one of the Department supervisors testified
that the supervisor had received continuing education “on trauma-informed”
services and “children in [child protective services] situations in out-of-home
placements.” A.M.S.’s trial counsel then asked about the effects on children that
being placed out of the home can have, to which the supervisor responded:

So a child being placed outside of the home can … be a
traumatic experience for the child, unfortunately, if they are
not placed with relatives and they are placed with someone
who is unknown. They have to … live with someone who,
essentially, they are not familiar with, and [in] their world
could be identified as a stranger for them. So, absolutely,
that can be confusing, and it can be traumatic for a child
sometimes, yes.

Counsel asked what that circumstance can lead to, and began to ask whether this
can “make it hard for a child to trust—?” At this point, the guardian ad litem
objected to this line of questioning as “outside the scope of the proceedings,” and
the Department joined the objection.

¶28 Counsel for A.M.S. took the position that the proposed line of
questioning was intended to elicit testimony about the Department supervisor’s
“expertise in the area … and how that guided services that were provided” to
A.M.S. The circuit court sustained the objections on the ground that the proposed

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line would be unrelated to the “limited” topic of the hearing, which was “the
existence of the [CHIPS] orders, compliance with the orders, and efforts
reasonably made to facilitate or assist compliance with the orders.”

¶29 A.M.S.’s counsel resumed cross examination of the Department
supervisor as follows:

Q. So with your experience with … these particular
cases and with [A.M.S.], per the documentation and the
orders that had been provided in this case, you were aware
that [A.M.S.] had, in fact, also been a child in need of
protection or services; correct?

A. I was aware.

Q. So with your training in trauma-informed
services, how did that guide your interactions with
[A.M.S.]?

A. So in my interactions with [A.M.S.], I tried to
have a calm demeanor in speaking with her, really listen,
and allow her to speak, and offer … suggestions, or if she
needed more information, to provide her with that
information, to really have conversations about the
available resources to her and provide her with that
information.

Q. So isn’t it true, though, that … her past
experiences may have made it harder for her to engage with
the [D]epartment?

The supervisor answered, “yes,” and the guardian ad litem and County again
objected. A.M.S.’s counsel argued that this questioning was relevant to “whether
or not the [D]epartment made reasonable efforts, in light of this particular
situation.”

¶30 The circuit court sustained the objections. The court explained its
reasoning this way:

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The line of questioning is clearly intended to elicit
information that is reflective upon issues that are not before
us, are intended to call into question concerns that are not
appropriately being addressed at this stage of the
process.…. It is not relevant and also would appear to the
Court that, even if it were [relevant,] … to lack the
requisite level of foundation; but I sustain the objection
principally upon relevance, and we are moving into an area
that is broaching upon nullification.

Counsel’s cross-examination moved on to other topics, and counsel did not
attempt to cross-examine other Department witnesses on the topic.

¶31 When A.M.S. was recalled to the stand, her counsel elicited
testimony regarding traumatic events that A.M.S. had undergone in 2020 alone: in
April of that year, her fiancé, the father of three of the children, was murdered; in
June, one of the children was born; and in July, three of the children were placed
outside the home under the pertinent CHIPS orders. When asked about whether
she was suffering “mental health issues” as a result of these events, A.M.S.
testified that she was experiencing “[a] lot” of issues, namely “postpartum
depression, grief,” and issues relating to “childhood traumas.” Counsel then asked
whether A.M.S.’s work with the Department pursuant to the CHIPS orders was
her “first encounter” with the child protective services system. The Department
objected based on relevance, and the circuit court sustained the objection.

¶32 A.M.S.’s counsel requested a sidebar at which she took the position
that A.M.S.’s “history of … trauma” was relevant to the testimony by Department
employees that A.M.S. was difficult to work with. The Department and guardian
ad litem argued that the timeframe relevant to the grounds phase of the
proceedings consisted only of the time from entry of CHIPS orders until the filing
of petitions to terminate parental rights. Thus, they argued, A.M.S.’s experiences

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from well before this period and the death of her fiancé were “irrelevant” and
would serve only to “prejudice the [j]ury.”

