Kenosha County DC&FS v. A.G.O.

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 8, 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. 2023AP1305 Cir. Ct. Nos. 2022TP6
2022TP5
2023AP1307 2022TP4
2023AP1308

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2023AP1305

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

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,

PETITIONER-RESPONDENT,

V.

A.G.O.,

RESPONDENT-APPELLANT.

NO. 2023AP1307

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

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,
Nos. 2023AP1305
2023AP1307
2023AP1308

PETITIONER-RESPONDENT,

V.

A.G.O.,

RESPONDENT-APPELLANT.

NO. 2023AP1308

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

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY
SERVICES,

PETITIONER-RESPONDENT,

V.

A.G.O.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Kenosha County:
CHAD G. KERKMAN, Judge. Affirmed.

¶1 NEUBAUER, J.1 A.G.O., referred to herein by the pseudonym
Adam, appeals from orders terminating his parental rights to three of his children,

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
Nos. 2023AP1305
2023AP1307
2023AP1308

J.G.O., M.G.O., and Z.G.O., referred to herein by the pseudonyms Jamie, Michael,
and Zachary. Adam argues the circuit court erred in granting the Kenosha County
Division of Children and Family Services (the County) summary judgment at the
grounds phase based solely on requests for admission to which he failed to
respond. Adam also argues that his trial counsel provided ineffective assistance
by not responding to the requests for admission.

¶2 For the reasons set forth below, this court concludes that the circuit
court did not err in granting the County summary judgment. Adam’s failure to
respond to the requests for admission conclusively established those admissions
and, when considered with other evidentiary materials in the record, left no
genuine issue as to any fact material to abandonment, one of the grounds for
termination alleged by the County, and entitled the County to judgment as a matter
of law. However, the circuit court correctly rejected Adam’s ineffective assistance
claim because he failed to show prejudice—that is, a reasonable probability that
the circuit court would not have concluded that the County had proven
abandonment by clear and convincing evidence if his counsel had denied the
requests for admission relevant to that ground. Accordingly, the orders
terminating Adam’s parental rights are affirmed.

BACKGROUND

I. Termination Proceedings

¶3 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

3
Nos. 2023AP1305
2023AP1307
2023AP1308

government establishes the ground or 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 fact finder 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).

¶4 Jamie, Michael, and Zachary were removed from their parents’
home in January 2019 after Adam allegedly “shot another individual in the family
home while the children were present,” the police found drugs, guns, and
ammunition at the home, and “[t]wo of the children tested positive for cocaine.”
In June 2019, the children were found to be in need of protection or services under
WIS. STAT. § 48.13(10). In July of that year, dispositional orders were entered
placing the children outside their parents’ home and imposing conditions the
parents would have to meet before their children would be returned.

¶5 In January 2022, the County filed petitions to terminate the parental
rights of Adam and the children’s mother, referred to herein by the pseudonym
Mary.2 In the petitions, the County raised one ground to terminate Adam’s
parental rights—the children’s continuing need of protection or services.

2
In Kenosha Cnty. Div. of Child. & Fam. Servs. v. M.A.M., Nos. 2023AP1643,
2023AP1644, & 2023AP1645, unpublished slip op. (WI App Apr. 24, 2024), this court affirmed
the circuit court’s orders terminating Mary’s parental rights.

4
Nos. 2023AP1305
2023AP1307
2023AP1308

See WIS. STAT. § 48.415(2). The County later filed amended petitions adding a
second ground for termination—abandonment. See § 48.415(1).

¶6 At a hearing on February 16, 2022, Adam, who has a hearing
disability, informed the circuit court through an interpreter that he had retained an
attorney to represent him. However, because that attorney had not entered an
appearance, the court directed Adam to contact the public defender’s office about
having counsel appointed to represent him. At the end of February, the public
defender’s office appointed attorney Brenda VanCuick to represent Adam.
VanCuick and Adam appeared at a hearing on March 1, 2022, at which Adam
denied the County’s allegations and requested a jury trial.

¶7 On March 14, 2022, the County served sets of interrogatories and
requests for admission pertaining to each of Adam’s three children. See WIS.
STAT. § 48.293(4) (stating that “the discovery procedures permitted under [WIS.
STAT.] ch. 804 shall apply in all proceedings under this chapter”). The requests
for admission addressed various topics, including events in the years preceding the
children being removed from Adam and Mary’s home, the events and
circumstances that led to the children’s removal from the home, and facts relevant
to the grounds for termination alleged by the County.

