Columbia County DH&HS v. K. D. K.

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 25, 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. 2022AP1835 Cir. Ct. No. 2020TP3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

COLUMBIA COUNTY DEPARTMENT OF HEALTH AND
HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

K.D.K.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Columbia County:
JAMES EVENSON, Reserve Judge. Affirmed.
No. 2022AP1835

¶1 GRAHAM, J.1 K.D.K. appeals an order terminating his parental
rights to his son, C.A.K., and an order denying his postdisposition motion for a new
trial. I reject K.D.K.’s arguments and affirm both orders.

BACKGROUND

¶2 In 2017, when C.A.K. was approximately five months old, he was
removed from his mother’s home because both of his parents were incarcerated and
unable to provide care for him. There were also concerns about both parents’ drug
use. The circuit court, Judge Andrew Voigt presiding, determined that C.A.K. was
a child in need of protection or services (“CHIPS”), and the court entered a
dispositional order that identified certain conditions that each parent would have to
satisfy for C.A.K. to be returned to their homes.

¶3 In February 2020, the Columbia County Department of Health and
Human Services (the Department) petitioned for the termination of both parents’
rights, and the case was assigned to Judge Voigt. C.A.K.’s mother has not appealed
the order terminating her parental rights, and I discuss her case only to the extent
necessary to address the issues K.D.K. raises on appeal.

¶4 The Department’s petition alleged three grounds for terminating
K.D.K.’s parental rights: that K.D.K. failed to visit or communicate with C.A.K.
during periods in which C.A.K. had been placed outside of K.D.K.’s home, WIS.
STAT. § 48.415(1)(a)2. (referred to as “abandonment”); that C.A.K. was in
continuing need of protection and services and K.D.K. failed to meet the conditions
established for his safe return to K.D.K.’s home, § 48.415(2)(a)3. (referred to as

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.

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No. 2022AP1835

“continuing CHIPS”); and that K.D.K. did not have a substantial parental
relationship with C.A.K., § 48.415(6)(a) (referred to as “failure to assume parental
responsibility”). K.D.K. denied the allegations, waived the statutory time limits,
and requested a jury trial on the grounds phase of the termination of parental rights
proceeding. The jury trial was set to begin on January 4, 2022.

¶5 On December 21, 2021, the clerk of the circuit court sent an amended
notice of hearing indicating that, due to an unexpected calendar conflict, a reserve
judge would preside over the scheduled jury trial, rather than Judge Voigt. C.A.K.’s
mother requested a substitution of judge and, on December 29, 2021, the court
issued an amended notice indicating that a different judge, Judge James Evenson,
would preside over the jury trial. The notice provided: “Upon the receipt of the
Substitution Request filed by [C.A.K.’s mother], Judge James Evenson, Reserve
Judge, has been assigned to hear the trial on the original[ly] scheduled date/time.”

¶6 The next day, and four days before the jury trial was scheduled to
commence, C.A.K.’s mother requested an adjournment. She asked that the jury trial
be adjourned until such time as Judge Voigt would be available to preside because,
among other things, “he [had] been presiding over the matter throughout the
pendency of the case … [and] there is a stronger connection to the presiding judge.”
The Department joined the mother’s request. The guardian ad litem objected to an
adjournment, arguing, among other things, that C.A.K. had not lived with his
parents for more than four years and “[t]o continue to delay these proceedings is to
continue to deny [C.A.K.] the permanence he deserves.” The circuit court denied
the requested adjournment.

¶7 Judge Evenson presided over the three-day jury trial, which
commenced as scheduled on January 4, 2022. The social worker who was employed

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No. 2022AP1835

by the Department and had been assigned to C.A.K.’s case testified at the trial.
K.D.K. also testified.

¶8 One of K.D.K.’s primary defenses was that it had been difficult for
him to visit and communicate with C.A.K., to satisfy the conditions of return, and
to assume parental responsibilities because he had been incarcerated on and off, and
he had suffered a series of injuries that required medical attention and several
surgeries. K.D.K. asked the court to include an “impossibility to perform” question
on the special verdict, which would have asked: “Was it impossible for [K.D.K.] to
meet all the conditions established for the safe return of [C.A.K.] to [K.D.K.’s]
home?” The court declined to add that question to the special verdict.

