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COURT OF APPEALS DECISION DATED AND FILED November 12, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
¶1
¶2 Roberta makes several arguments on appeal. Roberta asserts that the trial court erred by denying her motion in limine which sought to exclude “highly prejudicial evidence” concerning her sexual conduct. She also argues that she received ineffective assistance of counsel at trial because counsel failed to object at critical times to the following: “repeated improper references” during the fact-finding phase by Walworth County Department of Heath & Human Services (WCDHHS) and the guardian ad litem to the best interests of the children; “the trial court’s improper opening instructions to the jury”; “the admission of irrelevant and inaccurate evidence concerning [Roberta’s] indigence”; “the admission into evidence of the county’s demonstrative ‘timeline’ exhibit”; and the trial court’s allowing the submission of the “timeline” exhibit to the jury during deliberations. In addition, Roberta argues that she was denied her statutory right to counsel at her dispositional hearing. Finally, Roberta argues that she is entitled to a new trial in the interest of justice.
¶3 Termination of parental rights proceedings require heightened
legal safeguards to prevent erroneous decisions. State v. Shirley E., 2006 WI 129,
¶24, 298
¶4 The supreme court emphasizes:
The
Shirley E., 298
¶5 The first step, the fact-finding phase, consists of an
evidentiary hearing to determine whether adequate grounds exist for the termination
of parental rights.
¶6 During this phase, “the parent’s rights are paramount.” Wis.
Stat. § 48.424; Shirley E., 298
¶7 The second step in a termination case is the dispositional
phase which consists of another evidentiary hearing in which the circuit court
determines whether termination of parental rights is in the child’s best
interests. Shirley E., 298
¶8 One of the procedural safeguards the legislature has afforded
to parents in termination of parental rights proceedings is the right to
counsel. Wis. Stat. § 48.23(2).
This right is unequivocal. Shirley
E., 298
¶9 One principle is that counsel must be present in court and
available to participate. Shirley
E., 298
¶10 A second principle is that counsel has a duty to provide his or
her client with zealous, competent and independent representation.
¶11 A third principle is that the statutory right to counsel
includes the right to effective assistance of counsel: “It is axiomatic that the right to be
represented by appointed counsel is worthless unless that right includes the
right to effective counsel. Representation by counsel means more than
just having a warm body with ‘J.D.’ credentials sitting next to you during the
proceedings.”
¶12 A fourth principle is that the circuit court has a duty “to
assure there was representation in court unless there was a knowledgeable and
voluntary waiver.”
¶13 A claim of ineffective assistance requires proof that counsel’s
performance was deficient, and that counsel’s deficiencies prejudiced the
defendant. See Strickland v. Washington,
466
¶14 This case involved a four-day jury trial and the record is fairly voluminous. Because our reversal is based on error—trial counsel and trial court—this review does not require us to determine the merits of the trial court’s order terminating Roberta’s parental rights and, thus, we will not recount the entire chronology of events upon which the petition for termination is based. We present pertinent facts and law both before and during our discussion.
¶15 WCDHHS first received a complaint regarding Roberta in February 2005. At that time, Roberta was living in Walworth county with her two children, Dorraj and Exsavon. A neighbor who was babysitting the children called to complain that Exsavon had spoiled milk in his bottle and that Dorraj had a diaper rash. After investigating the referral, Paula Hocking, a child protective service worker with WCDHHS, had some concerns about the condition of Roberta’s apartment and whether it was safe for the children. Because of Hocking’s concerns, WCDHHS provided informal, voluntary services to Roberta. In March 2005, Roberta called WCDHHS and said she felt overwhelmed and was not sure what to do. Hocking went over to the apartment and decided to remove the children. WCDHHS filed a petition alleging that Dorraj and Exsavon were in need of protection and services, and Roberta entered an admission to the petition. The original dispositional order was entered in June 2005, and stated the following as conditions of return for Roberta:
1. Roberta shall cooperate with a psychiatric evaluation and medication, if recommended.
2. Roberta shall cooperate with a psychological evaluation at the Department and follow through with any treatment recommendations.
