State v. N.M.A.-S. (In re A.A.S.)
| Decision Date | 17 December 2019 |
| Docket Number | 2018AP2309,Appeal Nos. 2018AP2308 |
| Citation | 390 Wis.2d 426,939 N.W.2d 430 (Table),2020 WI App 6 |
| Parties | IN RE the termination of parental rights to A.A.S., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. N.M.A.-S., Respondent-Appellant. In re the termination of parental rights to A.J.S., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. N.M.A.-S., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 N.M.A.-S. appeals the orders of the trial court terminating her parental rights of A.A.S. and A.J.S. N.M.A.-S. asserts that she received ineffective assistance of counsel because her trial counsel failed to request a strike for cause or use a peremptory strike for a juror who answered a question affirmatively during voir dire relating to whether someone struggling with addiction is unfit to be a parent.
¶2 A postjudgment hearing regarding this claim was held in September 2019. The postjudgment court2 determined that N.M.A.-S. had not demonstrated that she was prejudiced by this alleged deficiency of trial counsel, and denied her motion for a new trial. We agree and affirm the orders terminating N.M.A.-S.’s parental rights.
¶3 N.M.A.-S. is the biological mother of A.A.S., born January 17, 2013, and A.J.S., born December 4, 2013. The Division of Milwaukee Child Protective Services (DMCPS)3 became involved with the family after an incident in August 2014 where A.A.S. was found to have opiates in her system. The police had been called to a Super 8 hotel on South Howell Avenue in Milwaukee by a concerned citizen who heard N.M.A.-S. and the children’s father, A.S., "yelling[ ] and screaming at each other." The caller said the parents appeared to be under the influence of something; they did not smell of alcohol, but were "high as a kite"—the father was pacing and appeared "jittery and agitated," and the mother kept "nodding off."
¶4 When police arrived, in addition to the parents being under the influence, they found that A.A.S. had an "altered mental status": her head was "drooping" and "she kept falling over." She was transported to a hospital where it was discovered that she had ingested an opiate, later determined to be morphine
. Both parents denied having any knowledge of how A.A.S. had gotten the opiates, although N.M.A.-S. later told a case worker that she took morphine—as well as Oxycodone and Percocet—for fibromyalgia.
¶5 DMCPS took custody of both A.A.S. and A.J.S. that night, based on two "present dangers": one of the children had unexplained injuries, and the parent—N.M.A.-S.—was currently, and consistently, under the influence of an intoxicant.4 A.A.S. and A.J.S. were subsequently found to be children in need of protection or services, and a dispositional order placing the children outside of their parents’ home was entered in December 2014. That order required that N.M.A.-S. maintain sobriety; manage her mental health issues; communicate with the case manager assigned through DMCPS; and demonstrate that she could parent the children, protect them, and provide for their safety. Additionally, the order required that N.M.A.-S. have regular visitation with the children.
¶6 N.M.A.-S. failed to meet these requirements. She did not visit the children regularly, sometimes going for weeks or months at a time without contacting them. In fact, she had no contact with the children—including via telephone or via written or electronic contact—for a three-month period between November 1, 2016 to February 1, 2017, which constitutes abandonment pursuant to WIS. STAT. § 48.415(1)(a)2.
¶7 Furthermore, N.M.A.-S. did not demonstrate that she could maintain sobriety: she missed several scheduled appointments for AODA assessments, and was discharged from the program for lack of attendance and participation. She attended supervised visits under the influence of Xanax and morphine
. She also refused to provide urine samples or take any test to determine whether she was under the influence of drugs.
¶8 Additionally, N.M.A.-S. did not actively engage in the care of the children, and refused to sign a consent form to allow for A.A.S. to participate in speech therapy as recommended by her pediatrician. She also refused to allow the case manager to come to her home and complete a safety assessment.
¶9 As a result, petitions for the Termination of Parental Rights (TPR) of N.M.A.-S. with regard to A.A.S. and A.J.S. were filed in October 2017. In the petitions, the State alleged three grounds for termination: (1) N.M.A.-S.’s abandonment of the children, pursuant to WIS. STAT. § 48.415(1)(a)2. ; (2) the children’s continuing need of protection or services, pursuant to § 48.415(2) ; and (3) N.M.A.-S.’s failure to assume parental responsibility, pursuant to § 48.415(6).
