J. R. v. R. 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.
February 1, 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. 2022AP905 Cir. Ct. No. 2020TP20

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

J.R.,

PETITIONER-RESPONDENT,

V.

R.S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Fond du Lac County:
DALE L. ENGLISH, Judge. Affirmed.
No. 2022AP905

¶1 GUNDRUM, P.J.1 Rhonda appeals from an order of the circuit
court terminating her parental rights to her and James’ son, David, following a
jury’s determination that she abandoned David and failed to assume parental
responsibility and the court’s finding that termination was in David’s best
interest.2 Rhonda also appeals from an order denying her request for a new trial
on the basis that her counsel performed ineffectively at trial. Specifically, she
claims counsel was ineffective because he failed to call two particular individuals
as witnesses.3 For the following reasons, we conclude counsel did not perform
ineffectively, and we affirm.

Background

¶2 David was born in January 2016. In October 2020, James filed a
petition seeking to terminate Rhonda’s parental rights to David based on
abandonment, continuing denial of periods of physical placement, and failure to
assume parental responsibility. Rhonda contested the petition, and a jury trial on
the grounds phase occurred in October 2021. The jury found that Rhonda had
abandoned David for six months or longer by failing to visit or communicate with

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
For ease of reading, we use the pseudonyms “Rhonda,” “David” and “James” in lieu of
R.S., D.R. and J.R., respectively.
3
In her brief-in-chief, Rhonda additionally claims (1) the circuit court erred by
informing the jury during opening statements that the guardian ad litem “represent[s] the best
interests of [David]” and (2) her trial counsel performed ineffectively by failing to object to this
“error.” In response, James cites to D.B. v. Waukesha County Human Services Department,
153 Wis. 2d 761, 770, 451 N.W.2d 799 (Ct. App. 1989), which supports his position that the
court did not err in making its comment and therefore counsel was not ineffective for failing to
object. Subsequently, in her reply brief, Rhonda withdrew her claim of court error and ineffective
assistance of counsel arising out of the court’s comment, and thus we discuss this no further.

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No. 2022AP905

him and not having good cause for failing to do so and that she had failed to
assume parental responsibility. The circuit court held a dispositional hearing and
found that it was in David’s best interest to terminate Rhonda’s parental rights.

¶3 Rhonda filed a postdisposition motion asserting ineffective
assistance of trial counsel. The court held a Machner4 hearing at which trial
counsel and the two witnesses whom Rhonda claims should have been called at
trial testified. Following the hearing, the court denied Rhonda’s postdisposition
motion, and she appeals.

Discussion

¶4 In order to prove ineffective assistance of counsel, Rhonda bears the
burden of showing both that counsel’s performance was deficient and that the
deficient performance prejudiced her. See A.S. v. State, 168 Wis. 2d 995, 1005,
485 N.W.2d 52 (1992); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). If she fails to prove either prong, we need not address whether the other
prong was satisfied. See Strickland, 466 U.S. at 700. Whether trial counsel’s
performance was deficient and whether it prejudiced Rhonda are questions of law
we review de novo. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711
(1985). Because we conclude Rhonda has failed to show that any act or failure to
act by counsel prejudiced her, we do not address the deficiency question.

¶5 To prove prejudice, Rhonda needed to show that the alleged errors
of counsel were “of such magnitude that there is a reasonable probability that,
absent the error, ‘the result of the proceeding would have been different.’” See

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

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No. 2022AP905

State v. Erickson, 227 Wis. 2d 758, 769, 596 N.W.2d 749 (1999) (quoting
Strickland, 466 U.S. at 694). “It is not sufficient for the [parent] to show that his
[or her] counsel’s errors ‘had some conceivable effect on the outcome of the
proceeding.’” State v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d
364 (quoting State v. Carter, 2010 WI 40, ¶37, 324 Wis. 2d 640, 782 N.W.2d
695).