3. Roberta shall continue to work with Joanna Peterson-Groth from Lutheran Social Services on parenting skills
4. Roberta shall participate in all scheduled visitation with her children.
¶16 Near the time of this June 2005 dispositional order, Roberta
moved to an apartment in
(1) Maintain her residence in a consistently safe and sanitary way for a period
of two months; (2) Roberta shall pay her bills or allow Walworth county to
become her protective payee of her funds to ensure that she has a residence for
her children to return to; and (3) Roberta will not allow anyone to live in her
home that has a felony criminal record.
¶17 Prior to Roberta’s move to
[c]onditions of return are minimal with the main
problem being Roberta’s inability to manage finances which has caused repeated
moves, evictions and homelessness. She
is willing to have her finances managed by a protective payee but this could
not be arranged prior to her moving out of
¶18 In the winter and spring of 2006, for about three months, WCDHHS
initiated unsupervised, overnight visitation.
It was then switched back to supervised visitation due to Mollet learning
that Roberta was seeing a man (Phillip S.) who had a criminal record.
¶19 Roberta’s Walworth county court order was again amended at a
hearing on July 14, 2006, to add that:
(1) Roberta shall participate in a therapeutic program to assist her to
resolve emotional problems from her childhood traumas. Treatment should also focus on Roberta’s
understanding of personal boundaries and how this presents issues for her children’s
safety; (2) Roberta shall undergo a thorough physical examination to understand
and resolve any physical problems she may have that present a risk to her
health or her ability to care for children;
(3) Roberta will participate in a parenting program and demonstrate that she
can consistently put her children’s needs first; and (4) Roberta will cooperate
with a psychiatric evaluation and abide by treatment recommendations.
¶20 During this time, Roberta continued to have frequent visits with Dorraj and Exsavon, though she was not allowed overnight visitation. Additionally, with regard to Philtarion, Roberta progressed to having overnight visitations.
¶21 On May 11, 2007, WCDHHS filed a petition to terminate Roberta’s parental rights to Dorraj and Exsavon. As grounds, WCDHHS alleged that the children were in need of continuing protection and services in that Roberta had failed to meet her conditions of return and was not likely to meet those conditions within twelve months. See Wis. Stat. § 48.415(2)(a).
¶22 Roberta’s
¶23 On February 13, 2008, after the trial and dispositional hearing, the court entered orders terminating Roberta’s parental rights to Exsavon and Dorraj.
¶24 On appeal, Roberta makes a number of arguments. First, she argues that the trial court erred by denying her motion in limine which sought to exclude evidence concerning her sexual conduct. Before trial, Roberta filed the motion in limine requesting that the court exclude from evidence: all facts and references to Roberta having given birth to two other children; all references to names of possible fathers of Philtarion given by Roberta to WCDHHS; all references to whether Roberta is currently pregnant, ever thought she was pregnant, potential fathers and any other references thereto; and all references to whether Roberta was involved in a relationship with any males. The motion was argued the first day of trial and was denied by the trial court. Subsequently, WCDHHS did present evidence to this effect at trial.
¶25 It is unnecessary for us to recount all of the sexual conduct evidence admitted. Suffice it to say, we are hard pressed to see the probative value of a good portion of the sexual conduct evidence that was admitted. However, because we reverse based on the prejudice created by the cumulative errors of trial counsel, we choose to leave this argument unaddressed,[4] excepting this one caveat: we are confident that the trial court on remand will closely examine whether admission of the sexual conduct evidence is proper if again asked to do so.
¶26 Second, Roberta argues that her trial counsel was ineffective in several instances and this caused her to be unfairly prejudiced. Roberta asserts that trial counsel was ineffective for failing to object to various references to the best interests of Dorraj and Exsavon during the trial phase of the TPR proceeding. References which she claims confused the jury as to what the purpose of this phase of a TPR is and, thus, unfairly prejudiced her. She gives several examples of times at which trial counsel should have objected in order to prevent her being unfairly prejudiced:
(1) Leslie Mollet, the Walworth county case worker, testified at length about the American Safe Families Act (ASFA) and its interaction with the children’s best interests. For example, when discussing conditions of return, she stated: “AFSA demands that we have certain time lines where by parents comply with their conditions of return where we must seek permanence for the children.”
