State v. T. S. W.

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 22, 2019
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 Nos.
2019AP450 Cir. Ct. Nos. 2016TP246
2016TP247
2019AP451
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

T. S. W.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

T. S. W.,

RESPONDENT-APPELLANT.
Nos. 2019AP450
2019AP451

APPEALS from orders of the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge. Affirmed.

¶1 DUGAN, J.1 T.S.W. appeals the orders terminating her parental
rights to two of her children, J.L.C. and J.C., and the orders denying her
postdisposition motion for a new trial.2 T.S.W. argues that the trial court erred
because it did not hold a hearing regarding J.C.’s change of physical placement
prior to the jury trial on the grounds phase3 of the petition for the termination of
her parental rights (TPR) to both children and because it denied her
postdisposition motion without a hearing.4 She also argues that trial counsel was
ineffective in (1) failing to object to proceeding with jury trial on the grounds
phase of the TPR petition before the trial court conducted a hearing on the motion
to change J.C.’s physical placement and (2) failing to request an adjournment of

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-
18). All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
The Honorable Christopher R. Foley presided over the TPR proceedings and the
postdisposition motions, with the exception of the July 30, 2018 final pretrial when the judge was
unavailable. We refer to Judge Foley as the trial court.
3
Wisconsin has a two-part statutory procedure for the involuntary termination of
parental rights. Steven V. v. Kelley H., 2004 WI 47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856. In the
grounds phase, the petitioner must prove by clear and convincing evidence that at least one of the
twelve grounds enumerated in WIS. STAT. § 48.415 exists. See WIS. STAT. § 48.31(1); Steven V.,
271 Wis. 2d 1, ¶¶24-25. In the dispositional phase, the court must decide if it is in the child’s
best interest that the parent’s rights be permanently extinguished. See WIS. STAT. § 48.426(2);
Steven V., 271 Wis. 2d 1, ¶27.
4
Separate cases were filed for each child and T.S.W. filed a separate notice of appeal in
each case. On August 22, 2019, we issued an order consolidating the appeals.

Although the cases were separate before the trial court, in most instances the parties’
papers and court orders in each case were identical, and joint court proceedings were held for the
two cases. For ease of reading, we refer to documents that were filed in the singular, even though
actually a particular document was filed in both cases.

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the jury trial until T.S.W. was back on her prescribed mental health medication.
We disagree and affirm the orders.

BACKGROUND

¶2 On August 2, 2016, the State filed a petition seeking an order
terminating T.S.W. and L.C.’s5 rights to J.L.C. and J.C. The petition alleged
grounds of both continuing need of protection or services (CHIPS) and failure to
assume parental responsibility. T.S.W. contested the petition.

¶3 A jury trial on the grounds phase was scheduled for February 27,
2017, but it was adjourned at T.S.W.’s request and rescheduled for June 5, 2017.
The State and guardian ad litem (GAL) later asked the trial court to adjourn the
trial because the case manager was on a leave of absence. The trial court granted
the adjournment and then granted an adjournment again on October 9, 2017,
because it appeared that a reunification of the children with T.S.W. was likely.

¶4 J.C. was placed with T.S.W. on October 31, 2017, and an order for
the trial reunification of J.C. with T.S.W. was filed. J.C.’s trial reunification with
T.S.W. became a formal change of placement on February 26, 2018.

¶5 On November 29, 2017, a notice of trial reunification for J.L.C. with
T.S.W. was filed. The foster parents objected to the trial reunification as to J.L.C.
and the agency ultimately withdrew that request.

5
L.C.’s case was severed from T.S.W.’s case for trial and his parental rights were
terminated. This appeal does not involve any issues regarding L.C.

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¶6 On April 9, 2018, the State advised the trial court that it still
intended to proceed to trial on J.L.C.’s case. Additionally, the petition to
terminate T.S.W.’s parental rights to J.C. remained pending. An August 27, 2018
jury trial on the grounds phase was set.

¶7 On July 9, 2018, J.C. was removed from T.S.W.’s care for the third
time on an emergency basis because T.S.W. continued to use cocaine which put
J.C. in unsafe situations. On July 11 and 12, 2018, the trial court held a hearing on
the emergency removal and the trial court ordered an emergency change of
physical placement removing J.C. from T.S.W.’s care. T.S.W. objected to the
change of placement and the matter was set for a July 30, 2018 hearing. On
July 30, 2018, the trial court was not available to hear the motion on the change of
placement and the hearing was adjourned to the trial date.