¶10 A jury trial on these matters commenced on June 11, 2018. During the voir dire of potential jurors, N.M.A.-S.’s trial counsel asked, "Is there anyone that believes that someone who is struggling with an addiction currently is not fit to parent their children?" Eleven potential jurors raised their hands to indicate their agreement with this opinion.
¶11 Trial counsel then asked each of those jurors individually to provide an explanation regarding their opinions. As relevant to this appeal, Juror 8 stated, Counsel then asked Juror 8, "Do you think you'll be able to give [N.M.A.-S.] a fair shot given that we're going to be talking about addiction in this case?" There was no response from Juror 8 noted in the record; it merely indicates that counsel went on to ask Juror 15 about his opinion.
¶12 After voir dire was completed, the trial court and the parties discussed strikes for cause. Several potential jurors were struck, based on requests by both N.M.A.-S.’s trial counsel and the State; some of those requests were denied by the court. The parties then determined the jurors on which they wanted to exercise their peremptory strikes. The record does not indicate any further discussion regarding Juror 8.
¶13 A jury was impaneled that afternoon, which included Juror 8. After a three-day trial, the jury returned a verdict that the State had proven the grounds set forth in the TPR petitions.5 A dispositional hearing was then held, where the trial court ultimately found that N.M.A.-S.’s parental rights should be terminated.6
¶14 N.M.A.-S. filed a notice of appeal, but subsequently filed a motion to remand the matters for a hearing on her motion for a new trial. In that motion, N.M.A.-S. argued that her trial counsel was ineffective for failing to challenge Juror 8 for cause or use a peremptory strike.7 A hearing on that motion was held in September 2019,8 in which the postjudgment court heard testimony from N.M.A.-S.’s trial counsel.
¶15 Trial counsel testified that her primary strategy in picking the jury was "to gauge what people’s opinions were on AODA issues, since that was really the reason the case came into the court system in the first place, and the reasons that were preventing a safe return home" for the children. Counsel also stated that she had exercised all of the allotted peremptory strikes, with substantial input from N.M.A.-S. Counsel explained that they had not used the peremptory strikes against Juror 8 because there were likely other jurors that she and N.M.A.-S. "dislike[d]" more than Juror 8, and thus they had used the strikes against those jurors instead.
¶16 Trial counsel further explained that when she had asked the jurors whether they could give N.M.A.-S. a "fair shot," she was referring to whether they would be able to "judge the case fairly and impartially." Although the record does not reflect an answer to this inquiry from Juror 8, trial counsel asserted that she would not have moved on to question the next juror if there had been no response to the question by Juror 8. In other words, if Juror 8 had not given some type of nonverbal response, or had "done something with [his or her] demeanor or body language" to indicate bias against N.M.A.-S., trial counsel stated that she would have further questioned Juror 8. Trial counsel further testified that she did not remember "anybody not responding to a question."
¶17 The postjudgment court denied N.M.A.-S.’s motion. In its decision, it noted that while there may have been "some nonverbal queues that gave [trial counsel] the belief or the position that Juror Number 8 could, in fact, be fair," there was no definitive indication of that in the record. The court deemed that to be a deficiency. However, the court found that N.M.A.-S. was not prejudiced by this deficiency, since N.M.A.-S. was "very active in the exercise of peremptory challenges" and had conferred with trial counsel regarding the strikes. Therefore, the court found that there was no prejudice for trial counsel’s failure to move to strike for cause or to exercise a peremptory challenge with respect to Juror 8; thus, her ineffective assistance claim failed. This appeal follows.
¶18 "Wisconsin applies the two-part test described in Strickland [v. Washington , 466 U.S. 668 (1984) ], for evaluating claims of ineffective assistance of counsel." State v. Roberson , 2006 WI 80, ¶28, 292 Wis. 2d 280, 717 N.W.2d 111. To prove ineffective assistance of counsel, a defendant must show both that his trial counsel’s performance was deficient and that the deficiency prejudiced the defense. Strickland , 466 U.S. at 687. With regard to the deficiency prong, a defendant must demonstrate that specific acts or omissions of counsel "were outside the wide range of professionally competent assistance." Id. at 690. However, trial counsel is " ‘strongly presumed to have rendered’ adequate assistance within the bounds of reasonable professional judgment." State v. Balliette , 2011 WI 79, ¶25, 336 Wis....
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