¶33 The circuit court affirmed its ruling sustaining the objection. The
court said that admission of testimony about A.M.S.’s experience as a child in
need of protection or services would open wide a “Pandora’s box” of otherwise
inadmissible evidence about “the nature and substance of the interactions that have
been conducted with [A.M.S.] on prior occasions.” The court also deemed such
evidence “[i]rrelevant.” The court expressed a concern that such evidence would
“have a substantial likelihood of being highly prejudicial” “to both parties,” what
the court characterized as a “double-edged sword.” Specifically, the court
reasoned that the Department might seek to introduce in rebuttal potentially
relevant evidence regarding A.M.S.’s past experiences that “would have a
substantial likelihood of being highly prejudicial to her.”

¶34 Accordingly, the circuit court ruled that A.M.S. could “testify as to
what her belief and [what] her conditions [ordered in the CHIPS cases] were and
the circumstances that she confronted,” but she was barred from testifying about
“her interactions with the [D]epartment on prior occasions and interactions that
she may have had with the authorities on prior occasions.” The court further
explained that A.M.S. could testify about “where she found herself emotionally
and in other ways during the times that she was asked to comply with [the CHIPS]
orders,” but that she could not testify about “circumstances that predated the entry
of the orders and the interactions that had led to” the filing of the orders.

¶35 With this added background in mind, I conclude that the circuit court
properly exercised its discretion in making the rulings challenged by A.M.S. based

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on the record before it. The court could reasonably conclude that neither line of
questioning was relevant to the issue of whether the Department had made a
reasonable effort to provide ordered services. Regarding the Department
supervisor cross-examination, counsel for A.M.S. provided only a general,
conclusory proffer of relevance of testimony regarding “trust issues” that former
CHIPS children might often harbor. The court could only speculate regarding the
possibility of “trust issues” that might arise for parents working with county
human services departments when the parent was formerly a child in need of
protection or services, and further, how any such trust issues might inform what
the Department is obligated to take into account in making a “reasonable effort”
under WIS. STAT. § 48.415(2)(a). It was reasonable for the court to require A.M.S.
to more clearly preview, for purposes of this particular set of cases, how that
factual link could be made before allowing her counsel to take a witness into a
potential confusing and prejudicial area.

¶36 Similarly, A.M.S. did not provide the circuit court with a clear
connection between her own potential testimony regarding her past experiences
and traumas and a relevant fact of consequence to the only disputed issue at trial.
At bottom, the court was left to speculate about the existence of a specific
inferable link between the traumatic experiences that A.M.S. was able to testify
about and alleged Department failures to make a reasonable effort to provide
services.

¶37 Moreover, as the circuit court explained in both its rulings, even if
the excluded testimony had some foreseeable probative value to the reasonable
effort issue, it was reasonable for the court to determine that the danger of unfair
prejudice or confusion of the issues substantially outweighed this value. Implied

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in the court’s reasoning is that the proposed testimony could in each instance have
had only minimal probative value on any relevant point. Against this low level of
probative value, the court reasonably identified dangers of substantial prejudice to
both parties or of confusion by the jury.

¶38 Expanding on this last point regarding the supervisor’s testimony
about children in need of protection or services generally, A.M.S. identifies no
flaw in the circuit court’s apparent concern over unfair prejudice that the court
weighed against the probative value of the evidence. There was a reasonable basis
for the court to be concerned about allowing testimony regarding the trauma that is
often experienced by children who are placed outside of a parent’s home, because
here it was undisputed that the Department had placed the children in separate
homes under the CHIPS orders. This could tend to prejudice the jury against the
Department based on a nullification rationale.

¶39 Further, putting to the side an ineffective assistance of counsel
argument that I address below, A.M.S. does not squarely address the circuit
court’s concern about the potential for A.M.S.’s proffered testimony to unfairly
prejudice her. That is, she does not challenge the reasoning of the court that
eliciting such testimony would open the door to the Department to explore the
topic of A.M.S.’s past, or in the alternative for the jury to unfairly issue verdicts
based purely on sympathy for A.M.S.