¶8 The jury trial on the grounds phase of the TPR began on August 27,
2018, and concluded on August 29, 2018. The jury returned verdicts finding that
J.C. and J.L.C. were children in need of continuing need of protection or services
and that T.S.W. failed to assume parental responsibility for both children. The
trial court accepted the verdicts and made the requisite finding that T.S.W. was
unfit to be a parent. The trial court then addressed the motion for a change of
physical placement for J.C. and determined that J.C.’s change of placement back
to the foster home was warranted.

¶9 The trial court held a dispositional phase hearing on August 31,
2018, and it issued a written decision on October 4, 2018, terminating T.S.W.’s
parental rights to J.L.C. and J.C. Orders for the termination of T.S.W.’s parental
rights to each child were filed on October 8, 2018.

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¶10 T.S.W.’s appellate counsel filed a motion for a new trial on July 8,
2019. The trial court denied the motion in a written decision, without a hearing,
on July 24, 2019.

¶11 Additional facts will be included as relevant to the discussion.

DISCUSSION

I. The fact that the trial court did not hold a hearing on the
change of J.C.’s physical placement motion prior to the
jury trial on the TPR grounds phase did not violate
T.S.W.’s due process rights

¶12 T.S.W. argues that the fact that the trial court did not hold a hearing
on the motion for a change of J.C.’s physical placement prior to the jury trial on
the grounds phase of the TPR violated her due process rights. She asserts that the
plan was for J.C. to be placed with her on a trial reunification and then J.L.C.
would join J.C. and T.S.W. on a trial reunification. However, prior to the jury
trial, J.C. was removed from T.S.W.’s care on July 9, 2018, and an emergency
change of placement hearing was held on July 11 and 12, 2018. The trial court
granted a temporary nonsecure physical placement of J.C., but also told T.S.W.
that on the July 30, 2018 final pretrial date she would have a hearing on her
objection to the change of placement.

¶13 On July 30, 2018, the trial court was unavailable. Instead, another
judge adjourned the hearing on the motion until the August 27, 2018 trial date.

¶14 At the start of the jury trial on the grounds phase of the TPR
petitions, the trial court addressed the change of placement motion. The GAL and
the State suggested that the trial court could consider the motion during their
presentation of the evidence on the grounds phase without conducting a separate

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hearing on the motion. The trial court then decided to consolidate the motion for
change of placement with the jury trial on the grounds phase of the TPR. It further
stated that, regardless, it was “certainly going to take into account the testimony
that’s adduced during the grounds [] phase trial in resolving that issue.”

¶15 At the conclusion of the jury trial, the State advised the trial court
that it did not have anything further to present regarding the motion for the change
of J.C.’s placement that the trial court had not already heard. The GAL stated that
the trial court should rely on the evidence introduced during the trial and the
evidence that the trial court received during the July 12, 2018 emergency change
of placement hearing. Trial counsel objected. The trial court then found that the
change of J.C.’s physical placement was warranted.

¶16 Based on those facts, T.S.W. contends that the outcome of the
hearing on the change of placement “could have materially impacted the evidence
that would have been presented at trial.” She argues that “[e]ssentially, had
T.S.W. prevailed at the change of placement hearing, the jury would have heard
that J.C. was placed in her home and not still residing outside of the parental
home. By not holding this hearing before trial, T.S.W. was deprived of potential
evidence in her favor.” T.S.W. then asserts that “the fundamental fairness of due
process would have required the trial court to have held the change of placement
hearing before trial. As a result, T.S.W.’s right to due process was violated.”

¶17 We are not persuaded. First, T.S.W. does not cite any authority for
the proposition nor does she develop the argument. In short, she has done no more
than to state the proposition without any elaboration. She has not developed or
presented an argument telling us why we should accept her conclusory
proposition, and she has not referred us to any legal authority supporting the

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statement. We need not address undeveloped arguments. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶18 Moreover, as the trial court noted in its written decision denying
T.S.W.’s motion for a new trial, the statutory provision which gives a parent who
objects to a change of placement from in home to out of home the right to a
hearing does not provide a statutory right to an evidentiary hearing and does not
provide a statutory time limit in which a hearing must be held. See WIS. STAT.
§ 48.357(1)(c)2.