¶8 On April 14, 2022, VanCuick filed motions to extend the deadline to
respond to the County’s discovery. In the motions, VanCuick stated that Adam’s
hearing disability made direct communication with him “very difficult” and that
she had not been able to meet with him and an interpreter to discuss the discovery
requests. VanCuick requested an additional thirty days to provide responses. The
County filed a response stating that it did not oppose the requested thirty-day
extension.

5
Nos. 2023AP1305
2023AP1307
2023AP1308

¶9 There is no indication in the record that the circuit court ruled on the
extension motions, but it is undisputed that the County’s discovery requests were
never answered. On August 10, 2022, the County filed motions asking that the
requests for admission be deemed admitted and that the court grant summary
judgment as to the two grounds based on those admissions.

¶10 Two weeks later, on August 25, 2022, VanCuick moved to withdraw
as Adam’s counsel, asserting that Adam had recently “informed intake court (on a
different case) that he would like for [her] to withdraw and would like new
counsel appointed for all of his cases” and she had been unable to contact him “to
confirm his wishes.” That same day, the circuit court held a hearing at which
Adam and VanCuick appeared. VanCuick told the court she had not been able to
speak with Adam about the County’s summary judgment motions and argued that
under a local rule, the County had to confer with her regarding the requests for
admission before it could seek to have them deemed admitted. VanCuick asked
the court to deny the County’s motions and address her request to withdraw.

¶11 The circuit court found that Adam had not answered the requests for
admission despite the parties having agreed to extend the deadline by thirty days
and deemed them admitted. The court asked the County if testimony on its
summary judgment motions was needed, and the County’s lawyer said no “based
upon the certified records that are attached to the motion. But we certainly at
disposition can shore up all of the grounds as well.” The court determined that
there was no genuine issue of material fact, granted summary judgment to the
County, and denied VanCuick’s request to withdraw.

¶12 The circuit court held a dispositional hearing in January 2023 at
which Katherine Schroeder, the social worker assigned to the termination

6
Nos. 2023AP1305
2023AP1307
2023AP1308

proceedings, testified that Adam “ha[d] not had formal contact with his children
since September 25, 2021.” She said that she had not had more than sporadic
communication with him since a phone call in December 2021, when he told her
“to leave him alone and not bother him anymore.” Schroeder also testified that
Adam had not maintained contact with the children’s foster parents or the
children’s doctors or school personnel. When asked what barriers existed to
Adam’s reunification with the children, Schroeder cited his past drug use, history
of domestic violence towards Mary, and failure to take responsibility for the
County’s involvement with his children. Schroeder opined that the benefits of
allowing the children to be adopted and achieve “a sense of permanency” would
outweigh the harm they would experience if their parents’ rights were terminated.

¶13 Adam testified that he had “[v]ery strong” relationships with his
children but acknowledged that he “stopped visiting [them] maybe a year and a
half ago. 15 or 16 months.” After the County finished its cross-examination,
Adam volunteered that he “stepped out because the more it went on, it was hurting
the kids more than me. And so, that’s why I stepped back. I knew if I kept going,
it would hurt the kids more.” In her closing argument, VanCuick stated that Adam
had informed her that he was “fine” with having his rights terminated but not
Mary’s “because kids need their mommies.” The circuit court found Schroeder’s
testimony credible and concluded that the factors relevant to termination weighed
“overwhelmingly in favor of terminat[ing]” Adam’s parental rights. After the
court announced its decision, Adam stated that he “agree[d] you’re right to stop
the trauma. Stop the trauma for the kids.”

7
Nos. 2023AP1305
2023AP1307
2023AP1308

II. Postdisposition Proceedings

¶14 Following the entry of orders terminating his parental rights, Adam,
through new counsel, filed a postdisposition motion alleging that VanCuick had
rendered ineffective assistance by, among other things, failing to deny some of the
County’s requests for admission. The court held a two-day evidentiary hearing on
Adam’s motion (and a similar motion filed by Mary) at which VanCuick testified
about her representation of Adam and her handling of the requests for admission.