¶40 A.M.S. makes the observation that, as provided by WIS. STAT.
§ 48.415(2)(a)2.a., what constitutes a “reasonable effort” by a responsible agency
such as the Department will vary depending on the characteristics of the parent.
For example, reasonable effort with respect to a blind parent will be in some

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respects different than for one who is not seeing-impaired. Using this a conceptual
starting point, A.M.S. contends that whether the Department’s effort was
reasonable depends on whether it took into consideration A.M.S.’s condition as a
former child in need of protection or services and the “trust issues” this could
cause.

¶41 I assume without deciding that a parent’s former status as a child in
need of protection or services could be relevant to a lack-of-reasonable-effort
defense in some cases. Here, however, the circuit court was not presented with a
clear theory, rooted in available evidence that A.M.S. sought to elicit, of how that
status should have informed the Department’s approach to providing ordered
services to A.M.S.7 While it was the Department’s burden to prove its cases, see
WIS. STAT. § 48.31(1), A.M.S. bore the burden of establishing the admissibility of
the testimony she sought to introduce, see State v. Payano, 2009 WI 86, ¶68 n.14,
320 Wis. 2d 348, 768 N.W.2d 832.

¶42 Left unanswered by A.M.S. is what the Department should have
done but did not do based on A.M.S.’s past traumas. She asserts that A.M.S.’s
CHIPS-based trust issues constituted “unique characteristics” that the jury “had to
fully learn about” in order to “evaluat[e] whether the [D]epartment” took A.M.S.’s

7
It is true that, before the circuit court sustained objections, the supervisor briefly
testified to some measures she would take in working with A.M.S. based on A.M.S. having been
a child in need of protection or services. As noted, this included the supervisor testifying that the
supervisor employed a “calm demeanor” with A.M.S. However, neither at trial nor on appeal
does A.M.S. articulate how any of the measures briefly testified to by the supervisor connected to
any relevant point that A.M.S. sought to introduce at trial. A.M.S. does not point to additional
measures she would have inquired about if the court had not made the challenged evidentiary
rulings, nor does she explain how any ruling of the court prevented her from asking Department
employee-witnesses a wide range of questions about how they interacted with A.M.S.

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condition into account in making the effort to provide her with services. But
A.M.S. does not explain what more the jury would have learned if additional
testimony had been provided by the Department supervisor or A.M.S. Put
differently, the circuit court, in making the challenged evidentiary decision, lacked
a basis to credit her assertion that A.M.S.’s past trauma and experiences and
resulting trust issues made it more probable that the Department did not make a
“reasonable effort.”

¶43 A.M.S. argues that the circuit court made a mistake of law in
concluding that any events testified to that occurred before the filing of the CHIPS
orders were categorically inadmissible. Such a ruling, she notes, would be
contrary to Tara P., which states in pertinent part that “facts occurring prior to a
CHIPS dispositional order are frequently relevant to the issues at a termination
proceeding,” including to the issue of whether “facts occurring prior to a CHIPS
dispositional order are frequently relevant to the issues at a termination
proceeding.” See Tara P., 252 Wis. 2d 179, ¶¶10, 14 n.4. It is true that the court
barred A.M.S. from testifying about “circumstances that predated the entry of the
[CHIPS] orders.”

¶44 But A.M.S. does not persuade me that, in doing so, the circuit court
based its order solely on the timing of events, or that the court’s references to
timing signaled a material misunderstanding about facts relevant to the court’s
decision. As the Department notes on appeal, this court emphasized in Tara P.
“that just as there is no blanket prohibition on evidence of events prior to a
dispositional order, our present holding does not provide blanket authority for its
admission.” See id., ¶20. As an example, this court noted that “evidence may be
excluded on relevancy grounds in light of the particular facts of a case.” Id. For

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the reasons noted above, it was reasonable for the court here to rule that the
evidence predating the CHIPS orders that A.M.S. sought to introduce in this set of
cases was inadmissible for lack of relevancy established under the facts here, or
alternatively based on dangers of unfair prejudice or issue confusion.8

II. Ineffective Assistance of Counsel

¶45 Parents subject to termination of parental rights proceedings have a
right to effective assistance of counsel. See A.S. v. State, 168 Wis. 2d 995, 1004,
485 N.W.2d 52 (1992); WIS. STAT. § 48.23(2). A parent claiming ineffective
assistance of counsel must show both that counsel performed deficiently and that
this performance prejudiced the parent’s defense. See A.S., 168 Wis. 2d at 1005
(adopting as standards for termination of parental rights context the standards of
ineffective assistance claims in the criminal context under Strickland v.
Washington, 466 U.S. 668 (1984)). Deficient performance is that which falls
below “objective standards of reasonableness.” Amy W. v. David G., 2013 WI
App 83, ¶10, 348 Wis. 2d 593, 834 N.W.2d 432 (citing Strickland, 466 U.S. at
687, 690). Establishing prejudice requires showing that counsel’s performance
created “a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” See id. (citing Strickland, 466 U.S. at
694).

