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Full Opinion
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 8, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP2406 Cir. Ct. No. 2021TP23
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.R.R., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
D.R.-R.D.J.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Kenosha County:
JODI L. MEIER, Judge. Affirmed.
No. 2024AP2406
¶1 LAZAR, J.1 Diane2 appeals, again,3 from an order terminating her
parental rights to her now ten-year-old daughter, Sarah, on the grounds that Diane
was denied her constitutional right to counsel of her choice, or in the alternative,
that the court-appointed trial counsel who represented her provided ineffective
assistance of counsel during the jury trial on whether grounds existed to terminate
Diane’s parental rights.
¶2 Kenosha County, by its District Attorneys’ office, representing the
petitioner in the underlying termination of parental rights case, asserts that the trial
court did not violate Diane’s rights to counsel of her choice because she never
retained alternate counsel and her proposed counsel was not entitled to a court
appointment. The County also argues that the attorney appointed by the court to
represent Diane did not provide her with ineffective assistance of counsel and asks
that the court’s order be affirmed. The guardian ad litem stands with the County.
¶3 This court concludes that the trial court did not erroneously exercise
its discretion when it refused to remove a court-appointed attorney and issue a new
appointment. At no point was Diane prohibited from retaining separate counsel.
This court also concludes that, because Diane did not meet her burden to prove
that the court-appointed attorney performed deficiently or that she suffered any
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
2
To protect their confidentiality, pursuant to WIS. STAT. § 809.19(1)(g), the mother and
child are referred to by the pseudonyms selected in the mother’s brief: Diane and Sarah.
3
Previously, Diane had appealed an order terminating her parental rights to Sarah
entered in March 2022 after Diane failed to appear at a hearing. This court, in a one-judge
opinion, pursuant to WIS. STAT. § 752.31(2)(e) (2021-22), reversed the order and remanded the
matter back to the circuit court for further proceedings. See Kenosha Cnty. Div. of Child & Fam.
Servs. v. D.R.-R., No. 2022AP1812, unpublished slip op. (WI App June 1, 2023).
2
No. 2024AP2406
prejudice, she cannot establish ineffective assistance of counsel sufficient to
warrant a new trial. Thus, this court affirms.
BACKGROUND
¶4 Most of the background details with respect to the petition for
termination of parental rights filed by the County are set forth more fully in the
previous appeal, Kenosha Cnty. Div. of Child & Fam. Servs. v. D.R.-R.,
No. 2022AP1812, unpublished slip op. (WI App June 1, 2023), and are
incorporated here. Accordingly, only the facts pertinent to this appeal will be
outlined.
¶5 Diane, born in Guatemala, left school in the first grade, and is unable
to read or write. Id., ¶2. Her primary language is Kaqchikel.4 Id., ¶5 n.5. Diane
entered the United States in December 2018 with Sarah, who was then three years
old. Id., ¶2. In March 2019, Sarah suffered severe injuries indicative of physical
and sexual abuse accompanied by significant blood loss that ultimately required a
transfusion. At the time, Diane was living with multiple families and a total of six
children, including Sarah, whose ages ranged from two to twelve years; these
children were typically left alone at night.
¶6 One of the individuals living in the apartment with Diane saw an
injury to Sarah’s face and later saw her undressed and bleeding. The individual
encouraged Diane to take Sarah to the hospital; she did not do so. Instead, Diane
4
At various points of the case, Diane’s language was also referred to as K’iché.
D.R.-R., No. 2022AP1812, ¶5 n.5. Kaqchikel is very similar to K’iché; both are not Guatemalan,
but rather Mayan dialects. It appears that this distinction was raised only in the current
post-termination proceedings.
3
No. 2024AP2406
bathed Sarah and took her to a neighborhood market. An employee at the market,
noticing the blood, also urged Diane to take Sarah to the hospital; again, she did
not. Instead, the employee drove Diane and Sarah to the nearest emergency
room.5
¶7 The County (the Juvenile Intake, Child Protective Services and the
Police Department) were advised of Sarah’s injuries and removed her from
Diane’s care, placing her with foster parents. In April 2019, the County filed a
CHIPS6 petition alleging Sarah to be a child in need of protection or services,
pursuant to WIS. STAT. § 48.13, on multiple grounds of neglect, abuse, and sexual
assault. The circuit court adjudicated Sarah to be a child in need of protection or
services, and she remained outside of the home until Diane could meet the
court-imposed conditions of return.
¶8 For the next two and one-half years, the CHIPS case proceeded in
the circuit court, and Diane never met the conditions for Sarah’s return. On
March 29, 2021, the County filed a petition to terminate Diane’s parental rights on
the grounds of abandonment (pursuant to WIS. STAT. § 48.415(1)(a)2-3) and a
continuing need of protection or services (pursuant to § 48.415(2)). Following a
non-appearance by Diane, the court held her in default and, after a disposition
5
Sarah was treated for the hemorrhaging from her vagina and facial bruising, and she
was transferred to Children’s Hospital where she received “aggressive resuscitation inducing
blood transfusions.”
6
CHIPS stands for child in need of protection or services. See WIS. STAT. § 48.13.
4
No. 2024AP2406
hearing, Diane’s parental rights to Sarah were terminated.7 See WIS. STAT.
§ 48.424(1).
¶9 Diane appealed, and in June 2023, this court reversed the default
finding and remanded the matter for further proceedings. D.R.-R.,
No. 2022AP1812, ¶40.
¶10 In March 2024, the trial court held a four-day jury trial to determine
whether there were grounds for terminating Diane’s parental rights. The County
called ten witnesses including a sheriff captain (also born in Guatemala) who
provided interpretation services, a Child Protection Services supervisor, a child
abuse pediatrician from the Medical College and Children’s Hospital Wisconsin,
facilitators from Children’s who supervised visitations, a County social worker, a
Project Home case manager, a clinical psychologist, and Sarah’s therapist. Diane
did not testify or call any witnesses.
¶11 The jury returned verdicts finding both grounds to terminate Diane’s
parental rights. The second phase of the TPR case—the dispositional hearing
regarding Sarah’s best interests—took place on June 20, 2024, where both a
County social worker and Diane testified. The trial court concluded that it was in
Sarah’s best interest that Diane’s parental rights be terminated.8 Following entry
7
A termination of parental rights case “involve[s] a two-step process.” Tammy W-G. v.