¶15 In her testimony, VanCuick recalled receiving the requests for
admission and interrogatories, giving copies to Adam, and “meeting with him in
[her] office and going through a lot of those questions.” She acknowledged that
she did not “file” answers to the requests for admission: although she recalled
doing so, nothing in her file showed that had occurred. She denied any strategic
motive for not answering them and described herself as “surprised” that she did
not prepare answers given that she “[t]ypically” does not need client input to do
so.

¶16 VanCuick explained that she initially had to communicate with
Adam through his aunt on account of his hearing impairment but lost contact with
him after he and his aunt had a falling out. VanCuick had several phone numbers
for Adam that were linked to an answering service, but the numbers were not
“active.” She also was unable to communicate with Adam via email or U.S. mail
because “he had some housing instability and so access to a computer or even at
times a phone was difficult for him.” VanCuick testified that she was out of touch
with Adam between May and mid-August of 2022. She did not recall any
attempts he made during that period to reach her.

8
Nos. 2023AP1305
2023AP1307
2023AP1308

¶17 VanCuick admitted that she should have denied the request that
sought an admission that the County had made reasonable efforts to provide court-
ordered services to Adam. She was unable to recall the services Adam contended
the County had not made reasonable efforts to provide but testified that the “issue
… was going to be the [County’s] efforts … to tailor their services to [Adam]
based on … his hearing impairment [and] his other issues or disabilities.” She
also acknowledged that she could have denied several requests relevant to the
abandonment ground, which sought admissions that Adam lacked good cause for
failing to visit his children or communicate with them, their foster parent, the
County, or service providers for at least three months starting in September 2021.

¶18 The circuit court found that Adam was responsible for making sure
VanCuick could contact him, that he “was unable to be reached” between May and
August of 2022, and “that Attorney VanCuick made efforts to reach her client to
no avail.” The court also stated that a client is ultimately responsible for
answering requests for admission, not the attorney. Based on these findings, the
court concluded that VanCuick did not render deficient performance. It also
concluded that Adam had not shown “prejudice given [his] position at the
disposition.”

DISCUSSION

I. The Circuit Court Properly Granted Summary Judgment to the
County.

¶19 Adam first contends that the circuit court improperly granted
summary judgment in the grounds phase based solely on the requests for
admission. This court reviews a circuit court’s decision to grant summary

9
Nos. 2023AP1305
2023AP1307
2023AP1308

judgment de novo. See State v. Bobby G., 2007 WI 77, ¶36, 301 Wis. 2d 531, 734
N.W.2d 81.

¶20 Adam acknowledges that WIS. STAT. § 48.293 permitted the County
to serve requests for admission and that not answering the requests “conclusively
established the admissions.” See WIS. STAT. § 804.11(1)(b) (“The matter is
admitted unless, within 30 days after service of the request, or within such shorter
or longer time as the court may allow, the party to whom the request is directed
serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or attorney ….”); see also § 804.11(2)
(“Any matter admitted under this section is conclusively established unless the
court on motion permits withdrawal or amendment of the admission.”). But, he
argues, parents have a constitutional right not to have their rights terminated
unless clear and convincing evidence establishes their unfitness. See Santosky v.
Kramer, 455 U.S. 745, 769 (1982). He also cites our supreme court’s
acknowledgment in Steven V. that “summary judgment will ordinarily be
inappropriate in TPR cases premised on … fact-intensive grounds for parental
unfitness” like abandonment and a child’s continuing need of protection or
services. Steven V., 271 Wis. 2d 1, ¶36. Given these considerations, he argues
that the circuit court should not have granted summary judgment without first
“tak[ing] testimony sufficient to prove the grounds by clear and convincing
evidence.”

¶21 In response, the County appears to concede that the circuit court was
required to hear testimony as to the grounds for termination after it granted
summary judgment under WIS. STAT. § 48.422(3) and Waukesha County v.
Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, modified on other

10
Nos. 2023AP1305
2023AP1307
2023AP1308

grounds by St. Croix Cnty. Dep’t of Health & Hum. Servs. v. Michael D., 2016
WI 35, 368 Wis. 2d 170, 880 N.W.2d 107. The County acknowledges that the
court did not do so but argues that the error was harmless because testimony from
Schroeder, the social worker assigned to Adam’s children’s cases, at the
subsequent dispositional hearing and a report she prepared in advance of that
hearing provided a sufficient factual basis to establish the grounds for termination.