¶6 Rhonda contends counsel erred by failing to call as a witness at trial
a Madison police officer who spoke with James in April 2021. She asserts the
officer’s testimony “would have added to [her] good cause argument on
abandonment and the circumstances of the failure to assume parental
responsibility” as it was “important evidence of [James] trying to cut off contact
between [David] and [Rhonda].” She claims the officer would have provided
testimony “that phone numbers were blocked; that all packages were going to be
refused and that the only pictures [James] was going to show of [Rhonda] to
[David] was [Rhonda’s] mugshot.” In support of this contention, Rhonda relies on
the officer’s testimony at the Machner hearing that James had sent a text to
Rhonda’s mother “saying thank you for the package” and indicating the only
photo he had of Rhonda was a “mug shot” “so [that] will be what I show to
[David, or] something to that effect”; had expressed to the officer that he (James)
no longer wanted packages sent to his address; and had informed the officer “that
he had already blocked” the phone number of Rhonda’s mother.5 For the
following reasons, we conclude Rhonda has failed to demonstrate she was
prejudiced by the failure to call the officer as a witness.

5
According to the officer, Rhonda’s mother also informed him “that she was going to be
blocking [James’s] number.”

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No. 2022AP905

¶7 During the testimony of Rhonda’s mother, Rhonda’s counsel
published Exhibit 12 and passed it around to the jury. Exhibit 12 consisted of
Rhonda’s “mug shot” photo and James’s text below it saying “[t]hank you for the
package. This is the latest picture I could find of [Rhonda] so when [David] asks
who she is I can at least put a face to the name. Hope all is well!” Thus, the jury
was informed of—indeed, it saw for itself—what the officer would have testified
to in this regard had he been called as a witness. And as to the blocking of phone
numbers, the officer’s testimony was that James indicated he had blocked the
phone number of Rhonda’s mother; there was no indication he had blocked
Rhonda’s phone number. More significantly, as to all of the officer’s testimony,
Rhonda fails to develop any argument explaining how there was a “reasonable
probability … ‘the result of the proceeding would have been different,’” see
Erickson, 227 Wis. 2d at 769, if the officer’s testimony had been presented, and
we fail to see how this would be so, see Clean Wis., Inc. v. PSC of Wis., 2005 WI
93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address
undeveloped arguments.”).

¶8 Rhonda also contends counsel performed ineffectively by failing to
call a Don Weeden as a witness because Weeden would have corroborated the trial
testimony of Rhonda’s mother that Rhonda participated with her in sending
packages to David; Rhonda asserts that sending the packages amounted to
communicating with and showing concern for David. Rhonda claims it was
“clearly ineffective not to present testimony from Weeden to buttress testimony
from [her mother] whose bias toward [Rhonda] made her vulnerable to
impeachment.”

¶9 To begin, Rhonda gives us no reason to conclude the jury did not
believe her mother’s testimony that Rhonda participated in sending packages to

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No. 2022AP905

David—other than to speculate that simply because she was Rhonda’s mother, the
jury found she was lying about Rhonda participating in sending the packages.
Speculation, however, is insufficient to establish prejudice. See State v. Wirts,
176 Wis. 2d 174, 187, 500 N.W.2d 317 (Ct. App. 1993) (“A showing of prejudice
requires more than speculation.”); see also Domke, 337 Wis. 2d 268, ¶54 (“It is
not sufficient for the [appellant] to show that [her] counsel’s errors ‘had some
conceivable effect on the outcome of the proceeding.’” (citations omitted)). Thus,
Rhonda has not shown by clear and convincing evidence a reasonable probability
of a different result if Weeden had testified. Moreover and relatedly, Rhonda
again fails to sufficiently develop an argument showing she was prejudiced with
regard to either the abandonment or failure to assume parental responsibility
grounds, much less both, by the failure to call Weeden as a witness. See Steven V.
v. Kelley H., 2004 WI 47, ¶¶24-25, 271 Wis. 2d 1, 678 N.W.2d 856 (recognizing
that to proceed to the disposition phase of a termination of parental rights
proceeding, the petitioner only needed to prove the existence of one ground). She
would like us to believe it is so simply because she asserts it; but that is
insufficient for establishing prejudice.

By the Court.—Orders affirmed.

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

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