¶9 At the conclusion of the trial, the jury found that the Department met
its burden on all three grounds to terminate K.D.K.’s parental rights. Specifically,
regarding abandonment, the jury found that K.D.K. failed to visit or communicate
with C.A.K. for three months or longer during the time that C.A.K. was placed
outside the home, and that K.D.K. did not have good cause for failing to visit with
C.A.K. during that period. Regarding the continuing CHIPS ground, the jury found
that the Department made a reasonable effort to provide court-ordered services to
K.D.K., but that K.D.K. failed to meet the conditions established for C.A.K.’s safe
return to the home. And finally, on the failure to assume parental responsibility
ground, the jury found that K.D.K. failed to assume parental responsibility for
C.A.K.

¶10 Judge Evenson also presided over the dispositional hearing, held the
following month, at the conclusion of which he granted the Department’s petition
to terminate K.D.K.’s parental rights.

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No. 2022AP1835

¶11 K.D.K. appealed the dispositional order. He then filed a motion
pursuant to WIS. STAT. RULE 809.107(6)(am), which asked this court to remand to
the circuit court so that he could file a postdisposition motion.2 We granted the
motion, retained jurisdiction of the appeal, and remanded for the circuit court to
hold a postdisposition proceeding.

¶12 On remand, K.D.K. filed a motion that requested a new trial on several
grounds. Judge Evenson presided over the postdisposition hearing on January 9,
2023, and K.D.K, trial counsel, and the Department’s social worker testified at the
hearing. The circuit court denied the motion for a new trial, and K.D.K. appeals the
order denying that motion as well.

¶13 Additional facts about the evidence presented at the jury trial, the
evidence presented at the postdisposition hearing, and the circuit court’s reasons for
denying K.D.K.’s motion for a new trial are summarized as needed in the discussion
below.

DISCUSSION

¶14 On appeal, K.D.K. contends that there is no evidence in the record
showing that Judge Evenson was properly assigned to preside over the circuit court
proceedings, and K.D.K. argues that the order terminating his parental rights is void
on that basis. He also argues that the circuit court erred by denying his request for
a special verdict question regarding impossibility. Finally, he contends that trial

2
See WIS. STAT. RULE 809.107(6)(am) (“If the appellant intends to appeal on any ground
that may require postjudgment fact-finding, the appellant shall file a motion in the court of appeals
… raising the issue and requesting that the court of appeals retain jurisdiction over the appeal and
remand to the circuit court to hear and decide the issue.”).

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No. 2022AP1835

counsel was ineffective by failing to request a judicial substitution after learning
that Judge Evenson would preside over the trial, and failing to obtain and present
medical records at trial that would have substantiated the dates of K.D.K.’s
surgeries.3 I address these arguments in turn.

I.

¶15 K.D.K.’s first and most prominent argument concerns Judge
Evenson’s authority to preside over the dispositional phase of the proceeding.

¶16 By way of background, K.D.K.’s postdisposition motion questioned
whether Judge Evenson had been properly assigned to the proceeding pursuant to
WIS. STAT. § 751.03 and SCR 70.23. K.D.K. pointed out that the record did not
contain an application for a judicial assignment form, which would have been signed
by a court official, the chief judge, or the district court administrator. K.D.K.
argued: “The lack of an official form that is usually used to document reassignment
of cases in circuit courts rebuts the presumption of regularity.”

¶17 At the postdisposition hearing, the circuit court asked K.D.K.’s
attorney whether he intended to present any evidence related to the judicial
assignment issue, and K.D.K.’s attorney indicated that he did not. Judge Evenson
explained that he had not been assigned to the case pursuant to a case-specific
assignment, but had instead been assigned pursuant to a general judicial assignment
to cover Judge Voigt’s entire calendar for a number of days while he was on an
unplanned leave. Judge Evenson had the assignment order entered into the record.
The order was electronically signed by the director of state courts on behalf of the

3
K.D.K. also argued that trial counsel was ineffective for failing to sufficiently
communicate with K.D.K. in preparing for trial, and for failing to request an adjournment of the
trial date, but he does not renew those arguments on appeal.

