State v. D. 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.
August 25, 2020
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.
2019AP2230 Cir. Ct. Nos. 2018TP208
2018TP209
2019AP2231 2018TP210
2019AP2232 2018TP211
2019AP2233
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.S.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.S.,
Nos. 2019AP2230
2019AP2231
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RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D. S.,

RESPONDENT-APPELLANT.

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D. S.,

RESPONDENT-APPELLANT.

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

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¶1 BRASH, P.J.1 D.S. appeals the orders of the trial court terminating
her parental rights for J.I.S., A.T., E.S. and D.G. She argues that she was denied
the effective assistance of counsel at a motion hearing held in June 2019, during
which she was without representation. She contends that this was a structural
error, which is not subject to a harmless error analysis. D.S. further asserts that
her trial counsel was ineffective in his failure to request an adjournment of the
dispositional hearing when he had received a substantial amount of discovery the
day before the hearing. We disagree and affirm.

BACKGROUND

¶2 D.S. is the biological mother of J.I.S., born November 3, 2010; A.T.,
born February 11, 2013; E.S., born January 13, 2014; and D.G., born April 28,
2015. D.S. also has two other younger children who were not involved in these
proceedings.

¶3 J.I.S. and A.T. were previously found to be children in need of
protection or services in August 2013. In November 2013, A.T. was returned to
the care of D.S., and J.I.S. was placed with his biological father, D.M., 2 under the
supervision of the Division of Milwaukee Child Protective Services (DMCPS).
The dispositional order was allowed to expire in November 2014.

1
This appeal is 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
D.M.’s parental rights for J.I.S. were also terminated in these proceedings, but he is not
a party to this appeal. A.T.’s biological father is unknown; his rights were terminated as well.

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¶4 In March 2015, J.I.S. and A.T. were again found to be children in
need of protection or services, along with E.S. D.G., who was born a month later
with THC in her system, was found to be a child in need of protection or services
in August 2015. These findings were primarily based on the long history of
domestic violence between D.S. and her boyfriend, M.G., the father of E.S. and
D.G.3 Furthermore, the children had sustained injuries that they disclosed were
the result of physical abuse by D.S. and M.G.

¶5 The children were placed in out-of-home placements, and
requirements were set to ensure their safety before they could be returned to D.S.’s
care. For example, it was mandated that D.S. was not to allow violence in her
home or in front of the children. Additionally, DMCPS was to provide D.S. with
services such as parenting programs, parent-child therapy, and individual therapy
to assist her in meeting the requirements of having age-appropriate expectations
for the children, providing safe care for them, and controlling her emotions. D.S.
was also required to have regular communication with the family’s case manager,
and to have regular visits with the children.

¶6 D.S. failed to meet these requirements. There was another domestic
violence incident between D.S. and M.G. reported in May 2018. Furthermore,
although D.S. denied that she was still in a relationship with M.G., D.S.’s two
youngest children—one born in April 2018, and the other born subsequent to the
May 2018 domestic violence incident—were conceived with M.G.

3
M.G. is the biological father of D.G. and was adjudicated to be the father of E.S.
M.G.’s parental rights for E.S. and D.G. were terminated in these proceedings, but he is not a
party to this appeal.

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¶7 Moreover, D.S. refused to participate in parenting programs,
discontinued family therapy shortly after starting it, and was discharged from
individual therapy due to her inconsistent participation. Additionally, she was
inconsistent with her communication with her case manager, refused to give the
manager access to her home, and was characterized as being “very defensive” and
“caus[ing] unnecessary conflicts with DMCPS.”

¶8 D.S. was also inconsistent with her visits with the children. Her
visits at one point had progressed to being partially supervised, but were returned
to being fully supervised by DMCPS due to safety concerns: she failed to use car
seats when driving the children in her car; she left them unattended in the car;
there was smoking in the home which aggravates their asthma; and she allowed
them to watch inappropriate television shows depicting violence and foul
language. In fact, “[t]he children articulated that they did not feel safe” with D.S.
After the decision to return to supervised visits, D.S. put visitation on hold because
she disagreed with that decision.