Jacob T., 2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854. The first step is the fact-finding
hearing on grounds for termination. Id. “The second-step, the dispositional hearing, occurs only
after the fact-finder finds a … ground has been proved and the [trial] court has made a finding of
[parental] unfitness.” Id., ¶19. It is in the second step that the court considers the best interest of
the child. Id. The court is the fact-finder at the dispositional hearing.
8
The parental rights of Sarah’s father were also terminated in the same order. Those
rights are not at issue in this appeal.
5
No. 2024AP2406
of an order to that effect, Diane filed a postconviction motion seeking a new trial
on the grounds that her trial counsel provided ineffective assistance of counsel and
that the trial court violated her right to counsel when it denied her request for
counsel of her choice.
¶12 In March 2025, the trial court held a two-day Machner9 hearing at
which the court-appointed trial counsel testified. The court issued an oral ruling
on June 12, 2025, denying the postconviction motion. An order to that effect was
entered the same date. Diane appeals.
DISCUSSION
¶13 Diane raises two issues. First, she contends that the trial court
violated her constitutional rights to counsel of her choice when it denied her
request to replace the court-appointed attorney with separate counsel. Next, Diane
asserts that her court-appointed attorney provided ineffective assistance of counsel
that prejudiced her when he failed to object to certain evidence, among other
concerns. On neither issue does Diane prevail.
I. Right to Counsel of Choice
¶14 All defendants—and parents facing a termination of parental
rights—share a constitutional right to select the counsel of their choice. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). That right, however,
is not absolute. For instance, a party cannot continually fire court-appointed
counsel and request new counsel in an effort to delay proceedings. State v.
9
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
6
No. 2024AP2406
Lomax, 146 Wis. 2d 356, 361, 432 N.W.2d 89 (1988). Moreover, the right to
counsel of choice “is circumscribed in several important respects.” Wheat v.
United States, 486 U.S. 153, 159 (1988). There are times when this right “must
yield to the ‘need for a fair and efficient administration of justice[.]’” United
States v. Sinclair, 770 F.3d 1148, 1154 (7th Cir. 2014) (quoting United States ex
rel. Kleba v. McGinnis, 796 F.2d 947, 952 (7th Cir. 1986)). As well, and of
import in this appeal, “‘the right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.’” United States v.
Sutton, 127 F.4th 1067, 1070 (7th Cir. 2025) (quoting Gonzalez-Lopez, 548 U.S.
at 151); Carlson v. Jess, 526 F.3d 1018, 1025 (7th Cir. 2008) (“an indigent
defendant generally has no right to have [their] counsel of choice appointed”).
“Whether trial counsel should be relieved and a new attorney appointed is a matter
within the [trial] court’s discretion.” State v. Jones, 2010 WI 72, ¶23, 326 Wis. 2d
380, 797 N.W.2d 378.
¶15 This court independently reviews whether a party has been deprived
of a constitutional right, id., including a right to counsel of their choice. Factual
findings underlying the trial court’s exercise of discretion may not be arbitrary or
unreasonable, but rather “must be the product of a rational mental process by
which the facts of record and law relied upon are stated and are considered
together for the purpose of achieving a reasoned and reasonable determination.”
Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).
¶16 The trial court, in its oral ruling, set out its rationale for the
appointment of trial counsel as well as its denial of the “request” by Diane and
efforts of Diane’s prior appellate counsel to secure a different trial counsel for the
remanded matter. The court specifically appointed trial counsel for Diane due to
7
No. 2024AP2406
[h]is extensive experience with CHIPS and TPR cases and
given the serious nature of a TPR case and the serious
rights that are at stake [the court] wanted [to] approve an
attorney with whom the [court] knew to be dedicated and
capable of properly trying a termination of parental rights
case complete with a jury trial, and contested disposition,
and in whom this [court] had confidence in to try the case
properly, and provide effective assistance of counsel.
¶17 In October, two months after the trial court appointed an attorney,
Diane’s prior appellate attorney wrote to the court (in the CHIPS action) advising
that she’d been in communication with Diane, and that the attorney had arranged
for a new trial attorney for Diane.10 That letter included a typed, unsigned letter
from Diane (in English and Spanish, not K’iché) indicating that Diane wanted a
different attorney to represent her. That letter, now signed by Diane, was then
filed in the TPR action. The court explained that the letter gave no good reason to
support the switch other than that the new attorney spoke Spanish. Because Diane
is not fluent in Spanish, the court believed that it “would be risky to communicate
in Spanish” when Diane’s native language is K’iché, an indigenous Mayan dialect.
¶18 At the time the October letter was filed, the case was set for a
December 4, 2023 jury trial. In November 2023, because the court-appointed
attorney was having difficulties reaching Diane,11 the trial was adjourned to March
2024.
10
The September 2023 letter in the Record appears to be missing a second page.
11
Diane did not appear at the November 2023 hearing. The trial court wondered
whether the communication troubles the court-appointed attorney was having reaching Diane was
“due to interference” from the two attorneys seeking to interject themselves into the action on
behalf of Diane.
8
No. 2024AP2406
¶19 At the next hearing in December 2023, Diane did appear and the trial
court addressed her letter. Diane “was advised that she could hire her own
attorney at any time” but the court found it was “clear” “that [Diane] didn’t have
any legitimate basis to ask for a different attorney.” Diane stated “if [the
court-appointed attorney’s] okay then that’s fine with me.” She added, “I just
want to make sure that he will work on my case because this is a very difficult
case[.]”
¶20 The new attorney was persistent and, on December 27, 2023,
personally wrote to the trial court in the TPR action that “she’d been approached
by [Diane] about representing her in this case.” While the new attorney offered to
accept the appointment and to work pro bono, the court had no familiarity with
this attorney, and she was not on the court’s advocate counsel list. Accordingly,
the court did not change its appointment.
¶21 The trial court recognized that “these proceedings require heightened
legal safeguards to prevent erroneous decisions[,]” but, citing to Dane County
Department of Human Services v. Mabel K., 2013 WI 28, 346 Wis. 2d 396, 828
N.W.2d 198, explained that it had “no such familiarity or confidence” with the
proposed attorney as it did with the attorney it had already appointed. The
attorney appointed by the court was on the court’s advocate counsel list; the
proposed attorney was not. The court further explained that the appointed attorney
“knew … what he’s doing, is highly experienced, is highly successful, and it is not
uncommon in the age of attorney shortages for Judges here in Kenosha County to
directly ask an attorney to take a case[.]”