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No. 2022AP1835

chief justice of the Wisconsin Supreme Court, and it was dated January 5, 2022,
which was the second day of the dispositional hearing.

¶18 K.D.K. did not take issue with the date of the signed assignment order
during the postdisposition hearing, nor did he ask any questions about whether the
assignment had been made prior to the date of the assignment order, or how it had
been communicated to Judge Evenson. However, in his post-hearing memorandum
to the circuit court, he argued that, because there was no evidence in the record to
support Judge Evenson’s assignment until the second day of trial, “the presumption
of regularity [had] not been established and … the court lacked authority to rule
upon the motion for adjournment and preside over the jury trial.” Accordingly, he
argued, “[t]he results of the jury trial and subsequent [dispositional order] are void.”

¶19 The circuit court rejected this argument. It determined that the facts,
including the December 29, 2021 notice that Judge Evenson would be presiding
over the jury trial, establish that “the clerk of court, [Judge Evenson himself], and
counsel for all parties were aware of the [assign]ment.” The court explained that
the assignment process allows “for immediate assignment when needed … on
extremely short notice,” with a “paper[] trail” that is documented at a later date. The
court determined that the assignment order “was appropriate, even though it was
dated after the commencement of the trial and any pretrial proceedings.”

¶20 K.D.K. renews his argument about the propriety of Judge Evenson’s
assignment on appeal. He argues that neither the Department nor Judge Evenson
had shown that Judge Evenson was properly assigned under WIS. STAT. § 751.03 or
SCR 70.23, that the fact that the assignment order was not signed until the second
day of trial rebuts the presumption of regularity, and that the proceedings were void.
I reject the argument for at least the following four reasons.

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No. 2022AP1835

¶21 First, K.D.K. has not established any statutory violation. WISCONSIN
STAT. § 751.03(1) provides: “The chief justice of the supreme court may designate
and assign reserve judges … to serve temporarily in … the circuit court for any
county. While acting under a temporary assignment, an active or reserve justice or
judge may exercise all the authority of the court to which he or she is assigned.”
That is what occurred in this case. The statute does not set forth any specific process
by which the assignment must be made, nor does it provide that the assignment must
be documented in any particular way or by any particular date.

¶22 Second, to the extent that K.D.K. is arguing that there is no evidence
that the process used in this case complied with our supreme court’s rules of judicial
administration, SCR 70.23, that argument is a nonstarter. “[I]t is well established
that this court is without authority to review administrative actions by the circuit
court” Petitioner v. Evans, 2018 WI App 53, ¶15, 383 Wis. 2d 669, 917 N.W.2d
218. So, too, is this court without authority to review administrative actions taken
by the director of state courts or the chief justice of our supreme court. See id., ¶16.

¶23 Third, the cases K.D.K. relies on regarding the “presumption of
regularity” have nothing to do with the proper method for making and documenting
judicial assignments. See State v. Haugen, 160 Wis. 494, 497-98, 152 N.W. 176
(1915) (considering whether the “presumption as to substantial compliance” that
applies to courts of general jurisdiction also applies when evaluating whether the
state tax commission properly exercised its statutory authority); Howard v. Preston,
30 Wis. 2d 663, 667-69, 142 N.W.2d 178 (1966) (addressing an error made in the
service of a summons and complaint, which is a requirement to obtain personal
jurisdiction over a party).

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No. 2022AP1835

¶24 Finally, K.D.K. cites no authority whatsoever for the proposition that
an omission in the documentation of a judicial assignment—and, to be clear, I do
not conclude that any omission occurred here—could render the proceedings void.

II.

¶25 K.D.K. also argues that the circuit court erred when it declined to
include a question on the special verdict asking the jury whether it had been
impossible for K.D.K. to perform the conditions of return set forth in the CHIPS
dispositional order.4 The Department distinguishes the facts of this case from the
facts of the leading case on this topic, Kenosha Cnty. v. Jodie W., 2006 WI 93, 293
Wis. 2d 530, 716 N.W.2d 845, and it contends that the court properly exercised its
discretion in declining to include the question.