(2) Later, in discussing the revision of Roberta’s conditions of return, the following exchange occurred:
[GAL]: And that’s why you brought in the conditions about her having relationships and trying to work on healthy relationships with guys and other issues, correct?
[MOLLET]: Correct.
[GAL]: You didn’t do that just to be mean or just to keep her kids away from her, did you?
[MOLLET]: No.
[GAL]: Your intent is to do what you think works for these kids?
[MOLLET]: What’s
best for them, yes.
(3) In closing argument, the GAL emphasized the best interests of the children:
I do agree
with [defense counsel] that this is a work in progress, but I disagree as far
as who is the work in progress. I represent
the interests of two young kids. They
are the work in progress that we need to be focusing on, not necessarily
Roberta’s work in progress….
Only thing that I can say is that Roberta’s work in progress has taken a good chunk of time, and when you’re talking about kid time and parent time there’s a big difference....
I want you
to focus on those two little works of progress and on Roberta’s progress and
lack of progress ….
(4) WCDHHS invoked the children’s best interests in its closing argument:
These children don’t have a pause button. We can’t just simply stop and make them wait, wait for Roberta to catch up; that does not give them any permanency. And they can’t wait for Roberta any longer.
(5) The trial court referred to the children’s best interest in its opening instructions to the jury. The first day of trial, the court gave jurors a preliminary instruction as to their role and function. In addition to the standard opening instruction, the court told the jury that they were all there “in the interest of these two children.” The court stated, “[Y]ou know how serious a case this is and how life changing it will be for these children.”
Upon review, it does appear that the best interests were invoked in a systematic way that could have confused the jury, and to not object to these repeated references and invocations was deficient performance on trial counsel’s part.
¶27 Roberta also argues that trial counsel was ineffective for failing to object to the trial court’s statements in opening instructions in which it several times used the term “we” when it addressed the jury:
Now it isn’t sufficient merely to place children in foster care. The children must be ordered back home if the parents meet the conditions of return. We are not in the business of rearing other people’s children; that’s not our goal in life. Our goal in life here is to correct any situation found that’s deficient and offer services so you can correct these deficiencies.
Now the parents that (sic) were given conditions of return to complete before the children could be returned to the parental care, and again we are not in the business of rearing other person’s children. We don’t scoop them in and take children; that’s not our business.
Roberta specifically contends that her trial counsel erred in not objecting to the trial court’s statements because (1) the instructions improperly focused the jury’s attention on the children’s best interests; (2) the instructions gave the impression that the court and WCDHHS were on the same side and that the court was aligned with WCDHHS’s position in favor of termination; and (3) that by telling the jury that it would have no choice but to “order[] the children back home” if the parents had met the conditions of return and suggesting that neither itself nor WCDHHS was in the business of rearing other people’s children, the court was at once legitimizing WCDHHS’s position and also telling the jury that Roberta had not met the conditions of return. In this way, Roberta argues, the trial court’s comments deprived Roberta of due process by usurping the role of the fact finder. Here again, it appears that the focus on the best interests and the court’s usage of the term “we” on several occasions could have easily confused the jury and caused it to base its decision on improper considerations. It was deficient not to pick up on this and object to it.
¶28 Roberta bases another claim of ineffective assistance of counsel on her attorney’s failure to object to the admission of “irrelevant and inaccurate” evidence concerning her indigence which invited the jury to again improperly consider the children’s best interests and to rely on its own prejudices and preconceived notions. The record shows that WCDHHS presented, without objection, a considerable amount of evidence implicating Roberta’s indigence and her receipt of public assistance. Most problematic to this court are misrepresentations made by WCDHHS, unobjected to and unimpeached by trial counsel, concerning Roberta’s alleged history of homelessness. In a timeline chart created by Leslie Mollet, Roberta is represented as “living” in a “homeless shelter” in June 2006 and again in December 2006.
¶29 At the post-disposition Machner hearing, Roberta established
that she was, in fact, not homeless either time and that trial counsel had
documentary proof of this in his discovery file. In June 2006, Roberta was near the end of her
pregnancy with Philtarion. At this time,
she still lived in her apartment in
After the baby was born, [Roberta] went directly back;
and her residence was always her place and her apartment in
With regard to the December 2006 shelter stay, trial counsel testified:
[Roberta’s] landlord wanted—was in the process of updating and remodeling the apartments; and so she had to temporarily leave her apartment, as I recall; and so she stayed at that [shelter] while her apartment was being redone.