9
No. 2024AP2406
¶22 In its post-termination oral ruling, the trial court relied upon State v.
Suriano12 and held that “[i]ndigent defendants do not have a right to an attorney of
their own choice,” but they do “have the right to effective assistance of counsel.”
The trial court asserted it had properly exercised its discretion in appointing a
well-known, highly experienced TPR attorney for Diane. Even so, the court
continued, “[a]t no time did [it] prevent [Diane] from hiring her own attorney.”
The court even listed the steps that Diane or her proposed new attorney could have
taken to effectively switch counsel:
Diane “could have contracted” with the new attorney as she had been
told she could do at the December 2023 hearing.
The new attorney could have filed a Notice of Retainer or a motion to
change representation.
The new attorney could have appeared at a hearing seeking substitution
of counsel.13
¶23 Since none of these steps were taken, the trial court “reject[ed]” the
contention that Diane’s right to counsel was violated by her not obtaining the
counsel she (apparently) wanted. The court also rejected any argument that the
court-appointed attorney had a responsibility to withdraw when he learned that
12
2017 WI 42, ¶21, 374 Wis. 2d 683, 893 N.W.2d 543 (“Indigent defendants who cannot
afford to pay for an attorney, however, do not have a right to an attorney of their own choice or
the right to successive appointments.”)
13
The trial court also noted that the new attorney had strings attached to her offer: she
wanted a court appointment so she should could obtain pro bono credit.
10
No. 2024AP2406
another attorney wanted his court appointment. That lack of action was also held
by the trial court not to be ineffective assistance of counsel.
¶24 No one disputes that the trial court was within its rights to appoint an
attorney for a parent in a termination of parental rights proceeding who fails to
meet the SPD eligibility requirements—as Diane did in this case. The question
here is whether the court erred when it learned, midway into the remanded case,
that different counsel sought to be appointed to represent Diane. This court
concludes that the court did not erroneously exercise its discretion when it denied
new counsel’s request to obtain a court appointment. Even with its refusal to
change appointments, that court did not bar Diane from taking any steps to secure
other counsel. Diane still held those cards in her hand.
¶25 In reaching this conclusion, this court first recognizes the unique
facts in this matter, and just as the trial court, it looks somewhat askance at the
concept that it was Diane who was seeking new counsel. The initial letter from
Diane seeking new counsel is typed and is in Spanish and English. Diane cannot
type, and she does not speak either Spanish or English. The letter was filed the
same date that her prior appellate counsel filed a letter in the prior CHIPS matter,
seeking to intervene or obtain appointment. The trial court “surmise[d]” that the
new attorneys wrote the letter, had Diane sign it, and then they sent it to the court.
That court even mentioned that the Wisconsin State Supreme Court Rules
“prohibit an attorney from communicating with a person he or she knows is
represented by another attorney about the subject of the representation without
11
No. 2024AP2406
consent of the other attorney or authority by law which there wasn’t any or a court
order.”14 Nonetheless, the new attorney persisted.
¶26 Next, despite the trial court’s statement to Diane (translated into
K’iché) that she “could hire her own attorney at anytime,” Diane took no steps to
effectuate a change in counsel. After the appointment of new trial attorney
following remand for a new grounds trial, Diane appeared in court with that
attorney and did not object to the representation. Even after “her” letter to the
court, Diane failed to appear at the next scheduled court date to push for new
counsel. When Diane did appear at the following hearing, she stated that her prior
appellate attorney had written the letter and basically told Diane to send it so that
attorney could be back on the case. She did not assert that there were grounds to
remove the court-appointed attorney.15 Following the court’s refusal to remove
the trial attorney, Diane made no further requests for different counsel—not during
the grounds trial, the contested disposition hearing, or any other time prior to her
post-termination motion.
14
This court is not implying or holding that the new attorneys violated any SCR’s in
their efforts to secure their participation as counsel for Diane.
15
Diane now claims that there were reasons to remove the court-appointed attorney. She
cites to the rescheduled trial when the court-appointed attorney had difficulties reaching her. But,
the trial court believed that these difficulties were the result of the two new attorneys reaching out
to Diane. She cannot claim difficulties in communication as a basis for a new appointment when
the new attorneys are causing the difficulties.
Additionally, Diane asserts that the court-appointed attorney did not speak her language,
but neither did the new attorney. Finally, it is only the prior appellate counsel who raised the
issue that Diane had “continued confusion over case matters” and that Diane was “more
comfortable with a Spanish-speaking female attorney.” Diane never stated that to the trial court
when it questioned her following “Diane’s” letter to the court. Diane never stated these concerns
or preferences in any subsequent hearing, and more tellingly, Diane did not testify at the
Machner hearing.
12
No. 2024AP2406
¶27 Finally, the proposed new attorney never filed a Notice of Retainer
or Motion for Substitution of Counsel. That attorney never appeared before the
trial court with Diane’s approval. That attorney did write to the court and say she
had “been approached” by Diane “about representing her” in the TPR action, but
nothing more. The attorney, however, had strings attached to her pro bono offer:
she sought a court appointment or else she would not represent Diane. When the
court declined to appoint that attorney—someone it did not know and who was not
on the court’s advocate counsel list—the new attorney took no further actions.
And, at no point during the hearings, the grounds phase trial, the disposition
hearing, or otherwise did Diane raise any concerns about her court-appointed
attorney or ask for a new appointment. In fact, in early December 2023, Diane
accepted that the court-appointed attorney would work on her difficult case.
¶28 Diane asserts that the trial court and the County miss the point
because, once the new counsel agreed to represent Diane pro bono, this was no
longer a court-appointment issue. And, Diane now on appeal appears to assert that
the appellate attorney letter was actually a motion to substitute appointed counsel.
Neither argument has merit.
¶29 Quite bluntly, Diane did not “secure[] no-cost representation” which
would have rescinded her petition for appointment of counsel and affidavit of
indigency. At best, Diane contingently secured no-cost representation. Diane
neglects to recognize that her “no-cost” representation only took effect if the trial
court withdrew the first appointment and appointed the appellate counsel’s
suggested attorney. The court declined to do so but—and here’s the critical
point—it granted Diane the ability to hire any attorney, even the potentially
“no-cost” one.