¶19 The record reflects that T.S.W. was given her hearing on the motion
to change J.C.’s physical placement during the emergency hearing on the motion
and during the jury trial. At the hearing on July 12, 2018, the trial court heard
evidence on the request for an emergency temporary change of placement. The
trial court heard testimony from Kelly Davis, a family case manager with
Children’s Hospital of Wisconsin Community Services. She described the efforts
to reunify T.S.W. with J.C., the treatment services that were offered to T.S.W.,
and T.S.W.’s relapses with substance abuse that put J.C. in unsafe situations. The
trial court heard that J.C. was placed with T.S.W. for a trial reunification on
approximately October 31, 2017, until approximately July 9, 2018, when she was
removed for an emergency detention. T.S.W. chose not to testify at the hearing.

¶20 During the jury trial, the trial court heard testimony about T.S.W.’s
involvement with Child Protective Services beginning with her older children in
2007 and continuing until the jury trial. It also heard about T.S.W.’s extensive
substance abuse issues that put J.C. in dangerous situations. T.S.W. does not even
attempt to identify any facts that she could have introduced that would have

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Nos. 2019AP450
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resulted in the trial court denying the motion to change J.C.’s physical placement,
nor does she address the evidence presented by the State.

¶21 At the end of the jury trial when the trial court addressed the motion
to change placement, the trial court expressly recognized that T.S.W. wanted it to
understand that relapse is part of recovery and stated that it understood that fact.
However, it further stated, “[b]ut without a doubt, this ongoing inability to
maintain sobriety and engage with a drug that we all know is very, very dangerous
in various aspects, you know, the [c]hange of [p]lacement was warranted.”

¶22 Based on the foregoing, we conclude that the fact that the trial court
did not have a hearing on the motion for the change of J.C.’s physical placement
prior to the jury trial on the grounds phase of the TPR did not violate T.S.W.’s due
process rights.

II. Trial counsel was not ineffective

¶23 T.S.W. contends that trial counsel was ineffective in two ways:
(1) by allowing the jury trial to proceed without a prior hearing on the motion for
J.C.’s change of placement which removed J.C. from T.S.W.’s home, and (2) by
failing to raise the issue of T.S.W. not being on her mental health medications and
by failing to request adjournment of the jury trial until T.S.W. was on her
medications. T.S.W. argues, as a result of trial counsel’s failure to seek an
adjournment, the jury observed her to be angry and irritable when she testified,
rather than the clearheaded, less impulsive, very pleasant person that she is when
she is on her medications.

¶24 We address each contention in turn.

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A. Trial counsel was not ineffective for failing to object to
the jury trial proceeding prior to the hearing on the
State’s motion to change J.C.’s placement

¶25 T.S.W. argues that trial counsel was ineffective by “allow[ing] the
jury trial to proceed without [first having] a hearing on J.C.’s change of placement
which removed J.C. from T.S.W.’s home.” A defendant claiming ineffective
assistance of trial counsel must establish both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Moreover, as explained in
State v. Ziebart, 2003 WI App 258, ¶14, 268 Wis. 2d 468, 673 N.W.2d 369, “a
claim predicated on a failure to challenge a correct trial court ruling cannot
establish either.” See also State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d
270, 647 N.W.2d 441 (stating that “[f]ailure to raise an issue of law is not deficient
performance if the legal issue is later determined to be without merit”) and State v.
Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999) (stating that trial
counsel’s failure to present a legal challenge is not prejudicial if the defendant
“cannot offer any proof” that the challenge would have succeeded). “Trial
counsel’s failure to bring a meritless motion does not constitute deficient
performance.” See State v. Swinson, 2003 WI App 45, ¶59, 261 Wis. 2d 633, 660
N.W.2d 12.

¶26 Because we concluded above that the trial court properly
consolidated the issue of the change of J.C.’s placement with the jury trial on the
grounds phase of the TPR, T.S.W.’s “ineffective-assistance-of-counsel claim must
fail.” See State v. Langlois, 2017 WI App 44, ¶23, 377 Wis. 2d 302, 901 N.W.2d
768. See also Ziebart, 268 Wis. 2d 468, ¶17.

