L.E.H. v. R.E.M. (In re I.A.H.), 2022AP713

CourtCourt of Appeals of Wisconsin
Writing for the CourtDUGAN, J.
PartiesIn re the termination of parental rights to I.A.H., a person under the age of 18: v. R.E.M., Respondent-Appellant. L.E.H., Petitioner-Respondent, In re the termination of parental rights to N.H.H., a person under the age of 18: L.E.H., Petitioner-Respondent, v. R.E.M., Respondent-Appellant. In re the termination of parental rights to M.F.H., a person under the age of 18: L.E.H., Petitioner-Respondent, v. R.E.M., Respondent-Appellant.
Docket Number2022AP713,2022AP714,2022AP715
Decision Date22 November 2022

In re the termination of parental rights to I.A.H., a person under the age of 18:

L.E.H., Petitioner-Respondent,
v.

R.E.M., Respondent-Appellant.

In re the termination of parental rights to N.H.H., a person under the age of 18:

L.E.H., Petitioner-Respondent,
v.

R.E.M., Respondent-Appellant.

In re the termination of parental rights to M.F.H., a person under the age of 18:

L.E.H., Petitioner-Respondent,
v.

R.E.M., Respondent-Appellant.

Nos. 2022AP713, 2022AP714, 2022AP715

Court of Appeals of Wisconsin

November 22, 2022


This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

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APPEALS from orders of the circuit court for Milwaukee County, Cir. Ct. Nos. 2019TP248 2019TP249 2019TP250: ELLEN R. BROSTROM, Judge. Affirmed.

DUGAN, J. [1]

¶1 Rebecca appeals from orders of the circuit court terminating her parental rights to her three children.[2] On appeal, Rebecca argues that the circuit court improperly granted summary judgment on the grounds alleged in the petition to terminate her parental rights, and she argues that the circuit court created the appearance of bias by conducting the adoption hearing at the end of the disposition hearing. For the reasons set forth below, this court affirms.

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BACKGROUND

¶2 Luke and Rebecca have three children together. Their relationship ended, and pursuant to a family court order entered in 2015, Luke and Rebecca shared custody and physical placement of the children.

¶3 Subsequently, the children's school reported that the children came to school wearing the same clothes for several days in a row, were unfed, and were excessively absent with no excuse provided on days that Rebecca had placement of the children. The school filed reports with Child Protective Services, and the school also documented that Rebecca appeared intoxicated at one of the children's school pageants. Further events uncovered that Rebecca had no power at her home, did not always have food available for the children, would leave the children unattended for long periods of time, was often unresponsive to the children when she was home,[3] and as the oldest child later told Luke, they would do their homework by candlelight in the "spider room" and the oldest child would try to feed her younger siblings by heating soup in the microwave at the beauty shop located on a lower level of the apartment building.

¶4 Consequently, Luke sought to have the family court order revised, and in November 2017, the family court entered a revised order that granted Luke sole custody and primary physical placement. The family court also ordered that Rebecca's placement and visitation were "held open," pending treatment for drug and alcohol addiction. In the order, the court found that Rebecca "had a documented history of substance abuse issues and continues to show signs of

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ongoing substance abuse," Rebecca "has been inconsistent in attempts to see" the children, and "she seems intoxicated" when she does appear for visits. The order also noted that Rebecca failed to appear at the hearing. Luke has retained sole custody and primary physical placement of the children since November 2017.

¶5 Luke filed a petition to terminate Rebecca's rights on December 18, 2019.[4] In the petition, Luke alleged grounds of abandonment, continuing denial of periods of physical placement or visitation, and failure to assume parental responsibility. In his supporting affidavit, Luke averred that Rebecca had not seen the children since approximately April 2017, and that since that time, Rebecca has collected a number of criminal charges, including operating while intoxicated as a fourth offense, possession of cocaine, and operating a vehicle without the owner's consent.

¶6 Luke moved for summary judgment on the grounds that Rebecca abandoned the children by failing to visit or communicate from late 2017 through 2018. He argued that Rebecca made only one attempt at communication with the children late in 2017, through Luke's wife, in which Rebecca requested contact information for the children and that Rebecca had no visitation or communication with the children during 2018.[5] In fact, Luke again contended that Rebecca had not seen the children since approximately April 2017. He further averred that neither he, nor his wife, nor the children had been in contact with Rebecca, and he

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argued that the lack of contact was undisputed because Rebecca also testified during her deposition that she only made the one attempt in late 2017 to contact Luke's wife.