13
No. 2024AP2406
¶30 Diane further argues that her “new” no-cost attorney provided
adequate notice to the trial court with the second letter and proposed order. Even
if the letter constituted a motion for substitution, it was not a cut-and-dry motion.
It was a motion to obtain a court appointment. It was not a substitution motion.
That being the case, the court had the discretion to determine whether to remove a
known commodity in a highly complicated TPR case and replace him with an
unknown, non-local attorney. It made a reasoned decision and denied the
“motion.” That denial, however, was not the end of the matter. Diane still had the
ability to hire the new attorney at no or little cost. Diane still had the opportunity
to tell the court communications with the court-appointed attorney were
irretrievably broken or that she had no faith in that attorney. Diane still had
options, including asking the new attorney to drop the demand for a court
appointment. She used none of these. Diane cannot now argue both sides: that it
was no longer an appointment situation but she was entitled to a new appointment.
¶31 Given these undisputed facts, this court is hard-pressed to accept that
Diane took early or sincere efforts to secure separate counsel of her choice. It is
clear that Diane’s prior appellate counsel—despite her lack of experience as a TPR
trial attorney—wanted to remain allied with Diane and wanted to find a trial
attorney she felt comfortable with and with whom she could assist from the
sidelines.16 That wish was the appellate attorney’s, not necessarily Diane’s. Had
Diane truly wanted a different trial attorney, she was advised that she could hire
one at any time. She did not do so. She could have renewed or repeated a
16
Had the prior appellate attorney so wished, she could have offered to assist the current
court-appointed attorney from the sidelines.
14
No. 2024AP2406
preference for a female attorney. She did not do that either. Diane accepted the
trial court’s appointment and proceeded to trial.
¶32 Diane’s lack of ability to understand English (and Spanish) and her
limited education does not inexorably lead to the conclusion that her wishes were
ignored. In fact, those limitations cut both ways as it appears the prior appellate
attorney was pushing Diane to forego the appointment of an experienced TPR
attorney to satisfy the appellate attorney’s preferences and that Diane was just
willing to go along with that preference regardless of her own views.
¶33 Moreover, it appears this issue on appeal is driven by the prior
appellate attorney and does not take into account that that attorney (and the new
trial attorney she proposed step in) failed to properly substitute into the action.
The trial court did not erroneously exercise its discretion when it denied Diane’s
request to switch court-appointed attorneys. It took into account the facts and
stated them clearly on the record (its past experience with the local TPR attorney
who was on the advocate counsel list versus the unknown attorney when there was
a complicated TPR proceeding that was definitely heading to trial). It most
definitely did not erroneously exercise its discretion when it denied outside
attorneys’ efforts to re-insert themselves into the TPR case. Its determinations
were not arbitrary, nor were they unreasonable given the facts of this case. The
decision not to switch appointments was the product of a rational mental process
carefully laid out on the record by the trial court. See Jones, 326 Wis. 2d 380,
¶23. There was no clear factual error or error of law.
¶34 Diane was given every opportunity to hire or retain new counsel.
Merely because that new counsel demanded appointment in lieu of simply
substituting in does not convert the trial court’s reasonable decisions into a
15
No. 2024AP2406
violation of Diane’s rights. Therefore, this court concludes that Diane was not
denied her right to counsel of her choice.
II. Ineffective Assistance of Counsel
¶35 It is well settled that criminal defendants are constitutionally
guaranteed the right to the assistance of competent counsel. Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). This fundamental right is also
applicable in Wisconsin to parents in termination of parental rights cases. State v.
Shirley E., 2006 WI 129, ¶¶30-31, 298 Wis. 2d 1, 724 N.W.2d 623; WIS. STAT.
§ 48.23(2). The “statutory provision for appointed counsel [to parents in a CHIPS
proceeding] includes the right to effective counsel.” A.S. v. State, 168 Wis. 2d
995, 1004-05, 485 N.W.2d 52 (1992). An attorney’s performance “need not be
perfect, indeed not even very good, to be constitutionally adequate.” State v.
Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).
¶36 “The benchmark for judging any claim of ineffective assistance of
counsel is whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” State v. Jenkins, 2014 WI 59, ¶34, 355 Wis. 2d 180, 848 N.W.2d 786.
The two-prong test to be used by the trial court was set forth in Strickland and
adopted in Wisconsin in State v. Mayo, 2007 WI 78, ¶¶33, 60, 301 Wis. 2d 642,
734 N.W.2d 115. “First, the [party] must demonstrate that counsel’s performance
was deficient.” Id., ¶33. “Second, the [party] must demonstrate that counsel’s
deficient performance was prejudicial to his or her defense.” Id. In essence,
“[a party] who alleges that counsel was ineffective by failing to take certain steps
must show with specificity what the actions, if taken, would have revealed and
how they would have altered the outcome of the proceeding.” State v. Prescott,
16
No. 2024AP2406
2012 WI App 136, ¶11, 345 Wis. 2d 313, 825 N.W.2d 515 (quoting State v.
Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388 (Ct. App. 1999), aff’d, 2000 WI
101, 237 Wis. 2d 197, 614 N.W.2d 477).
¶37 The party asserting an ineffective assistance of counsel claim bears
the burden of proof as to both of the Strickland analysis prongs. See State v.
Romero-Georgana, 2014 WI 83, ¶¶39-41, 360 Wis. 2d 522, 849 N.W.2d 668;
State v. Hudson, 2013 WI App 120, ¶11, 351 Wis. 2d 73, 839 N.W.2d 147. This
court “need not address both the performance and the prejudice elements, if the
[party] cannot make a sufficient showing as to one or the other element.” Mayo,
301 Wis. 2d 642, ¶61; State v. Tomlinson, 2001 WI App 212, ¶40, 247 Wis. 2d
682, 635 N.W.2d 201, aff’d, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.
¶38 When reviewing trial counsel’s performance, this court gives great
deference to counsel, and every effort must be made to avoid a determination of
ineffectiveness based upon hindsight. State v. Reynolds, 206 Wis. 2d 356, 363,
557 N.W.2d 821 (Ct. App. 1996). “Rather, the case is reviewed from counsel’s
perspective at the time of trial, and the burden is ... on the [appellant] to overcome
a strong presumption that counsel acted reasonably within professional norms.”
