Background
G.G.W.-H. was born in August 2020. In July 2021, Green County received a neglect report and, after K.M.S. declined temporary housing assistance and returned to Minnesota, took the child into protective custody and placed her in foster care. The child was adjudicated in need of protection and services (CHIPS) in October 2021. K.M.S. lived in Minnesota throughout the proceedings, traveling periodically to Wisconsin for county-funded visits.
In September 2023, Green County petitioned to terminate K.M.S.’s parental rights on two grounds: continuing CHIPS under Wis. Stat. § 48.415(2) and failure to assume parental responsibility under § 48.415(6). A jury found both grounds proved. The circuit court then determined that termination was in the child’s best interests and entered the termination order. K.M.S. filed a postdisposition motion alleging ineffective assistance of trial counsel, which the circuit court denied after a Machner hearing.
K.M.S. appealed, arguing (1) her trial counsel was constitutionally ineffective for allowing the jury to hear evidence about CHIPS and termination proceedings involving her younger daughter in Minnesota, (2) the evidence was insufficient to support either ground for termination, and (3) the circuit court abused its discretion in finding termination was in the child’s best interests.
The Court’s Holding
The court of appeals affirmed on all three issues. On ineffective assistance, the court held that trial counsel did not perform deficiently. Counsel’s decision to ask K.M.S. about Minnesota foster homes was a deliberate strategic choice — designed to suggest the County failed to make a reasonable effort to place G.G.W.-H. closer to K.M.S. — that was informed by the pretrial ruling limiting prejudicial evidence and was not irrational. As to counsel’s responses when the County elicited further testimony about the younger daughter, the record showed counsel actively objected and was overruled, and counsel’s decision not to move to strike one volunteered answer rested on a rational concern that highlighting it would cause more harm than good.
On sufficiency of the evidence, the court applied the deferential standard requiring affirmance if any credible evidence, viewed in the light most favorable to the verdict, supports the jury’s finding. The court found that standard easily met on the continuing-CHIPS ground given extensive testimony about the services the County provided, and on the failure-to-assume ground given testimony that K.M.S. failed to comply with numerous conditions unrelated to her geographic distance from the child — including failing to sign releases, keep the County informed of her address, engage in mental health treatment, or attend available parenting education.
On disposition, the court found no erroneous exercise of discretion. K.M.S.’s argument that the statutory report lacked the child’s medical records was unsupported because substantial testimony about the child’s eye condition was presented at the hearing. Her argument that the County’s foster placement in Wisconsin prevented a sibling relationship was legally irrelevant to whether the circuit court properly weighed the statutory best-interests factors.
Key Takeaways
- A parent’s ineffective-assistance claim in a TPR proceeding is governed by the Strickland two-part test; strategic choices by counsel — including asking questions that carry some risk of opening the door to adverse evidence — are not deficient if rationally grounded in the circumstances at the time.
- On sufficiency review of a jury TPR verdict, the appellate court affirms if there is any credible evidence supporting the verdict, even if contradicted by stronger evidence — a standard K.M.S.’s cursory argument failed to address.
- A parent who fails to comply with reunification conditions unrelated to geographic barriers cannot defeat a failure-to-assume-parental-responsibility finding by pointing to placement decisions that made in-person contact difficult.
- At the disposition phase, a parent must do more than identify procedural gaps or blame the County for the child’s circumstances; the court’s task is the child’s best interests under the statutory factors, and the parent must show the court failed to apply those factors properly.
Why It Matters
This decision reinforces the high bar parents face when challenging TPR verdicts on appeal in Wisconsin. The opinion illustrates that trial counsel’s calculated risk-taking — such as eliciting testimony that could open the door to prejudicial evidence — will generally be protected as reasonable strategy when counsel had a rational basis for the choice and had already secured pretrial limits on the most damaging information. Defense attorneys in TPR cases should document their strategic reasoning carefully, as post-hoc Machner hearings will scrutinize counsel’s thinking at the time, not in hindsight.
The case also highlights the cumulative burden on parents to comply with a broad array of reunification conditions. Even where geographic separation from a child creates genuine obstacles, a parent’s failure to satisfy conditions entirely within her control — such as maintaining contact information with the county, signing releases, or pursuing mental health treatment — can independently sustain a failure-to-assume finding and undermine arguments that the system created an impossible situation.