¶9 DMCPS determined that “[o]verall, [D.S.] continues a pattern of
immature and impulsive decision-making in regards to her children’s safety and
her own well-being.” As a result, a petition for the Termination of Parental Rights
(TPR) of D.S. with regard to J.I.S., A.T., E.S., and D.G. was filed on August 28,
2018. In the petition, the State’s alleged ground for termination was the
continuing need of protection or services, pursuant to WIS. STAT. § 48.415(2).

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¶10 The matter proceeded to a court trial4 at D.S.’s request. It began on
February 27, 2019, and continued over several days, concluding on April 15,
2019. In a written decision filed April 22, 2019, the trial court held that the State
had proven that there was a continuing need of protection or services for the
children. The court observed that “[t]he all encompassing and quintessential
condition [D.S.] has not met is a demonstrated ability and willingness to provide
safe and appropriate care for these children.” Thus, the case proceeded to a
dispositional hearing.

¶11 That hearing was scheduled for June 11, 2019. At the start of that
hearing, the trial court stated that trial counsel for D.S. had “r[u]n into a licensing
CLE credit quagmire” and, as a result, was unable to represent D.S. at that time.
Therefore, the dispositional hearing was rescheduled to July 19, 2019.

¶12 However, there was another issue relating to treatment for A.T. that
the trial court deemed to be an “emergent situation” which needed to be addressed
that day. A.T. has significant behavioral problems, including running away,
punching his fist through glass, and attempting to “jump out of two-story
windows[.]” Just prior to the June 11 hearing, he had an incident for which he was
hospitalized for inpatient treatment. The doctor treating A.T. recommended that
he be put on medication, but D.S. refused to provide consent for that treatment.
Thus, A.T. was discharged because without medication, the doctor felt there was
nothing more that could be done for A.T. in the hospital setting.

4
The court trial and dispositional hearing were presided over by the Honorable
Christopher R. Foley, and we refer to him as the trial court.

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¶13 The trial court determined that this issue required immediate
attention, although it noted the “conundrum” presented by the situation:

I don’t know what a judge does with this. This is a
represented party, but [D.S.’s] lawyer can’t be present and
can’t represent her; and, yet, she desperately wants to tell
her side of this dispute about treatment for this child. I
don’t know what a judge is supposed to do with that.

I will note in past discussions about this, even when
her lawyer was present, she was quite vociferous about her
own position in regard to these issues. So I certainly am
going to let her have at it.

¶14 The court further observed that D.S.’s withholding of consent for
treatment seemed to be related to her perception that she was being “disrespected”
by the child welfare system. As a result, it believed that D.S. had “lost the ability
to rationally evaluate what her child needs because she’s so angry at [DMCPS]
and the old guy in the black dress.”

¶15 The State had moved for temporary guardianship of A.T., which the
trial court denied. However, the court ordered that A.T. be evaluated for treatment
and medication, pursuant to WIS. STAT. § 48.373, to ensure that A.T. immediately
received proper medical attention.

¶16 The rescheduled dispositional hearing was held on July 19, 2019,
with D.S.’s trial counsel again able to represent her. The trial court noted that in
the time between the court trial and the dispositional hearing, D.S. had lost her job,
was on the verge of losing her home—even though DMCPS had twice paid for
D.S.’s first month’s rent and security deposits to assist her in meeting the
requirement of providing a safe home for the children, and had been “involved in a
highly escalated confrontation with [J.I.S.] at a visit, causing [A.T.] to flee the

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room.” The court observed that “[q]uintessentially, this represents all the
instability, chaos, violence and emotional warfare so harmful to these children”
which necessitated intervention by DMCPS. The court found this to be a
“persistently recurring pattern of behavior rendering [D.S.] incapable of safe, daily
care of her emotionally fragile and behaviorally challenging children.” Thus, the
court determined that it was in the best interests of the children to terminate D.S.’s
parental rights.