¶26 Although I generally agree with the Department’s analysis, I reject
K.D.K.’s argument for a more basic reason. Erroneous verdict questions are subject
to a harmless error analysis; the question is whether it is clear beyond a reasonable
doubt that a rational jury would have reached the same result absent the error. See
State v. Beamon, 2013 WI 47, ¶50, 347 Wis. 2d 559, 830 N.W.2d 681. K.D.K. is
not entitled to a new trial if the failure to add the question to the special verdict was
harmless.

¶27 Here, the special verdict question that K.D.K.’s counsel requested
specifically pertained to the continuing CHIPS ground for termination of parental

4
Actually, in his appellate briefing, K.D.K. appears to be asserting that the error was the
court’s failure to give a jury instruction about the impossibility defense. However, K.D.K.’s
counsel never proposed that the court give any such instruction—counsel’s request was limited to
adding a question about impossibility to the special verdict. To the extent that K.D.K. is arguing
on appeal that the court should have given an instruction to the jury about the impossibility defense,
that argument is forfeited. WIS. STAT. § 805.13(3); see also State v. Beamon, 2013 WI 47, ¶47,
347 Wis. 2d 559, 830 N.W.2d 681.

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No. 2022AP1835

rights. However, that was just one of the three grounds that the jury found to justify
the termination of K.D.K.’s parental rights. K.D.K.’s counsel did not ask for an
impossibility instruction or special verdict question regarding the other two
grounds—abandonment and failure to assume parental responsibility. And on
appeal, he does not attempt to explain why I should conclude that, had the jury been
asked to determine whether it was impossible for K.D.K. to perform the conditions
of return, that question would have led the jury to reach different verdicts on the
abandonment and failure to assume parental responsibility grounds. I therefore
conclude that, even if the court erred by declining to ask that question—and, again,
I do not conclude that the court erred—any such error would have been harmless.

III.

¶28 The final issue is whether K.D.K.’s trial counsel was ineffective.
K.D.K. argues that he was ineffective for two reasons, but I reject both arguments.

¶29 To demonstrate that trial counsel was ineffective, K.D.K. must
establish that counsel’s performance was deficient and that the deficient
performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Counsel’s performance is constitutionally deficient [only] if it falls below an
objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. Counsel’s deficient performance is prejudicial if
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “Whether a defendant was denied effective assistance of counsel
presents a mixed question of law and fact.” State v. Breitzman, 2017 WI 100, ¶37,
378 Wis. 2d 431, 904 N.W.2d 93

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No. 2022AP1835

A.

¶30 K.D.K. first argues that trial counsel was ineffective for failing to
request a judicial substitution. The circuit court concluded that counsel’s
performance was deficient because counsel had been unaware of K.D.K.’s statutory
substitution right and did not advise K.D.K. of that right, and I agree with that
conclusion. However, I also agree with the court’s conclusion that K.D.K. has not
shown that he was prejudiced by the omission.

¶31 K.D.K. indicates that he had a strong preference for the trial to be
presided over by Judge Voigt. He argues that, had counsel requested a substitution,
it is possible that a substitute judge would not have been identified in time to preside
over the scheduled trial, and that there would have been no option but to adjourn the
trial until a later date, possibly after Judge Voigt had returned from his leave of
absence. To the extent that this is an argument about prejudice, I reject it for two
reasons.

¶32 First, K.D.K.’s argument is highly speculative. As the circuit court
observed, “in all likelihood,” another judge other than Judge Voigt would have been
assigned to preside over the scheduled trial.

¶33 Second, even assuming that a request for substitution would have
ultimately resulted in Judge Voigt presiding over the jury trial, K.D.K. does not
make any argument that “there is a reasonable probability that … the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Indeed,
K.D.K. tacitly acknowledges that he cannot demonstrate that the results of the
proceeding would have been different.