8
Because I conclude that the circuit court did not err in any of the challenged trial
rulings, I do not address the parties’ arguments regarding whether any such error was harmless
except to the extent the parties incorporate such arguments into their discussion of A.M.S.’s
ineffective assistance of counsel claim addressed in the text below.

22
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¶46 “This court will uphold the circuit court’s findings of fact … unless
they are clearly erroneous.” See State v. Domke, 2011 WI 95, ¶33, 337 Wis. 2d
268, 805 N.W.2d 364. “Whether counsel’s performance constitutes
constitutionally ineffective assistance of counsel … presents a question of law that
this court decides de novo.” Id.

¶47 A.M.S. argues that she received ineffective assistance of trial
counsel because counsel did not present the circuit court with the grievance
officer’s report in support of admitting his testimony. This was deficient, she
argues, because the report would have refuted the court’s grounds for excluding
the officer’s proffered testimony. A.M.S. further contends that this failure by trial
counsel undermines confidence in the trial outcome for the following reasons:
The grievance officer’s proffered testimony, as supported by the report, would
have bolstered A.M.S.’s trial defense that the Department did not make a
reasonable effort to provide ordered services and counteracted evidence elicited by
the Department that A.M.S. was “difficult” to work with.

¶48 A.M.S.’s trial counsel testified as follows at the postdisposition
hearing. Before trial, counsel reviewed the grievance officer’s reports, and made
the decision to seek to introduce testimony regarding the officer’s decision to
recommend that the Department transfer A.M.S.’s cases, which was reflected in
the officer’s report on the May 2022 grievance. Counsel did not remember if she
considered providing the report to the circuit court as part of her proffer, nor did
she recall if she had “a strategic or tactical reason” for not doing so. Despite this
lack of recollection, trial counsel testified that she intended to introduce some of
the contents of the report at trial through the officer’s testimony.

23
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¶49 The grievance officer’s report itself was submitted to the circuit
court as an exhibit to A.M.S.’s postdisposition motion and an exhibit at the
hearing on the motion. The report reflected the following:

 A.M.S. submitted “grievance forms” to the officer in
May 2022. These forms “detail[ed]” various events
that apparently formed the basis for the May 2022
grievance (some of which were testified to at trial but
others were not).

 The officer met with A.M.S. to discuss her grievance in
June 2022. The officer reviewed “Child Protective
Services records … dating back to July 2020,” and the
officer interviewed Department staff regarding the
events identified by A.M.S.’s grievance.

 The officer identified “patterns” of behavior by A.M.S.
through the records reviewed by the officer. Based on
some of this behavior, the officer opined that A.M.S.
“had deep seeded resentments toward the
[D]epartment.” Noted patterns of behavior included
using “raised voice and profanity towards staff to the
point where staff become anxious and scared to
continue to provide you services.” The report
characterized this behavior as “verbally abusive,”
which it defined in part to be “a range of words or
behaviors used to manipulate, intimidate, and maintain
power and control over someone.”

 The officer made the final recommendation to, “as soon
as possible,” transfer A.M.S.’s case to another county
pursuant to “Federal Guidelines.” This was because
“trust and objectivity has been lost on both sides.”

The report is undated, but the record suggests that it was circulated several months
before the Department filed the petitions to terminate A.M.S.’s parental rights.

