IN RE TERM., PARENTAL, OF FANTASIA C. , 98-1747 (Wis.Ct.App. 11-19-1998)

Court of Appeals of Wisconsin.
Nos. 98-1747, 98-1748.
Opinion Released: November 19, 1998. Opinion Filed: November 19, 1998. Not recommended for publication in the official reports. See Rule 809.23(1)(b)4, Stats.

APPEAL from orders of the circuit court for Rock County: GERALD W. JAECKLE, Judge. Affirmed.

DYKMAN, P.J.[1]

Amy L. appeals from orders terminating her parental rights to Fantasia C. and Laniah C. She argues that her trial counsel was ineffective in failing to object to certain damaging testimony concerning both her relationship with two of her other children and her ability to make substantial progress toward satisfying the conditions set by the court for the return of Laniah and Fantasia. She also asserts that her trial counsel erred when he made inaccurate and prejudicial statements to the jury during opening and closing arguments concerning the relevant facts and applicable legal standards. She previously appealed and we remanded the case for a Machner hearing.[2] After the hearing, the trial court determined that her trial counsel’s performance was not prejudicial. We agree. Accordingly, we affirm.

Background
In July 1996, Amy L. informed Jennifer Fischer, a social worker for Rock County, that she was unable to control or provide for her children, Fantasia C., born October 30, 1993, and Laniah C., born October 10, 1994, and requested to have them placed in foster care. On August 26, 1996, the court entered dispositional orders stating that Fantasia and Laniah were in need of protection and services within the meaning of § 48.13(4), Stats. The court also set out six conditions that Amy L. was required to meet before her children would be returned to her. The conditions were that: (1) she maintain a safe and stable residence, suitable for children, for a period of six months; (2) she demonstrate an ability to meet the child’s physical and emotional needs, which included obtaining and maintaining employment; (3) she must demonstrate an understanding of how her past history of abuse has affected her parenting ability; (4) she must demonstrate an ability to consistently protect her children; (5) she must develop stress management and coping skills; and (6) she must not reside with anyone who is detrimental to her children.

The County filed petitions requesting the involuntary termination of Amy L.’s parental rights pursuant to §48.415(2)(c), Stats., stating that she had not made substantial progress toward satisfying these six conditions and it was unlikely that she would satisfy them in the next year.

At trial, John Dalee and Tracy Mayer testified for the County regarding their involvement in this case. Each testified that, in their professional opinions, Amy L. had not made substantial progress toward meeting the conditions set by the court, and that it was unlikely that she would satisfy the conditions within the next year. After hearing all the evidence, the jury returned verdicts that the elements of § 48.415(2), Stats., were met for both children. On March 30 and April 9, 1998, the court conducted the dispositional hearing under §§ 48.426 and 48.427, Stats., and concluded that it was in the best interests of the children that Amy L.’s parental rights be terminated.

On appeal, Amy L. argued that her trial counsel was ineffective. We remanded the case to the trial court for aMachner hearing. At that hearing, Amy L. argued that her trial counsel: (1) misstated legal standards in his opening statements; (2) failed to object to damaging testimony; and (3) made inaccurate factual statements during closing arguments concerning her inability to make substantial progress toward meeting the conditions. The trial court concluded that while trial counsel may have been deficient during certain aspects of the trial, his performance did not prejudice the outcome of the case. Amy L. now appeals.

Discussion
An indigent parent has a statutory right to effective assistance of counsel in termination of parental rights’ proceedings. A.S. v.State, 168 Wis.2d 995, 1002, 485 N.W.2d 52, 54 (1992). Wisconsin uses a two-prong test to determine whether an attorney’s actions constitute ineffective assistance of counsel. See State v.Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990). The first prong considers whether trial counsel’s performance was deficient. State v. Littrup, 164 Wis.2d 120, 135, 473 N.W.2d 164, 170 (Ct.App. 1991). If counsel’s performance is deficient, the second prong considers whether the deficient performance prejudiced the defense. Id. If the claimant fails to meet either the deficient performance or prejudicial component of the test, we need not address the other component. See State v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69, 76 (1996). Whether deficient performance and prejudice exist are questions of law that we review de novo. Id. at 236-37, 548 N.W.2d at 76.

Amy L. argues that her trial counsel was deficient in representing her, and that his deficient performance prejudiced the outcome of the case. For example, Amy L. contends that her trial counsel was ineffective in allowing the County to question her about two of her other children. The County asked her if she had other children and whether those other children lived with her. She responded that she had two other children, Brittany and Jewel, and that they lived with their father. The County then asked whether the children are ever placed with her, and she responded that the children’s father denied her placement privileges after she was late in returning them to him following a weekend visit. Amy L. contends that her trial counsel should have objected to this line of questioning because it was irrelevant and prejudicial the outcome of the case.

At the Machner hearing, the court concluded that trial counsel was deficient in not objecting to this line of questioning, and that it would have sustained an objection if one had been made. However, the court determined that the trial counsel’s failure to object was not prejudicial. To show prejudice, the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. State v. Harvey, 139 Wis.2d 353, 375, 407 N.W.2d 235, 245 (1987). A reasonable probability is the probability sufficient to undermine the confidence in the outcome.Id. We are satisfied that the trial counsel’s failure to object to this line of questioning was insufficient to affect the outcome in this case. Amy L. admitted at trial that she had not made substantial progress in meeting some of the conditions set by the court. She also admitted to making statements that she did not think she would meet the conditions, and that it may be better if the County kept her children. In sum, because we are satisfied that the failure to object to this line of questioning was not prejudicial, we need not consider whether it was deficient performance. See Sanchez, 201 Wis.2d at 236, 548 N.W.2d at 76.

