Ineffective Assistance of Counsel

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. R.D.J.

Case No.: 2017AP547

Officials: BRENNAN, J.

Focus: Ineffective Assistance of Counsel

R.D.J. appeals the order terminating his parental rights to his daughter, T.S.J., born May 22, 2010, and the order denying his postdisposition motion. He raises four arguments on appeal.

R.D.J.’s first two arguments relate to the testimony of the State’s expert, Dr. Michelle Iyamah, regarding the Parenting Capacity Assessment (PCA) report she prepared that concluded that R.D.J.’s prognosis for improving his parenting capacity was poor. He argues that counsel rendered ineffective assistance because he: (1) made no attempt to exclude the report as unscientific under Daubert or rebut it with an expert witness; and (2) because he raised no WIS. STAT. § 904.03 objection that the report’s probative value was outweighed by the risk of unfair prejudice. R.D.J.’s third argument is that terminating his parental rights based on a finding of failure to assume parental responsibility violated his substantive due process guarantees because T.S.J.’s removal from the parental home made it impossible for R.D.J. to show that he had a substantial parental relationship, which the statute defines as accepting and exercising “significant responsibility for [her] daily supervision, education, protection and care[.]” He argues that trial counsel’s failure to raise an as-applied constitutional challenge on that basis constituted ineffective assistance. R.D.J.’s fourth argument is that a CHIPS order itself “creates a substantial court-supervised parental relationship[,]” and that therefore he cannot be found to have failed to assume his parental responsibilities. Relying on two words from the failure to assume statute, he reasons that a CHIPS order “connects a parent to his or her child by court order and by court supervision,” and what it creates is “both substantial and a relationship.” Therefore, he argues that the CHIPS order in place at the time of the termination of parental rights (TPR) proceedings created a substantial relationship between him and T.S.J., and accordingly the failure to assume grounds cannot be established.

For the reasons that follow, we reject R.D.J.’s arguments and affirm the trial court orders terminating his parental rights and denying his postdisposition motion.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.