¶22 This court disagrees with, and in any event is not bound by, the
County’s concession on the legal question of whether testimony was required
before the circuit court could find Adam unfit. See Cramer v. Eau Claire County,
2013 WI App 67, ¶11, 348 Wis. 2d 154, 833 N.W.2d 172. WISCONSIN STAT.
§ 48.422(3) requires “testimony in support of the allegations in the petition” where
a parent does not contest the petition. See Steven H., 233 Wis. 2d 344, ¶41
(noting that parent “entered a no-contest plea to the allegations in the petition to
terminate his parental rights”). Here, Adam did not enter a no-contest plea; he
contested the allegations by denying them and requesting a jury trial at the
March 1, 2022 hearing. Thus, § 48.422(3) did not apply.

¶23 In addition, in Steven V., our supreme court recognized that
summary 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” provided the circuit court acts
“with due regard for the importance of the rights at stake and the applicable legal
standards.” Steven V., 271 Wis. 2d 1, ¶35. In reaching this conclusion, the court
specifically rejected an argument that “summary judgment on parental unfitness
conflicts with the right to a jury trial at the fact-finding hearing” under WIS. STAT.
§ 48.422(3) and other statutory provisions. Steven V., 271 Wis. 2d 1, ¶33. “If a

11
Nos. 2023AP1305
2023AP1307
2023AP1308

motion for summary judgment is made and supported as prescribed by WIS. STAT.
§ 802.08,” the court wrote, “the circuit court may properly conclude at the fact-
finding hearing that there is no genuine issue of material fact in dispute and the
moving party is entitled to partial summary judgment on parental unfitness as a
matter of law.” Steven V., 271 Wis. 2d 1, ¶34.

¶24 To be sure, the Steven V. court did identify abandonment and
continuing need of protection or services as grounds upon which summary
judgment is “ordinarily” not appropriate because they are “fact-intensive.” Id.,
¶36. However, the court also recognized that “[t]he propriety of summary
judgment is determined case-by-case” and cautioned against construing its
discussion as “a definitive statement about the propriety of summary judgment in
any particular case.” Id., ¶37 n.4. Thus, the key question for the circuit court, and
this court on appeal, is whether the County “establishe[d] that there is no genuine
issue of material fact regarding the asserted grounds for unfitness under WIS.
STAT. § 48.415, and, taking into consideration the heightened burden of proof
specified in WIS. STAT. § 48.31(1) and required by due process, the moving party
is entitled to judgment as a matter of law.” Steven V., 271 Wis. 2d 1, ¶53.

¶25 Here, with respect to abandonment, the County had to prove that
Adam’s children “ha[d] been placed, or continued in a placement, outside [his]
home by a court order containing the notice required by [WIS. STAT. §] 48.356(2)”
and that he “failed to visit or communicate with the child[ren] for a period of 3
months or longer.” See WIS. STAT. § 48.415(1)(a)2. The record before the circuit
court on summary judgment established both elements beyond genuine dispute.
Affidavits from Schroeder filed in support of the termination petitions stated that
dispositional orders were entered placing Jamie, Michael, and Zachary outside

12
Nos. 2023AP1305
2023AP1307
2023AP1308

their parents’ home and that the orders “include written termination of parental
rights warnings, pursuant to [§] 48.356(2).” In addition, Adam was deemed to
have admitted that (1) he knew where his children had been placed; (2) he “could
have discovered [their] whereabouts”; and (3) he had neither visited nor
communicated with his children “for a period of three (3) months or longer
beginning September 25, 2021.”3

¶26 Adam raises several arguments as to why the circuit court had to
take testimony before granting summary judgment to the County, but none is
persuasive. First, Adam describes summary judgment based on unanswered
requests for admission as “essentially sanctioning a party for failing to cooperate
with discovery” and analogizes it to “ask[ing] that the court finds grounds based
on a parent’s failure to obey pretrial orders.” He then cites Evelyn C.R. v.
Tykila S., 2001 WI 110, ¶¶8-9, 16, 246 Wis. 2d 1, 629 N.W.2d 768, in which our
supreme court concluded that a circuit court had erred in entering a default
judgment against a parent on the issue of abandonment after the parent failed to
appear personally at several hearings and without first taking evidence to establish
abandonment. Evelyn C.R. does not provide a basis for relief here. Failing to
timely answer requests for admission creates “conclusively established”
admissions that may—and here did—furnish an evidentiary basis upon which to
grant summary judgment. See WIS. STAT. § 802.08(2) (stating that summary
judgment may be rendered based on “admissions on file”); WIS. STAT.

3
Though the County pleaded two grounds for termination against Adam, it was required
to prove only one. See WIS. STAT. § 48.415 (“Grounds for termination of parental rights shall be
one of the following ….”). Because this court concludes that the record before the circuit court
was sufficient to grant summary judgment to the County as to abandonment, it need not address
the other ground pleaded by the County, the children’s continuing need of protection or services.

13
Nos. 2023AP1305
2023AP1307
2023AP1308

§ 804.11(2). By contrast, as the Evelyn C.R. court recognized, entering a default
judgment as a sanction for failing to appear at a hearing does not create a similar
evidentiary record that is constitutionally and statutorily required in termination
proceedings. Evelyn C.R., 246 Wis. 2d 1, ¶¶24, 26.

¶27 Anticipating the County’s harmless error argument, Adam next
argues that the record, including the testimony and other evidence presented at the
dispositional hearing, failed to establish either ground for termination by clear and
convincing evidence. As to the abandonment ground, Adam contends that he
raised a “good cause” defense at the dispositional hearing when he testified that he
“stepped back” from visiting his children because they “were struggling with his
visits.” See WIS. STAT. § 48.415(1)(c).

¶28 Our supreme court has found circuit court failures to take evidence
before finding grounds for termination to be harmless error where sufficient
evidence to support the grounds is present elsewhere in the record. See, e.g.,
Steven H., 233 Wis. 2d 344, ¶58 (declining to reverse termination order despite
circuit court’s failure to take evidence to establish grounds for termination because
“[a] factual basis for several of the allegations in the petition can be teased out of
the testimony of other witnesses at other hearings when the entire record is
examined”); Evelyn C.R., 246 Wis. 2d 1, ¶¶32-35. Here, however, this court need
not look for such evidence in the record or conduct a harmless error analysis
because, as discussed above, Adam’s admissions and the other evidence presented
by the County in support of its summary judgment motions established the
absence of any genuine issue of material fact as to abandonment and the County’s
entitlement to judgment as a matter of law by clear and convincing evidence.

14
Nos. 2023AP1305
2023AP1307
2023AP1308

II. The Circuit Court Correctly Denied Adam’s Postdisposition
Motion Because Adam Did Not Prove that He Received
Ineffective Assistance of Counsel.

¶29 Adam’s second argument is that VanCuick’s failure to answer the
requests for admission constituted ineffective assistance. 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, Adam must establish that VanCuick’s
performance was deficient and that her deficient performance prejudiced him. See
id. at 687. If this court concludes that Adam 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.”).

¶30 Ineffective assistance claims present mixed questions of law and
fact. State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848 N.W.2d 786. This
court “uphold[s] the circuit court’s findings of fact, including the circumstances of
the case and the counsel’s conduct and strategy, unless they are clearly erroneous.”
Id. Whether counsel’s performance meets the legal standard for ineffective
assistance is “a question of law that this court decides de novo.” State v. Domke,
2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364.

¶31 Initially, Adam argues that he does not have to prove prejudice
because VanCuick’s failure to answer the requests for admission “resulted in
fundamental unfairness”—that is, it “effectively left [him] without representation
at a critical stage of the proceedings—discovery.” See Strickland, 466 U.S. at 692

15
Nos. 2023AP1305
2023AP1307
2023AP1308

(“Actual or constructive denial of the assistance of counsel altogether is legally
presumed to result in prejudice.”). This court disagrees; Adam was not, in fact or
effect, denied counsel during discovery. VanCuick testified that she provided him
with copies of the County’s discovery requests and met with him at her office to
discuss them. VanCuick also filed a motion seeking additional time to respond to
the discovery requests when she lost contact with Adam. Though she did not
serve responses to the discovery requests, the steps she took to review the requests
with him and seek additional time to respond show that Adam was not actually or
constructively denied counsel altogether such that prejudice can be presumed.

¶32 Thus, Adam remains obligated to prove prejudice. To do so, he
must show that VanCuick’s “errors were so serious as to deprive [him] of a fair
[proceeding] whose result is reliable.” See id. at 687. Adam “must show that
there is a reasonable probability that, but for [VanCuick]’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.