Id. (citation omitted). Constitutional ineffective assistance “is a mixed question of
fact and law.” State v. McDowell, 2004 WI 70, ¶31, 272 Wis. 2d 488, 681
N.W.2d 500. And, while this court “will not disturb the [trial] court’s findings of
fact unless they are clearly erroneous[,]” whether defense counsel’s performance
was constitutionally ineffective is a question of law to be reviewed de novo. Id.;
State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).
17
No. 2024AP2406
¶39 In this appeal, Diane’s claim for ineffective assistance of counsel is
based upon nine17 alleged errors by her court-appointed attorney that consisted of
failures to object to the County’s presentation of unnecessary and unfair evidence
that was, in Diane’s view, irrelevant, unfairly prejudicial, cumulative, or based on
hearsay. These can be broken down into six18 general categories: (1) prior CHIPS
orders; (2) Sarah’s injuries and trauma; (3) testimony on conditions of return;
(4) best interests; (5) undocumented or illegal alien status; and (6) Diane’s
17
The nine areas of deficient performance alleged by Diane include:
1. “[The trial court]’s prior determinations on ultimate issues
for the jury.”
2. “Excessively gruesome details of injuries to [Sarah’s]
genitals.”
3. “Implication that Diane played a role in Sarah’s injuries.”
4. “Implication that Diane subjected Sarah to multiple other
experiences of trauma.”
5. “Expert testimony opining Diane could never meet
conditions of return.”
6. “‘Best interests’ evidence in the grounds phase.”
7. “Diane and her family are undocumented individuals.”
8. “Misstatements of fact on Diane’s care of Sarah and
response in seeking medical care.”
9. “Failure to demand interpreter of the same dialect,
Kaqchikel, as Diane’s native language.”
18
In her Reply, Diane asserts that the County failed to address three of her arguments
and that this court may deem them conceded. Charolois Breeding Ranches, Ltd. v. FPC Secs.
Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979). This court concludes that each
of the nine areas of alleged deficient performance of counsel was addressed by the County or by
the trial court in its oral ruling and, thus, declines the opportunity to hold that any arguments have
been conceded.
18
No. 2024AP2406
indigenous language. In none of these areas was the court-appointed attorney
defective, nor was there any prejudice to Diane. Each is addressed below.
A. CHIPS orders.
¶40 Diane’s first argument is that the County had a strategy to imply that
the trial court had already decided the ultimate issue before the jury: the orders in
the CHIPS action were introduced with the use of the court’s name in an effort to
unfairly sway the jury. Because the court-appointed attorney did not object right
away, Diane contends she was unduly prejudiced and the jury heard repeatedly
that the court’s orders were definitive. The absence of objections, motions to
strike, or requests for curative instructions lead Diane to assert that there was both
deficient performance of services and prejudice.
¶41 First, this court notes that CHIPS orders are often admitted as
evidence in TPR grounds trials. Steven V. v. Kelley H., 2004 WI 47, ¶37, 271
Wis. 2d 1, 678 N.W.2d 856 (“Some statutory grounds for unfitness, however, are
expressly provable by official documentary evidence, such as court orders or
judgments of conviction.”) The question here resolves around the fact that the
trial court was the CHIPS court and the name of the judge presiding over the trial
was mentioned to the jury.
¶42 The trial court rejected the argument that the use of its name on
permanency planning orders was prejudicial. It also rejected the concept that the
mention of the CHIPS orders was an inappropriate “tactic” by the County. To the
contrary, the court implicitly held that Diane was missing the point by focusing on
the name on the order and ignoring that there were orders that lead to the TPR
petition:
19
No. 2024AP2406
Well, first of all, the jury is deciding questions of fact, and
the concept of permanency, the evidence presented is
relevant and proper because the concept of permanency
was explained.
….
… the jurors are instructed that they are the sole judges
of the facts of this case and they are further instructed that
the issue of termination of parental rights is not within their
purview and that that rests solely upon the Judge.
So to say [that the court-appointed attorney] failed to
ask the Court to strike testimony or for a curative
instruction or move for a mistrial because of this testimony,
there’s no basis for a mistrial. There was no curative
instruction necessary because there was no issue to cure. It
was relevant evidence. Jury instructions explain things
properly and again I find that there’s no deficient
performance by [the attorney] as it relates to that issue.
¶43 This ruling is not clearly erroneous. Diane failed to persuade the
trial court that its name on the orders was so over-the-top that the jury was unable
to make its own fact-findings. The jury was going to hear (and possibly see) the
CHIPS orders regardless of who signed the orders. This court does not accept the
contention that knowledge that the trial judge was the CHIPS judge placed any
greater weight on the intrinsic, underlying fact that a CHIPS order was issued.
B. Sarah’s injuries and trauma.
¶44 During a grounds phase jury trial, the jury is typically told about the
reason that the child was initially removed from the parent’s home. It sets the
stage for why the jury is there. “It is readily apparent that a history of parental
conduct may be relevant to predicting a parent’s chances of complying with
conditions in the future, despite failing to do so to date.” La Crosse Cnty. Dep’t
of Hum. Servs. v. Tara P., 2002 WI App 84, ¶13, 252 Wis. 2d 179, 643 N.W.2d
194. Here, the underlying facts were—as all parties agree—gruesome. Sarah’s
20
No. 2024AP2406
injuries were tragic and graphically appalling, in addition to being life-threatening.
There are no allegations that Diane caused these injuries. The issue that upset the
other adult in the home, the employee at the market, the County, and apparently
the jury, was Diane’s response to the injuries.
¶45 In Tara P., we stated:
In determining whether “there is a substantial likelihood”
that a parent will not meet conditions for the return of his or
her children, a fact finder must necessarily consider the
parent’s relevant character traits and patterns of behavior,
and the likelihood that any problematic traits or
propensities have been or can be modified in order to
assure the safety of the children.
Tara P., 252 Wis. 2d 179, ¶18. In addition, “events predating dispositional orders
may also be relevant to another issue at termination proceedings: whether a county
department of social services made ‘reasonable’ efforts to provide services ordered
by a court.” Id., ¶14 n.4. See also WIS JI—CHILDREN 324 (jury can consider “the
characteristics of the parent or child ... the level of cooperation of the parent ... and
other relevant circumstances of the case” when assessing whether the County
made reasonable efforts to provide court-ordered services to facilitate the
conditions of return). Thus, the trial court’s holding that this evidence—albeit
gruesome—was relevant and admissible is reasonable, rationally related to the
case, and not clearly erroneous.
