Please ensure Javascript is enabled for purposes of website accessibility

Family – TPR

By: WISCONSIN LAW JOURNAL STAFF//September 25, 2013//

Family – TPR

By: WISCONSIN LAW JOURNAL STAFF//September 25, 2013//

Listen to this article

Wisconsin Court of Appeals

Civil

Family – TPR — ineffective assistance — jury instructions

Callen D. M. appeals the termination of her parental rights to Carson E. B. Callen claims that her trial counsel was ineffective in failing to request a jury instruction on Callen’s alleged impossibility to perform the conditions required for Carson’s return to her care, because Callen was incarcerated during the final months that the petition was pending. She argues that the circuit court erred in denying, without an evidentiary hearing, her postdisposition motion for a new trial based on ineffective assistance of trial counsel.

Though it is framed as a claim of ineffective assistance of counsel, the real issue in Callen’s appeal is whether the jury should have received the special instruction that an incarcerated parent’s rights may not be terminated based solely upon conditions that were impossible to perform while incarcerated.

Like the circuit court, we conclude that no such instruction was proper here because Callen had approximately two and one-half years before her imprisonment to comply with Ozaukee County’s dispositional order before her incarceration and because incarceration was by no means the sole reason for termination of Callen’s parental rights. Instead, it was just the proverbial straw that broke the camel’s back.

Because we agree that Callen’s inability to fulfill the conditions of return was due to her own failures prior to incarceration, we affirm the circuit court. This opinion will not be published.

2013AP1157 In re the termination of parental rights to Carson E.B. v. Callen D.M.

Dist II, Ozaukee County, Williams, J., Brown, C.J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Gorden, Rhonda K., Port Washington

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests