Terese J. Singer

Wisconsin Judge Denies Ineffective Assistance of Counsel Claim for Parent Whose Rights Are Terminated

In Wisconsin parental termination proceedings, a parent whose parental rights are at risk has the constitutional right to effective counsel, much as a criminal defendant has. This means that the parent must be adequately represented in court, and his or her counsel should not commit fundamental errors that prejudice the parent’s defense. When these types of errors occur, a parent may be able to have termination proceedings reopened if he or she can show that ineffective assistance occurred.

In In Re Termination of Parental Rights of A.RC and D.RC, the State of Wisconsin attempted to terminate the parental rights of D.C. D.C.’s two children, A. RC and D. RC, were removed from D.C.’s home after it was discovered that the children were being physically and sexually abused. D.C. was ultimately charged with felony crimes and sentenced to prison for this abuse. During that time, A. RC and D. RC were placed in a foster home, and conditions were set up for the eventual return of the two children to D.C. At the time, however, D.C. was barred from having contact with A. RC as a result of the criminal conviction, and thus he could not visit the kids or have significant contact with them.

About a year later, the state initiated proceedings to terminate D.C.’s rights based on his failure to meet the requirements for reunification and his failure to assume parental responsibility. During the termination proceedings process, D.C. was released from prison and acquired counsel. At an initial pretrial conference, D.C.’s counsel requested that special jury instructions be given to explain that D.C. could not fulfill his parental responsibilities because of the no-contact order and incarceration, rather than any intentional failure on the part of D.C. The judge concluded that he would consider the instructions but reserved the issue for trial. After the pretrial conference, the case was reassigned to a new judge, and the trial was pushed back. D.C. ended up with different counsel for the final trial, and, when the judge offered the standard jury instructions, D.C.’s new counsel did not request the special instructions previously offered by D.C.’s prior counsel. The jury ultimately determined that D.C.’s parental rights should be terminated.

D.C. appealed, and the Wisconsin court concluded that D.C.’s actual claim was a claim for ineffective assistance of counsel, based on the failure to object to the jury instructions. According to D.C.’s counsel at the time of trial, he had decided not to object and offer the prior instructions because he felt they would bring too much attention to D.C.’s prior conviction for child abuse.

Under Wisconsin law, ineffective assistance of counsel requires a showing that the counsel’s performance was deficient, and that deficiency prejudiced the parent’s defense. To show prejudice, a parent must establish that the counsel’s deficiencies had an actual effect on the outcome of the trial, rather than a merely speculative effect. While D.C. argued that the outcome could have been different if the jury had heard the alternative instructions, the court concluded that there was no definitive way to know that this was the case. Indeed, the State of Wisconsin argued that there was no prejudice at all because the overwhelming evidence supported the jury’s outcome, and, thus, the jury would have reached the same conclusion even with the alternative instructions. Under these circumstances, the Wisconsin Court of Appeals held that it simply could not establish prejudice. Without prejudice, the court held there was no ineffective assistance of counsel, and the termination of D.C.’s parental rights was upheld.

The ineffective assistance of counsel defense is an unusual defense in family law cases, available only to parents whose parental rights may be terminated. However, the standard for proving this defense is exceptionally high and requires a clear and significant error on the part of counsel.

If you believe that your parental rights were unfairly terminated, and your defense was prejudiced by the egregious errors of your prior counsel, you should talk with an attorney immediately. The Milwaukee child custody lawyers at Reddin & Singer, LLP can work with you to evaluate the actions of your prior counsel and determine whether any deficiencies may have occurred. To find out more about how to protect your parental rights during termination proceedings, contact the law offices of Reddin & Singer, LLP online or give us a call at 414-271-6400.

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