¶46 With respect to the court-appointed attorney’s failure to object to
extensive evidence as to the grievous nature of Sarah’s injuries, which resulted in
the CHIPS petition and the trauma she experienced afterwards, the trial court
found the testimony was relevant and admissible pursuant to Tara P. Because it
described the circumstance that led to Sarah’s removal from Diane’s care and
21
No. 2024AP2406
custody as well as explained the conditions Diane had to meet for Sarah’s return,
the court allowed it into evidence. The court held
It allows for a context and helps the jury understand[]
the reasons for and the basis for what the parent must do to
complete conditions of return and why. It’s evidence that’s
highly probative[.]
….
… It’s relevant to help the jury understand what services
DCFS is required to provide.
….
… Are they bad facts for the mother? Well, yeah.
They’re the reality though. ... As much as I’m sure a
defense attorney or a parent in a proceeding such as this
would like facts to be anemic or watered down or excluded
altogether, we know trials are search - - searches for the
truth. It’s not the Court’s role to manipulate reality.
¶47 Additionally, the trial court found that the court-appointed attorney
“did make objections when he thought the evidence was too graphic or crossed the
line and he actually won those.” There was also a continuing objection made by
the court-appointed attorney to some of this testimony. In addition, the
court-appointed attorney explained that it was his strategy and practice not to
object to opening statements and closing arguments because they are not evidence
and jury instructions so advise the jury.
¶48 Diane also asserts that the County inappropriately implied that Diane
played a role in Sarah’s injuries or that she subjected Sarah to multiple other
experiences of trauma. This, Diane contends, was presented through the testimony
of multiple witnesses. These witnesses, however, testified to their personal
observations of how Sarah interacted with Diane after she was removed from the
home. This testimony was relevant and, while it was prejudicial, that is not the
22
No. 2024AP2406
issue. The testimony related to how Diane was attempting to meet her conditions
of return. That does not constitute a reason to exclude the evidence, much less to
make unsuccessful objections. Even Diane’s complaints over the child therapist’s
opinions19 fall flat. The trial court held that this testimony was “highly relevant”
to proving the grounds that Diane was an unfit parent and was not subject to
objection:
[The child therapist], testified about [Sarah’s] trauma
history and the seriousness of that history. The causes of
[Sarah] being detained. How the trauma with the child was
significant and is relevant to the mother’s understanding of
her daughter’s needs. … The daughter’s trauma. It’s not
testimony about comparing [Diane] to the foster family and
at no time did any party argue that.
¶49 It was for these reasons that the trial court did not find deficient
performance with respect to the testimony about Sarah’s injuries and Diane’s
response. This court does not agree that this was an attempt to “retry the CHIPS
case.” The findings in the CHIPS case were the foundations upon which the TPR
case was built. The impact of the CHIPS orders was not overly inflammatory;20 it
was relevant and admissible under Tara P. It was rationally related to the case.
This court, affording due deference to the court-appointed attorney and following
the dictates set forth in Tara P., concludes that that decision is not clearly
erroneous.
19
This court wonders that either party is surprised a heavily abused child like Sarah
should meet the “diagnostic criteria for complex post-traumatic stress disorder” which “is
diagnosed when a person or child has experienced multiple repeated experiences of acute distress
... without the resolution of feeling safe again.”
20
Sadly, Diane’s counsel appears to believe that the facts underlying Sarah’s CHIPS
case are the worst ones presented in juvenile court. That is simply not true. Parents’ and/or
guardians’ lack of humanity to defenseless children comes in many horrible forms.
23
No. 2024AP2406
C. Conditions of return testimony.
¶50 A part of the issues with which the jury was charged to resolve was
what conditions of return were set and whether Diane had met, or come close to
meeting, those conditions. Clearly, in order to establish the second ground of
parental unfitness—the continuing need for protection or services under WIS.
STAT. § 48.415(2)—the County had to establish that Diane did not meet
court-ordered conditions of return. See Sheboygan Cnty. Dep’t of Health &
Hum. Servs. v. Julie A.B., 2002 WI 95, ¶13, 255 Wis. 2d 170, 648 N.W.2d 402.
¶51 Diane contends that the failure to object to the County’s psychology
expert’s testimony that Diane could never meet the conditions for return was yet
another example of ineffective assistance of counsel. She also contends that this
argument was not addressed by the County and could be deemed conceded by this
court. First, experts are allowed to provide this type of opinion testimony. Brown
County v. Shannon R., 2005 WI 160, ¶43, 286 Wis. 2d 278, 706 N.W.2d 269
(a properly qualified expert may give an opinion as to whether a parent is “able to
meet the conditions for return within” a given time period).
¶52 This court has already addressed and dismissed that concession
argument in general, but in this case, there is absolutely no dispute that the County
addressed the psychology expert’s testimony in its brief. Diane’s main argument
is that the expert’s “testimony lacked current relevance and was based on stale
data, rendering it unreliable as an assessment of Diane’s present ability to parent.”
That is not a basis for objection; it is a basis upon which to conduct “[v]igorous
cross-examination.” See Seifert v. Balink, 2017 WI 2, ¶132, 372 Wis. 2d 525, 888
N.W.2d 816 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596
(1993)).
24
No. 2024AP2406
¶53 The trial court swiftly dealt with this argument. It held that
[The psychology expert’s] testimony was relevant as to the
service she provided which was ordered by the Court at the
CHIPS disposition hearing and it was included in the
CHIPS disposition order.
It relates to the continuing need of protection or services
ground alleged. It dealt with the service that was provided
and her findings and analysis actually played into [the
court-appointed attorney’s] strategy again to make [Diane]
sympathetic to the jury so there would be no reason for him
to object. So I don’t find any deficient performance by [the
court-appointed attorney] as it relates to that issue.
¶54 Again, this decision by the trial court was not clearly erroneous, was
the product of a rational mental process, and will not be overturned.
D. Best interests.
¶55 A termination of parental rights case “involve[s] a two-step
process.” Tammy W-G. v. Jacob T., 2011 WI 30, ¶18, 333 Wis. 2d 273, 797
N.W.2d 854. The first step is the fact-finding hearing on grounds for termination.
Id. “During this step, the parent’s rights are paramount.” Julie A.B., 255 Wis. 2d
170, ¶24 (quoting Evelyn C.R. v. Tykila, 2001 WI 110, ¶22, 246 Wis. 2d 1, 629
N.W.2d 768 (citations omitted)). “During this step, the burden is on the
government, and the parent enjoys a full complement of procedural rights.” Julie
A.B., 255 Wis. 2d 170, ¶24.