The failure to object to the admission of misrepresentative evidence concerning Roberta’s homelessness was deficient and it ties into Roberta’s fourth ineffective assistance of counsel claim: counsel’s failure to object to the admission of WCDHHS’s timeline chart as a whole, which we also consider deficient.
¶30 Roberta argues that WCDHHS’s timeline chart was inadmissible hearsay and demonstrative evidence and should never have been admitted as a substantive “exhibit” before the jury. Roberta asserts that it was not used to refresh recollection, did not meet the elements of any hearsay exception and was not a “summary” as envisioned in Wis. Stat. § 910.06.[5] Roberta also argues that counsel should have objected to the timeline’s presence in the jury room during deliberations.
¶31 WCDHHS’s chief response to Roberta’s timeline-related arguments is that she has waived them because trial counsel failed to object at the time of trial. This response is circular and plainly ignores the ineffective assistance of counsel context in which Roberta makes her timeline arguments.
¶32 We note that trial counsel testified that he believed he made mistakes that harmed Roberta’s defense and specifically emphasized that “the biggest mistake I made was allowing that timeline in to—to the jury. I should never have done that; um, should have thought about it more. I should have looked at it closer.” We agree. The timeline chart, having been requested by the jury, appears to have had an elevated importance to the jury and, thus, to its verdict. Evidence at the Machner hearing revealed that inaccurate representations of Roberta’s homelessness were made on the timeline chart which trial counsel could have objected to and explained in a favorable light. Keeping in mind that WCDHHS used Roberta’s homelessness as somewhat of a linchpin of its case—Mollet even testified at one point that “Roberta sees homelessness as a savings plan”—trial counsel’s lack of objection to misrepresentations of Roberta’s homelessness was deficient in the context of this trial.
¶33 Having determined that trial counsel’s performance fell short
on several occasions during this trial, we now turn to the prejudice prong of
the Strickland
test. Each instance of deficient performance,
examined alone, may not have been enough to cause unfair prejudice. However, we do not examine each deficiency in
a vacuum. “Just as a single mistake in
an attorney’s otherwise commendable representation may be so serious as to
impugn the integrity of a proceeding, the cumulative effect of several
deficient acts or omissions may, in certain instances, also undermine a
reviewing court’s confidence in the outcome of a proceeding.” Thiel, 264
¶34 After evaluating the cumulative effect of trial counsel’s performance in light of the strength of WCDHHS’s case, and in light of the record as a whole, which included the strong evidence from Racine county caseworkers that Roberta was making “considerable efforts to comply with services and complete her court ordered conditions of return,” we conclude that, absent these instances of counsel error, a reasonable probability exists that the outcome of the trial would have been different. When permanently removing children from their parents, we must make all efforts to ensure the decision to do so is untainted by error. Because we find that Roberta received constitutionally inadequate representation, we reverse the decision and remand the matter to the circuit court for a new trial.
¶35 We could end here since Roberta will have a new trial. We nonetheless choose to address Roberta’s
claim that she was denied her statutory right to counsel at her dispositional
hearing. The dispositional hearing was
held on February 6, 2008. Roberta was
not present and it is undisputed that, as in the past, she was relying on
Walworth county’s transportation service to transport her to court from her
apartment in
¶36 Defense counsel objected to conducting the dispositional hearing in Roberta’s absence explaining that it was not in his client’s control:
Yesterday approximately 1:30, she got a call from Leslie Mollet … the social worker in this case, and Leslie Mollet told Roberta that there is a possibility [that despite] the arrangements [that] have been previously made to pick her up—there is a possibility that they many not be able to because of the weather, and [Mollet] suggested that [Roberta] should try to see if her brother or someone else could pick her up and bring her to Court.