¶50 I conclude that A.M.S. fails to establish that her counsel performed
deficiently. Trial counsel’s conduct in pursuing the admission of the grievance
officer’s testimony fell within “what a reasonably competent defense attorney
could have done” under the circumstances. See State v. Jackson, 2011 WI App

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63, ¶9, 333 Wis. 2d 665, 799 N.W.2d 461. As noted above, the circuit court made
the determination at trial that admitting testimony about the grievance officer’s
recommendation to transfer A.M.S.’s cases would “open the door to examination
of the entire grievance.” The content of the report contained information that
might have been potentially useful to A.M.S.’s defense but also other information
that potentially supported the Department’s positions in these cases or was
otherwise prejudicial to A.M.S. For example, the officer’s analysis of records and
interviewing of Department staff to determine whether A.M.S. displayed a pattern
of “verbal abuse” would have put the officer’s recommendation to consider
transferring the cases in a light that was detrimental to A.M.S.; this would have
reinforced the Department’s ability to show that the Department made a
reasonable effort when one takes into account A.M.S.’s purported low level of
cooperation. See WIS. STAT. § 48.415(2)(a)2.a. (making “the level of cooperation
of the parent” part of the meaning of “reasonable effort”). Given these
circumstances, counsel’s decision to not further pursue the officer’s testimony
through submission of the report to the court was not outside the range of what a
reasonably competent attorney would do.

¶51 On appeal, A.M.S. emphasizes the ways in which the grievance
officer’s recommendation and some information within the report could have
supported the defense that the Department did not make a “reasonable effort” to
provide A.M.S. with ordered services. She highlights potential inferences from
the report and a recommendation that A.M.S.’s friction with the Department was
due to a conflict with Department personnel for which both sides shared blame—a
conflict that demonstrated the Department’s failure to reasonably tailor its work
with A.M.S. to her particular characteristics. But A.M.S. fails to show that trial

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counsel was required to weigh the potential for these favorable inferences more
heavily than the risk of exposing the jury to negative inferences for A.M.S.
regarding her purported failure to cooperate.

¶52 A.M.S. contends that the contents of the grievance report that were
potentially harmful to her at trial had already been introduced through the
testimony of other Department employees. Thus, the argument goes, counsel
should not have considered the risk of negative inferences significant. It is true
that some information in the report that reflected poorly on A.M.S. was testified to
by Department witnesses. But the factual bases for the grievance officer’s
recommendation reflected in the report were additional, and vivid, in describing
A.M.S.’s conduct in ways that could support relevant inferences in favor of the
Department’s positions in these cases. After all, the grievance officer had the role
of an investigator. There would have been at least a reasonable inference that the
officer properly determined that A.M.S.’s reportedly aggressive and hostile
conduct was going to spoil the relationship regardless of how reasonable the
Department’s effort was in providing ordered services to her. The report went
beyond the testimony provided by Department employees that A.M.S. was
“challenging” and “difficult,” describing A.M.S.’s behavior as verbally abusive
and severe enough to make Department employees anxious about having to work
with her in person.9

9
The parties dispute a related issue that I do not resolve because A.M.S. fails to develop
her side with arguments supported by legal authority. The Department argues that much of the
report’s contents would be inadmissible as hearsay. In reply, A.M.S. contends that, if the
grievance officer’s report had been provided to the circuit court as part of the proffer, this would
not have resulted in the grievance officer testifying to the jury regarding details contained in the
report. A.M.S. may further intend to contend that some of the information in the report that
(continued)

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¶53 In her reply brief, A.M.S. emphasizes that trial counsel testified in
the postdisposition hearing that her decision not to provide the grievance report to
the circuit court during the proffer was not based on any strategic consideration
that counsel could recall. But “[d]eficient performance is judged by an objective
test, not a subjective one”—if counsel’s conduct falls within reasonable bounds, it
is not deficient, “regardless of [his or her] thought process.” See Jackson, 333
Wis. 2d 665, ¶9.

CONCLUSION

¶54 For all of these reasons I affirm the orders of the circuit court.

By the Court.—Orders affirmed.

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

would have undermined her defense would not have been admissible. However, neither A.M.S.
nor the Department provide developed arguments on these admissibility topics. As a result,
A.M.S. fails to demonstrate that the circuit court lacked a reasonable basis to warn trial counsel
for A.M.S. at the time of her proffer that the grievance officer’s testimony would “open the door”
to the Department being allowed to explore the factual basis for the officer’s recommendation to
consider transfer of the cases out of the county.

27