Amy L. next contends that her trial counsel was ineffective in failing to object to certain testimony by John Dalee, a counselor at the Beloit Counseling Center, and by Tracy Mayer, a case manager with Child Protective Services in Rock County, regarding their respective opinions as to whether she was making substantial progress toward meeting the conditions set by the court.[3] Both Dalee and Mayer opined that Amy L. struggled to make substantial progress toward meeting the conditions. Amy L. contends that the County failed to lay the proper foundation necessary to qualify Dalee and Mayer as experts; therefore, their testimony was inadmissible. Amy L. also argues that her trial counsel should have objected to statements in which Dalee and Mayer both stated that it was unlikely that she would meet these conditions within the next year. She contends that their statements were inadmissible speculation.

At the Machner hearing, trial counsel stated that he did not object to this testimony because he believed the witnesses to be qualified experts who were offering relevant opinion testimony. Trial counsel also stated that he did not object to certain statements made by Dalee because Dalee unexpectedly testified in a manner favorable to Amy L.’s position. He therefore decided to give Dalee more leeway in the anticipation and hope that his testimony would continue to be favorable.

The trial court concluded that trial counsel was not ineffective by failing to object to these statements. We agree. Dalee and Mayer are experts for the purposes of this case. A witness qualifies as an expert based on his or her background, education and experience. See Wester v. Bruggink, 190 Wis.2d 308, 319, 527 N.W.2d 373, 378 (Ct.App. 1994). Dalee is a therapist with a master’s degree in guidance and counseling and has six years of experience as a therapist. He specializes in handling clients referred to him from Child Protective Services, and has worked with approximately five hundred families in the past six years. Dalee has also been Amy L.’s therapist for two years. Mayer is a case manager with Child Protective Services with a master’s degree in social work. She has seven years experience as a social worker with the County. In January 1997, she was assigned as Amy L.’s case manager.

The trial court also concluded that Mayer’s and Dalee’s testimony was admissible. An expert’s testimony is admissible if it assists the trier of fact in understanding the evidence before it or in making a factual determination. See § 907.02, Stats.; State v.Richardson, 189 Wis.2d 418, 423, 525 N.W.2d 378, 380 (Ct.App. 1994). The trial court determined that their testimony was probative of Amy L.’s progress in the past and the ultimate question of whether she would meet the conditions within the next year. We therefore are satisfied that allowing its admission does not constitute deficient or prejudicial performance.

Amy L. next asserts that trial counsel erred when he misstated the appropriate legal standard in his opening statement. The trial counsel stated that one of the issues in the case was whether Amy L. “substantially complied” with the conditions set by the court. However, Amy L. argues that this is not the correct legal standard; the standard is whether she demonstrated “substantial progress” toward meeting the conditions for the children’s return as set out in § 48.415(2), Stats. She contends that the terms “progress” and “compliance” have significantly different meaning, and the trial counsel prejudiced the outcome by informing the jury of an incorrect legal standard.

Amy L. also asserts that trial counsel erred during closing arguments when he essentially conceded that she failed to meet the conditions set by the court for the return of Fantasia and Laniah. Amy L. argues that her trial counsel was incorrect, and that there was evidence that she had been striving to meet the conditions. She stated that she was attempting to locate a safe and suitable residence, she was receiving counseling for residence and employment issues, she was making progress in understanding how her past history of abuse affected her parenting ability, and she was making substantial progress in developing stress management and coping skills.

At the Machner hearing, trial counsel stated that he told the jury that, based on the evidence, they could make the inference that she had not made substantial progress toward meeting the six conditions, not that they should make that inference. He further stated that it was his strategy to essentially concede this point and focus on the likelihood that she would meet the conditions within the next year. He did not want to lose credibility with the jury by arguing that she had made substantial progress; instead, he wanted to focus on points on which they could prevail. He stated that he discussed this strategy with Amy L. prior to trial.

The trial court concluded that the misstatement of the legal standard during opening arguments was not deficient performance and was not prejudicial, presumably because the terms are interchangeable in this context. It also held that the trial counsel was not deficient in conceding that Amy L. may not have made substantial progress toward meeting the six conditions in the past. The trial court recognized that conceding this fact was necessary in order to maintain credibility with the jury, and that the only way that trial counsel could prevail would be to focus primarily on her likelihood of success within the next year. Finally, the trial court stated, and we agree, that neither of these statements were prejudicial because the court instructed the jury that opening and closing statements by the attorneys were not evidence, and they should not be considered when the jury makes its determination. Furthermore, the trial court properly instructed the jury as to the appropriate legal standard prior to deliberations. We therefore conclude that trial counsel was not ineffective in making these statements.

We conclude that the trial counsel’s overall performance did not alter the result of the proceeding, and, therefore, was not prejudicial. Accordingly, we affirm.

By the Court. — Orders affirmed.