At
approximately 2:30, Roberta called the on-call person over at transportation
and they said we’re not sure whether the weather is going to cancel all the
rides, we’ll know by 4:00 AM. [Roberta
informed them that] there is no way I can get alternative transportation from
my brother who lives in
[Roberta] has been trying to get a ride. When she talked to me just a few minutes ago she was on a pay phone and had tried to get a ride and was unable to get a ride, and so that presents a particular problem at least for me because, Judge, I can’t proceed without my client.
And, secondly, I think it’s a problem for the Court because in order to give her at least a minimum due process that she has the right to be here. She will need to advise me on the cross-examination and what’s happened in previous—we’ve gone through a jury trial, Judge, as you know, and she would advise me of areas, she would write notes. I cannot proceed without her and cross-exam in this case the County’s witnesses.
Secondly,
Judge, her testimony is necessary in this disposition hearing. I think it’s very pertinent for you to hear
from Roberta because it is Roberta’s parental rights that are being terminated
and I frankly don’t see how we can proceed without her presence. And her absence here is through no fault of
her own. She does not drive.
¶37 The trial court refused to continue the proceedings:
I am not
responsible for her transportation. I
recognize there is no public transportation anywhere in the County, but I am
not responsible for her transportation.
We live in a rural county … and there is adverse weather—if people don’t
like the weather in
¶38 In response to the trial court decision to hold the hearing without Roberta, defense counsel left the courtroom and did not return. The court then allowed WCDHHS to present its entire case in the absence of both Roberta and her attorney.
¶39 Thereafter, at defense counsel’s request, the court held a continued hearing at which Roberta was allowed to present evidence. However, the court refused to strike the testimony presented by WCDHHS at the prior February 6, 2008 hearing held in Roberta’s absence. On February 12, 2008, the court entered orders terminating Roberta’s parental rights to Exsavon and Dorraj.
¶40 Roberta argues that the trial court erroneously exercised its discretion
“when it implicitly found that Roberta had voluntarily absented herself from
the proceedings.” Roberta also argues
that, even if she had voluntarily absented herself, the court erroneously
exercised its discretion when it let WCDHHS present its case without the
presence of Roberta’s attorney. We agree
that the trial court did not adhere to its duty “to assure there was
representation in court unless there was a knowledgeable and voluntary
waiver.” Shirley E., 298
¶41 Here, the trial court’s decision to proceed with the
dispositional hearing after trial counsel had left the courtroom denied Roberta
of her right to counsel.
¶42 Moreover,
Wis. stat § 48.23(2) explicitly requires
that any waiver of counsel must be knowing and voluntary. Even in a TPR case where the circuit court
found a parent in default for failing to obey the court’s order to personally
attend the hearing, our supreme court held that the parent maintained her
statutory right to counsel throughout this termination of parental rights
proceeding. Shirley E., 298
¶43 Roberta argues in the alternative that her trial counsel
provided ineffective assistance of counsel when he walked out of the
proceedings. We again agree. Counsel must be present in court and
available to participate.
¶44 On a final note, we commend appellate counsel for so zealously
representing Roberta in a case that for a myriad of reasons disturbs this
court. On remand, we emphasize that the liberty
interest of parents “does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” Santosky, 455
By the Court.—Orders reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Roberta
filed notices of appeal on May 14, 2008.
The two appeals were consolidated by order of this court and, on June
24, 2008, Roberta’s motion for remand to the trial court was granted. Roberta then filed a posttermination motion
in the trial court. On July 29, 2008,
following an evidentiary Machner hearing, the trial court
denied her posttermination motion in its entirety. State v. Machner, 92
[3] ‘“Unfitness’
is an absolute requirement before parental rights may be terminated.... Parental rights may only be terminated if the
parent is unfit.” B.L.J. v.
[4] We
need not address this argument because we reach the result based upon other
dispositive grounds. See
Gross v. Hoffman, 227
[5] Wisconsin Stat. § 910.06 provides:
The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.
[6] The circuit court had the power to order trial counsel to stay at the proceeding and to sanction trial counsel for failing to obey its order if trial counsel chose to leave regardless. However, to conduct the hearing without trial counsel or parent was inappropriate.
[7] Roberta
lastly asks us to grant her a new trial in the interest of justice. We need not examine this argument in light of
our holding that Roberta is entitled to a new trial on other grounds. See Gross, 227