¶56 While “‘[t]he best interests of the child is the polestar of all
determinations under [WIS. STAT.] ch. 48, the Children’s Code[,]’” State v. B.W.,
2024 WI 28, ¶75, 412 Wis. 2d 364, 8 N.W.3d 22 (quoting State ex rel. Darryl
T.H. v. Margaret H., 2000 WI 42, ¶33, 234 Wis. 2d 606, 610 N.W.2d 475), “[t]he
best interests of the child shall be the prevailing factor considered by the court in
determining the disposition....” Oneida Cnty. Dep’t of Soc. Servs. v. Therese S.,
25
No. 2024AP2406
2008 WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122 (alteration in original;
quoting WIS. STAT. § 48.426(2)). Our state supreme court “has thus concluded
that the best interests standard is confined to the dispositional phase, and that at
the fact-finding stage, the best interests of the child are not to be considered.”
Door Cnty. Dep’t of Health & Fam. Servs. v. Scott S., 230 Wis. 2d 460, 468, 602
N.W.2d 167 (Ct. App. 1999); Waukesha Cnty. Dep’t of Soc. Servs. v. C.E.W.,
124 Wis. 2d 47, 60-61, 368 N.W.2d 47 (1985).
¶57 In its oral ruling, the trial court quickly shut down the “best
interests” argument and clearly found that “[a]t no time was there comparisons
made between [Diane] and the foster family so there’s nothing to object to on that
front.” Moreover, the court noted that at no time was the phrase “best interests”
uttered.
¶58 With the lack of the “best interests” phrase, Diane focuses upon a
claim that the witnesses spoke about permanence for Sarah. But, that is what the
grounds phase trial is about. In addition, mentions of permanency and
permanency planning were testified to as an explanation of the CHIPS procedures
and how the case came to be before the jury. Jurors were instructed that they
would not be the ones to decide whether Diane’s parental rights will be
terminated, their responsibility “is to determine whether the grounds for
termination alleged in the petition have been proved.” WIS JI—CHILDREN 300.
¶59 Diane’s arguments on this point are without merit. Jurors
are presumed to follow instructions provided to them by the trial court. Weborg v.
Jenny, 2012 WI 67, ¶69, 341 Wis. 2d 668, 816 N.W.2d 191; State v. Grande, 169
Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). As noted above, neither
opening statements nor closing arguments are evidence, and jurors are cautioned
26
No. 2024AP2406
to remember that when they deliberate. See Mayo, 301 Wis. 2d 642, ¶44. The
court properly advised the jurors, telling them twice that closings and other
statements by the attorneys are not evidence.
¶60 Finally, the court-appointed attorney testified it was his strategic
plan not to raise too many objections. This avoided emphasizing bad facts and
assisted in his efforts to paint Diane as a sympathetic mother who walked to
America to help give her child a better life.
¶61 The trial court did not erroneously exercise its discretion in declining
to give this argument any weight. Neither does this court.
E. Undocumented/illegal status.
¶62 The trial court declared that, because the “words undocumented or
illegal alien were never used[,]” the court-appointed attorney did not provide
ineffective assistance of counsel. To the contrary, that attorney testified at the
Machner hearing that he used Diane’s efforts to come to America and get a visa
as part of his overall strategy to garner sympathy for Diane.
¶63 That strategy, whether it was the best idea or not, was described by
the attorney as follows:
I was always trying to make [Diane] look like someone that
would walk a thousand miles for the best care of her
daughter.
….
... I was going with the sympathy. The idea that [Diane]
was doing the absolute best she could according to her
limitations, her poverty, her desire as I put it [to] walk a
thousand miles for her child for the best of the child, … I’m
very liberal. I defend. I - - I believe in these people.
27
No. 2024AP2406
I believe that this country has always benefited from
every influx of people we’ve ever got.
¶64 The trial court found this “sympathy” strategy was planned and not a
basis upon which to find ineffective assistance of counsel. Rather
His theory of defense was not to collaterally attack the
CHIPS case and even saying that, the words undocumented
and or illegal alien, were still never used so the background
of [Diane] fed into [the court-appointed attorney’s] strategy
and is solidly relevant. Not marginally relevant, but solidly
relevant in … the determination of whether DCFS provided
appropriate services.
To determine despite other cultural acceptances whether
[Diane] gained the proper knowledge to secure a finding
that she completed … services. That she absorbed the
knowledge to be able to safely parent. That she
demonstrated an understanding of principles taught by
service providers so as to allow her to safely parent her
child. CHIPS cases are not a one size fits all. It’s
important for a jury to understand individual dynamics and
nuances in a particular case.
¶65 That decision—based on the clear strategy of an experienced
attorney—is not clearly erroneous. It is reasonable and worthy of deference.
F. Kaqchikel language.
¶66 Finally, the trial court, in its oral ruling addressing the concern that
Diane could not understand the trial testimony or witnesses (or her
court-appointed attorney), noted that “not once did an attorney raise a competency
issue [regarding Diane]. Not once in six years.” Moreover, not once over those
six years that Diane and Sarah’s cases progressed, was the court ever told that
Diane did not understand her K’iché interpreter. Most important, there were no
allegations that her court-appointed attorney was ever told that Diane lacked
understanding of either testimony or her interpreter. As to the court’s
approximately 20 admonitions to have attorneys and/or witnesses slow down, the
28
No. 2024AP2406
court explained it does that “all the time. Nearly every day. Most hearings every
day.” And, the admonitions are also in cases not involving non-English speakers;
they are to assist the court reporter at times. Accordingly, the court (noting new
post-termination counsel did not regularly practice in the county) found there was
no deficient performance by the court-appointed attorney related to this argument.
¶67 A second part of Diane’s new argument is that she really didn’t
speak K’iché, but rather spoke Kaqchikel. This argument was raised after six
years of the assistance of a K’iché to English interpreter21 who assisted Diane
starting with the CHIPS proceeding. This interpreter also assisted Diane in her
communications with all of her SPD and court-appointed attorneys outside court
proceedings as well.