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B. Trial counsel was not ineffective in failing to raise the
issue that T.S.W. was not taking her prescribed mental
health medication and for not requesting an
adjournment of the proceedings until T.S.W. was back
on her medication

¶27 T.S.W. argues that trial counsel was ineffective by failing to raise
the issue that T.S.W. was not taking her mental health medication at the time of
the jury trial and by failing to request an adjournment of the proceedings until
T.S.W. was back on her medication. T.S.W. asserts that at trial, the case manager
testified that “when T.S.W. is on her medications she is much more clearheaded,
less impulsive, very pleasant and tells the best jokes; when she is not on her
medications, she is short, angry and irritable and not an effective parent.” T.S.W.
then argues that, as a result of trial counsel’s failings, the jury observed the
“‘short, angry and irritable’ T.S.W. and not the ‘clearheaded, less impulsive, very
pleasant’ T.S.W.”

¶28 As noted above, “[t]rial counsel’s failure to bring a meritless motion
does not constitute deficient performance.” Swinson, 261 Wis. 2d 633, ¶59. See
also Jackson, 229 Wis. 2d at 344 (stating that counsel’s failure to present a legal
challenge is not prejudicial if the defendant “cannot offer any proof” that the
challenge would have succeeded).

¶29 Here, in its written postdisposition motion decision, the trial court
stated that trial counsel was not ineffective for failing to make meritless motions.
The trial court went on to say,

No reasonable judge would have adjourned this trial for the
reason [postdisposition counsel] argues should have been
asserted. The TPR petition, which by statute presumptively
should have been litigated in 75 days … had been filed two
years before the trial…. Only weeks earlier (July 23,
2018), I had denied a request of [T.S.W.] for new counsel
because there was no substantive basis for the request and

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because the request would have resulted in another
delay in resolving the litigation in derogation of the
rights of the children and the interests of the public in
timely resolution of TPR cases. A request to adjourn
would have been clearly meritless without taking into
consideration [T.S.W.’s] persistent pattern of engaging and
then disengaging in her medication regime with the
attendant wild swings in her emotional liability.

¶30 Clearly, the trial court stated that, if trial counsel moved to adjourn
the jury trial because T.S.W. was not on her mental health medications, it would
have denied the motion. It held that the adjournment would have resulted in
another delay in derogation of the rights of the children and the interests of the
public in the timely resolution of the TPR cases. Moreover, the trial court
considered the fact that T.S.W.’s history showed her pattern of engaging and then
disengaging in her medication regime with attendant swings in her emotional
lability. Thus, the trial court was not convinced that an adjournment would have
resulted in any change in T.S.W.’s condition at a new trial date.6

¶31 Because we conclude that, if trial counsel had moved to adjourn the
jury trial because T.S.W. was not on her prescribed mental health medications, the
motion would not have succeeded because the trial court would have denied the
motion, T.S.W.’s “ineffective-assistance-of-counsel claim must fail.” See
Langlois, 377 Wis. 2d 302, ¶23. See also Ziebart, 268 Wis. 2d 468, ¶17.

6
T.S.W. does not challenge the trial court’s holding that it would have denied any
motion to adjourn the trial for those reasons. She only argues that trial counsel was ineffective
for failing to move to adjourn the trial.

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III. The trial court properly denied T.S.W.’s postdisposition
motion without a hearing

¶32 A defendant is not automatically entitled to an evidentiary hearing
on a postdisposition motion. “A hearing on a [postdisposition] motion is required
only when the movant states sufficient material facts that, if true, would entitle the
defendant to relief.” See State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. A trial court may deny a postdisposition motion without a hearing
“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[.]” See id., ¶9. Whether a motion alleges
sufficient facts that, if true, would entitle the defendant to an evidentiary hearing
presents a question of law that we review de novo. See State v. Bentley, 201
Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

¶33 As discussed above, the record conclusively demonstrates that
T.S.W. was not entitled to relief on her claim that the trial court violated her due
process rights by proceeding to the jury trial on the grounds phase of the TPR
without first holding a hearing on the motion to change J.C.’s physical placement
or her claim that trial counsel was ineffective. Because she was not entitled to
relief on those claims, the trial court had the discretion to deny her an evidentiary
hearing.

CONCLUSION

¶34 For the reasons stated above we affirm the trial court’s orders.

By the Court.—Orders affirmed.

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

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