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No. 2022AP1835

¶34 Instead, K.D.K. appears to be arguing that he does not have to make
that showing. He argues that K.D.K. was not able to exercise the right of
substitution, which is an important “procedural right[] enshrined in the juvenile
code,” and that the “deprivation of a statutory right” is in itself enough to establish
prejudice. To the extent that K.D.K. means to argue that counsel’s error was per se
prejudicial, he does not cite any authority for that position, which appears to be an
incorrect statement of the law. See, e.g., State v. Damaske, 212 Wis. 2d 169, 200-
202, 567 N.W.2d 905 (Ct. App. 1997) (rejecting a proposed “per se rule” that would
relieve a defendant of the burden to show prejudice in cases in which counsel’s
deficiency results in the defendant failing to timely request a substitution of the
assigned judge).

B.

¶35 I now turn to K.D.K.’s second argument about counsel’s
ineffectiveness—that counsel failed to subpoena K.D.K.’s medical records, which
resulted in them not being available for introduction as evidence during the trial. As
mentioned, K.D.K.’s primary defense was that it had been difficult to visit and
communicate with C.A.K., to meet the conditions of return, and to assume parental
responsibility as a result of K.D.K.’s on-and-off periods of incarceration and three
major surgeries that occurred between 2017 and 2019. He argues that the medical
records would have bolstered this defense, and that counsel was ineffective for
failing to obtain them.

¶36 Trial counsel testified about this issue during the postdisposition
hearing as follows. Counsel considered obtaining “medical records relating to three
surgeries that [K.D.K.] testified about that occurred … during the course of the
CHIPS order.” However, after reviewing the file more closely, counsel “found that

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No. 2022AP1835

the surgeries were referred to in the [social worker’s] file,” which “corroborated
those injuries in the same way that [K.D.K.] had described them.” Counsel
determined that it would be possible to present evidence about how the surgeries
affected K.D.K’s “ability to communicate” through the social worker’s notes. Then,
during the jury trial, counsel introduced facts about K.D.K.’s medical issues and
surgeries through the testimony of K.D.K. and the social worker, and the
Department did not dispute any of those facts. As K.D.K. acknowledged at the
postdisposition hearing, “nobody questioned [him] or denied that [he] had [the]
surgeries.”

¶37 On appeal, K.D.K. argues that the medical records would have
bolstered his defense by providing “specific dates for K.D.K.’s medical problems
during the term of the CHIPS order [that] neither he nor [the social worker] were
able to provide at trial.” However, the circuit court determined that counsel’s
performance was not deficient and that K.D.K. was not prejudiced, and I agree on
both counts.

¶38 As for deficiency, the circuit court determined that “[t]he failure of
trial counsel to obtain the records was not ineffective and represented [counsel’s]
strategic decision in how to get the evidence before the jury.” I agree. Counsel
decided against seeking out cumulative evidence about K.D.K.’s medical conditions
and surgeries, and K.D.K. does not persuade me that this decision falls below an
objective standard of reasonableness. Thiel, 264 Wis. 2d 571, ¶19. At best, K.D.K.
refers to this decision as “less than optimum performance,” but counsel’s
performance need not be “optimum” to be considered constitutionally effective. See
State v. Shata, 2015 WI 74, ¶56, 364 Wis. 2d 63, 868 N.W.2d 93 (“[C]ounsel’s
performance need not be perfect, nor even very good, to be constitutionally
adequate.” (citation omitted)).

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No. 2022AP1835

¶39 As for prejudice, K.D.K. argues that his testimony would have been
“more effective” if he had access to the medical records because “[a] witness who
can provide exact dates is more credible than one who can only guess [about dates].”
Whether or not this is the case, I am not persuaded that the result of the trial would
have been any different had counsel obtained the medical records. As the circuit
court explained, “[n]one of the claims of injury or surgery or medical issues of
[K.D.K.] were controverted, and in fact, [the claims] were supported through the
testimony of the social worker.” At trial, both the social worker and K.D.K. testified
about his injuries, and I see no reason to believe that the jury did not credit their
undisputed testimony on this topic.

By the Court.—Orders affirmed.

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

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