¶17 D.S. filed a motion for a postdisposition evidentiary hearing in
March 2020.5 She claimed that her trial counsel had provided ineffective
assistance of counsel based on the suspension of his license which resulted in D.S.
being unrepresented during the June 11, 2019 hearing regarding emergency
medical treatment for A.T. D.S. further alleged that trial counsel did not obtain
400 pages of relevant discovery until the day before the dispositional hearing, and
that counsel should have moved to adjourn the hearing so that he could be more
fully prepared.

¶18 An evidentiary hearing was held in May 2020. D.S.’s trial counsel
testified that his license had been suspended due to a problem with his bar dues
payment not being properly processed. It was suspended on June 5, 2019, and
reinstated on June 13, 2019; he was therefore unable to represent D.S. at the
June 11, 2019 hearing. Counsel also testified that he had reviewed all of the
discovery material with the assistance of his paralegal prior to the dispositional
5
A notice to pursue postdisposition relief was timely filed by D.S. in accordance with
WIS. STAT. RULE 809.107(2)(bm), and this court remanded this matter to the circuit court for
further proceedings. D.S.’s postdisposition motion was heard by the Honorable Mark A. Sanders,
who we refer to as the postdisposition court.

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hearing. Furthermore, he stated that if that material had contained something
critical to the dispositional hearing, he would have brought a motion to adjourn the
hearing.

¶19 The postdisposition court, which found trial counsel’s testimony to
be credible, determined that counsel was not deficient with regard to his review of
the discovery material just prior to the dispositional hearing. The court noted that
the material was reviewed by counsel and his experienced paralegal who was
familiar with the case, and that this was “not an unusual practice.” In fact, the
court found that “[i]t is not inappropriate or in any way deficient for a lawyer to
rely on the work of a paralegal under his supervision to review discovery
material.”

¶20 With regard to the June 11, 2019 hearing, the postdisposition court
noted that “getting one[’]s license suspended in the middle of a case is probably
deficient performance.” It further opined that it would have been “prefer[]able”
for D.S. to have counsel present at the June 11, 2019 hearing when the issue
regarding treatment for A.T. was heard and an order for evaluation entered—even
though the trial court had deemed it to be an emergency—because the order
“implicate[d] [D.S.]’s rights.”

¶21 However, the postdisposition court determined that D.S. had not
demonstrated that she was prejudiced. The court noted that the motion for
temporary guardianship advanced by the State at that hearing was denied.
Furthermore, the court observed that even if D.S.’s lack of representation was
prejudicial, it would have been only with regard to the case relating to A.T., and
that issue was rendered moot with the trial court’s termination of D.S.’s parental

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rights for all of the children, including A.T. In any event, the postdisposition court
found that any prejudicial effect was not sufficient to undermine its confidence in
the outcome of the case. Therefore, it denied D.S.’s postdisposition motion. This
appeal follows.

DISCUSSION

¶22 We review D.S.’s claim of ineffective assistance of counsel under
the familiar standard. To prove ineffective assistance, the defendant must show
that his or her trial counsel’s performance was deficient and that the deficiency
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
“To prove constitutional deficiency, the defendant must establish that counsel’s
conduct falls below an objective standard of reasonableness.” State v. Love, 2005
WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62. “To prove constitutional
prejudice, the defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (citations and internal quotation marks omitted).
If a defendant fails to satisfy one component of the analysis, a court need not
address the other. Strickland, 466 U.S at 697.

¶23 Whether counsel’s performance was deficient and whether the
deficiency was prejudicial are questions of law that we review de novo. State v.
Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990). However, findings of
fact made by the trial court will not be overturned unless they are clearly
erroneous. Id. at 127.

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¶24 First, with regard to trial counsel’s review of the discovery material
the day before the dispositional hearing, we agree with the postdisposition court’s
assessment that this was not deficient performance. Counsel had the assistance of
his paralegal, who was experienced and very familiar with D.S.’s case. In fact, as
the postdisposition court noted, this type of review of discovery material takes
place regularly in all types of litigation practices, due to the volume of information
involved. Furthermore, counsel testified that he was able to determine that this
material would not affect his strategy during the dispositional hearing. Therefore,
counsel’s conduct did not “fall[] below an objective standard of reasonableness.”
See Love, 284 Wis. 2d 111, ¶30.