¶7 Luke argued that it was further undisputed that Rebecca abused alcohol, used heroin and cocaine, and accumulated several criminal charges during 2018, when she was absent from the children's lives. He further argued that, based on Rebecca's deposition testimony, Rebecca's "good cause" for failing to maintain any contact was her "substance abuse disorder." He argued that any argument to that effect was undermined because Rebecca continued to maintain contact with-in fact, she was the primary caregiver for-a son she had after the end of her relationship with Luke.[6]

¶8 In response, Rebecca argued that "incarceration, addiction, and indigency" and Luke's "contentious disposition" prevented her from maintaining contact with the children and provided a "good cause" defense to the alleged abandonment in late 2017 and throughout 2018. She also submitted an affidavit in which she averred that she made multiple attempts to contact Luke and his wife throughout 2018.

¶9 The circuit court rejected Rebecca's arguments, and it granted Luke's motion for summary judgment on the grounds that Rebecca abandoned her

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children.[7] In granting Luke's motion, the circuit court found that Rebecca submitted a "sham affidavit"[8] in support of her motion for summary judgment in which she indicated-contrary to her deposition testimony-that she made multiple attempts to contact Luke and his wife throughout 2018.

¶10 The circuit court further rejected Rebecca's arguments as to good cause stating:

The other thing I would note is while the court order in the family law case requires her to be in treatment before she can move for placement, it doesn't prohibit her from having contact. There is no no-contact order anywhere in these facts, and specifically in that order is a warning that no parent can intentionally conceal the child from the other…. So even though maybe she was not in a position to have … placement, she had a right to have contact with her children.… [I]nstead, she was absent from their lives for more than a year, which is way longer than three months and quite a bit longer than six months.

The circuit court also rejected Rebecca's good cause argument that she was too "debilitated" by her drug addiction saying: "[S]he was living with another man with another child and fighting in another court about her rights to that child, and, you know, item 11 in her affidavit says because of this addiction, I had difficulty maintaining a consistent presence in my children's lives."

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¶11 The case then proceeded to the disposition hearing at which Luke, his wife, Rebecca, and the therapists for the children testified. After considering their testimony, the circuit court terminated Rebecca's parental rights. The circuit court noted that Rebecca had recently begun treatment for her addictions and was making progress. However, the circuit court stated that the events the children endured when Rebecca had placement were clearly traumatic for them and left them in an unsafe and unstable living situation, but by comparison their current situation with Luke and his wife put the children "in a really good place." Thus, after reviewing the factors found in Wis.Stat. § 48.426(3), the circuit court terminated Rebecca's parental rights.

¶12 Rebecca filed a postdisposition motion alleging that she received ineffective assistance of counsel in responding to Luke's motion for summary judgment and that the circuit court was objectively bias. The circuit court held a hearing at which trial counsel testified.[9] The circuit court denied Rebecca's motion, and Rebecca now appeals.

DISCUSSION

¶13 On appeal, Rebecca presents two main arguments. Rebecca first argues that the circuit court improperly granted Luke's motion for summary judgment. She argues (1) that her trial counsel was ineffective for failing to present evidence of Luke's "history of domestic violence" and (2) that her trial counsel was ineffective for failing to present evidence that Luke's wife refused to facilitate contact between Rebecca and the children. Second, Rebecca argues that

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the circuit court left time at the end of the disposition hearing to process the adoption, thereby creating the appearance that the circuit court had predetermined her case. This court disagrees and addresses each argument in detail below.

I. Claim of Ineffective Assistance of Counsel at Summary Judgment

¶14 Rebecca first argues that her trial counsel was ineffective for failing to raise two specific "good cause" defenses in response to Luke's motion for summary judgment. To prove ineffective assistance of counsel in a termination of parental rights proceeding, a parent must show two elements: (1) counsel's performance was deficient; and (2) the deficient performance resulted in prejudice to the defense. A.S. v. State, 168 Wis.2d 995, 1005, 485 N.W.2d 52 (1992) (citations omitted) (adopting the analysis from Strickland v. Washington, 466 U.S. 668 (1984), for TPR proceedings). We...

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