¶33 Adam has not shown that he was prejudiced by VanCuick’s failure
to prepare answers to the requests for admission because he has not demonstrated
a reasonable probability that, absent this failure, the circuit court would not have
found grounds to terminate his parental rights. At this point, it is important to
recall that although the County alleged two grounds for termination, ultimately, it
only had to prove one. Here, this court focuses on the abandonment ground. Even
if VanCuick denied the requests for admission on the elements for abandonment,
there is not a reasonable probability that the circuit court would not have

16
Nos. 2023AP1305
2023AP1307
2023AP1308

determined that the County had proven abandonment by clear and convincing
evidence.

¶34 As discussed above, abandonment required the County to prove two
things: (1) Adam’s children “ha[d] been placed, or continued in a placement,
outside [his] home by a court order containing the notice required by [WIS.
STAT. §] 48.356(2)”; and (2) Adam “failed to visit or communicate with the
child[ren] for a period of 3 months or longer.” See WIS. STAT. § 48.415(1)(a)2.
Adam does not argue that the County would not have been able to establish either
element.4 Instead, he contends that he would have been able to prove good cause
for not visiting or communicating with his children at a fact-finding hearing. As
support for this argument, Adam cites his hearing impairment as an impediment to
communication and his testimony at the dispositional hearing that he “stepped out
because the more it went on, it was hurting the kids more than me. And so, that’s
why I stepped back. I knew if I kept going, it would hurt the kids more.”

¶35 WISCONSIN STAT. § 48.415(1)(c) “provides an affirmative defense to
the abandonment ground if an individual can establish ‘good cause’ why he did
not visit or have contact with [his children].” State v. James P., 2005 WI 80, ¶46,
281 Wis. 2d 685, 698 N.W.2d 95. Here, a good cause defense would have
required Adam to prove “all of the following by a preponderance of the evidence”:

 Adam “had good cause for having failed to visit with the child[ren]”
for a period of three months or longer;

4
Adam acknowledged at the dispositional hearing that he had “stopped visiting [his
children] maybe a year and a half ago. 15 or 16 months.”

17
Nos. 2023AP1305
2023AP1307
2023AP1308

 Adam “had good cause for having failed to communicate with the
child[ren]” during that time period; and

 Adam either (1) communicated about the children with the County
or “with the person or persons who had physical custody of [them]”
during that time period or (2) “had good cause for having failed to”
do so.

See § 48.415(1)(c)1.-3.

¶36 Adam has not shown that he would have been able to establish this
defense. To begin, his assertion at the dispositional hearing that he “stepped out”
or “stepped back” because “it” was “hurting the kids” is too vague to be of any
value. Adam volunteered this assertion after the County concluded its cross-
examination and not in response to a question that might provide some context and
illuminate its meaning. After Adam made the statement, VanCuick declined an
invitation from the circuit court to ask follow-up questions. As a result, it is
unclear what Adam meant when he said he “stepped back” or “stepped out” or
what exactly was “hurting” his children.

¶37 Adam argues in his appellate brief that his testimony referred to
stopping visits with his children because “he was told at a certain point that his
visits were damaging” to them. Taking him at his word and assuming this would
be sufficient to show good cause for not visiting his children, it still falls far short
of what is needed to establish the good cause defense. The defense requires a
showing of good cause for failing to visit and communicate; other than his hearing
impairment, Adam has not pointed to any reason why he did not communicate
with his children. While his hearing impairment may have precluded or hampered

18
Nos. 2023AP1305
2023AP1307
2023AP1308

communication by telephone, Adam has not shown why he could not have
communicated with his children through letters or other means. In addition,
Schroeder confirmed at the dispositional hearing that Adam had not maintained
contact with her or the children’s foster parent since the children were removed
from his home. Adam points to no evidence he would have offered to dispute
Schroeder’s testimony or to show that he had good cause for failing to
communicate with either her or the foster parent.

¶38 Absent such evidence, Adam cannot show a reasonable probability
that had VanCuick denied the requests for admission relevant to abandonment and
had the circuit court held a fact-finding hearing, it would not have concluded that
the County had proven abandonment by clear and convincing evidence. Thus,
Adam has not shown that VanCuick’s failure to answer the requests for admission
prejudiced him. That conclusion makes it unnecessary for this court to analyze the
other prong of Adam’s ineffective assistance claim—whether VanCuick’s
performance was deficient. The circuit court correctly denied Adam’s motion for
postdisposition relief.

By the Court.—Orders affirmed.

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

19