¶68 Now, after all of these proceedings—including a prior successful
appeal—Diane raises the new indigenous language issue that first arose when a
police captain testified, on day two of the grounds jury trial, that he believed
Diane’s indigenous language was similar to that spoken by some of his
Guatemalan relatives. Even after that testimony, Diane did not ask the trial court
to get her a different interpreter or indicate in any manner whatsoever that she
spoke Kaqchikel and could not understand K’iché. Diane did not even testify at
the Machner hearing that she had any such difficulties. The Record is, thus,
sparse, and the trial court cannot be faulted for finding it difficult to believe.
¶69 The trial court’s rationale underlying its decision is well-reasoned,
on point, and persuasive. It held
21
There are no interpreter certifications for the K’iché language.
29
No. 2024AP2406
There’s no doubt that [Diane] is not highly educated.
There’s no doubt she is unsophisticated. I’ve heard no
evidence that [the court-appointed attorney] was told by
[the interpreter] or anyone else and more importantly by
[Diane] herself that [she] was not understanding something.
[Diane] did not testify to this issue during our two days of
evidentiary [Machner] hearings back in March.
At no time in six years did I ever hear that [Diane] was
not understanding her K’iché interpreter. How would [the
court-appointed attorney] be ineffective for not raising an
issue when he was not apprised that there was an issue to
begin with? He’s - - he’s not. He’s not ineffective. Again,
I didn’t hear that [Diane] told [her court-appointed
attorney] she wasn’t understanding.
You can’t come in and make an argument that my
attorney did not argue something that I never told him
about. That defies logic and that is not deficient
performance[.]
¶70 The court-appointed attorney even stopped testimony during the
grounds phase jury trial to inquire as to whether the interpreter was able to
translate some technical medical terms. After the K’iché interpreter confirmed she
was able to interpret the terms (while not necessarily fully explaining what they
meant to Diane), the trial court asked for interruptions if there was ever “any issue
whatsoever” “with either [the interpreter] understanding with her having the
ability to properly interpret or for [Diane] not to have the ability to understand
what [the interpreter] is interpreting for her[.]” Therefore, both Diane and her
interpreter were on notice that they should tell the court if there were ever any
communication/interpretation issues. Neither did so during the jury trial, the
disposition hearing, or at the post-termination hearings.
¶71 To now raise this issue without corroborating testimony by Diane or
the interpreter or both—at any hearing below—is insufficient to meet Diane’s
burden of proof. The trial court’s decision in this final area was not clearly
erroneous.
30
No. 2024AP2406
G. Prejudice.
¶72 Having concluded that the court-appointed attorney did not provide
deficient services to Diane, this court need not even address possible prejudice, the
second prong of the Strickland analysis. State v. Savage, 2020 WI 93, ¶25, 395
Wis. 2d 1, 951 N.W.2d 838 (“If the [party] fails to satisfy either prong, we need
not consider the other.”) (quoting State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93). It is addressed here nonetheless.
¶73 The trial court held that Diane “has not established a reasonable
probability that a jury would [not] have found grounds for termination of her
parental rights had [the court-appointed attorney done] all the things that [Diane’s
current attorney] said he should have done in hindsight[.]” The court added, “a
party’s not entitled to a perfect attorney[,]” and an “[a]ttorney may not be perfect
to be constitutionally adequate.”
¶74 Here, Diane’s court-appointed attorney was better than just
adequate. He reviewed extensive files and discovery. He prepared for and
defended during a four-day jury trial, a contested dispositional hearing, and more.
Diane has not shown that his performance was so deficient that it fell below the
standard of professional conduct and has prejudiced Diane. See Strickland, 466
U.S. at 687. We are all being asked to, with the benefits of the goggles of
hindsight, determine that a different strategy would inexorably lead to a
different—better—outcome for Diane at either the grounds phase jury trial or the
dispositional hearing. There is no basis for such a tightrope walk, and this court
declines to do so.
* * * *
31
No. 2024AP2406
¶75 In sum, the trial court found that the ineffective assistance of counsel
argument rested almost entirely on a difference of potential trial strategies and that
Diane is asking the court to “eliminate the distorting effects of hindsight.” That is
something it refused to do. It is axiomatic that a party “does not show the element
of deficient performance ‘simply by demonstrating that [her] counsel was
imperfect or less than ideal.’” State v. Burton, 2013 WI 61, ¶48, 349 Wis. 2d 1,
832 N.W.2d 611 (quoting State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358,
805 N.W.2d 334).
¶76 For these reasons, this court concludes that Diane has failed to meet
either of the Strickland prongs. She has failed to show that her court-appointed
attorney’s performance was deficient or that it “fell below an objective standard of
reasonableness” considering all of the circumstances. Romero-Georgana, 360
Wis. 2d 522, ¶40 (quoting Strickland, 466 U.S. at 688). Neither has Diane shown
that she was prejudiced by the court-appointed attorney’s deficient performance
and that absent those alleged errors, there is a “reasonable probability” that the
results at the grounds phase jury trial (and/or the contested dispositional hearing)
would have been different. Strickland, 466 U.S. at 691-92, 694.
CONCLUSION
¶77 Diane’s right to the counsel of her choice—to the extent that it was
implicated in the context of court-appointed attorneys—was not violated, and the
trial court did not erroneously exercise its discretion when it refused to remove a
court-appointed attorney and appoint the attorney suggested by Diane’s prior
appellate counsel. See Sutton, 127 F.4th at 1070; Gonzalez-Lopez, 548 U.S. at
151; Jones, 326 Wis. 2d 380, ¶41. Diane did not secure separate representation
despite the assurance that she could hire any attorney she selected. The court’s
32
No. 2024AP2406
decision was the product of a rational process. Id., ¶23. For those reasons, Diane
has failed to meet her burden of proof with respect to the first issue on appeal.
¶78 “As Strickland reminds us, there is a ‘wide range of professionally
competent assistance,’ and the bar is not very high.” State v. Westmoreland, 2008
WI App 15, ¶21, 307 Wis. 2d 429, 744 N.W.2d 919 (2007) (citation omitted); see
also Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence
Darrow to survive an ineffectiveness contention). As the trial court noted, no one
is entitled to a “perfect” attorney. Based upon the facts in this matter, this court
concludes that Diane has failed to establish that her court-appointed attorney
provided deficient, ineffective assistance of counsel or that Diane suffered any
prejudice. The trial court’s conclusions are affirmed.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
33
Case Information
- Court
- Wis. Ct. App.
- Decision Date
- October 8, 2025
- Status
- Precedential