¶25 We next turn to D.S.’s lack of representation at the June 11, 2019
hearing. “The statutory right to the assistance of counsel in a termination of
parental rights proceeding is … essential to a fair proceeding.” State v. Shirley E.,
2006 WI 129, ¶60, 298 Wis. 2d 1, 724 N.W.2d 623. This right is violated if a
parent in a TPR proceeding is “totally deprived of the presence and assistance of
an attorney during a critical stage in the proceeding[.]” Id., ¶61. In that case, the
violation is a structural error, and a new trial is required. Id., ¶63. This is a
question of law that we review de novo. State v. Carter, 2010 WI App 37, ¶17,
324 Wis. 2d 208, 781 N.W.2d 527.

¶26 “A critical stage is any point in the criminal proceedings when a
person may need counsel’s assistance to assure a meaningful defense.” Id., ¶18
(citation omitted). For example, this court in Carter determined that the
defendant’s right to counsel was violated when the trial court took sworn
testimony from a witness—and later allowed that testimony to impeach that
witness’s trial testimony—without the defendant or his attorney present.

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Id., ¶¶20, 39. We determined that it was not “clear beyond a reasonable doubt that
a rational jury would have found [the defendant] guilty had the … testimony,
taken during an ex parte hearing, not been admitted during his trial.” Id., ¶30.

¶27 In this case, we conclude that the June 11, 2019 hearing was not a
critical stage in these proceedings. The order issued by the trial court that day was
for A.T. to be medically evaluated, which the court had already determined was an
emergency situation; thus, the need for D.S. to present a meaningful defense was
not paramount. Furthermore, this order—and the circumstances surrounding it—
were not discussed by the trial court in its written decision terminating D.S.’s
parental rights after the dispositional hearing. In other words, it does not appear to
have played a role in the ultimate outcome of these proceedings. Therefore, as this
hearing was not a critical stage in the proceedings, it was not a structural error for
trial counsel not to be present at that time.

¶28 Rather, any error that may have occurred under those circumstances
is subject to a harmless error analysis. See State v. Hansbrough, 2011 WI App
79, ¶10, 334 Wis. 2d 237, 799 N.W.2d 887 (“Constitutional errors at trial fall into
two categories: trial errors, which are subject to harmless error analysis, and
structural errors, which defy analysis by harmless error standards.” (citation and
internal quotation marks omitted)). An error is harmless if there is “no reasonable
possibility” that it contributed to the outcome. State v. Tulley, 2001 WI App 236,
¶7, 248 Wis. 2d 505, 635 N.W.2d 807. A reasonable possibility is “one sufficient
to undermine confidence in the outcome of the proceeding.” Id.

¶29 As we discussed above, the order issued at the hearing on June 11,
2018—emergency medical treatment for A.T—did not affect the outcome of the

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proceedings. We therefore conclude that any error created by trial counsel’s
inability to represent D.S. at that hearing was harmless. See id.

¶30 For the same reason, D.S.’s claim also fails under the ineffective
assistance of counsel rubric. Even if we assume, without deciding, that the
postdisposition court was correct in its finding that trial counsel’s payment
problems with his bar dues, which resulted in his license suspension, constituted
deficient performance, we agree that D.S. has not established that she was
prejudiced by this presumed error. Again, the trial court’s order that day had no
bearing on the final decision in these proceedings. Therefore, D.S. has not shown
that there is a reasonable probability, sufficient to undermine confidence in the
ultimate outcome, that counsel’s presumed error affected the result of the
proceedings. See Love, 284 Wis. 2d 111, ¶30.

¶31 Accordingly, we affirm the orders terminating D.S.’s parental rights.

By the Court.—Orders affirmed.

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

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