State v. T.M., 2021AP1729, 8/16/22, District 1 (1-judge opinion, ineligible for publication); case activity

“Taylor” presented three challenges to the termination of her parental rights to her son: (1) erroneous admission of a psychological examination; (2) ineffective assistance of trial counsel for failure to object to a flawed jury instruction; and (3) insufficient evidence. The court of appeals rejected all of them.

Erroneous admission of psychological examination. Taylor argued that the circuit court erroneously admitted a psychological examination of her into evidence. The report was privileged under §905.04, and none of the exceptions to that rule applied.

The court of appeals disagreed. Section 905.04(4) lists exceptions to the doctor-patient privilege for commitment, guardianship, protective placement, and treatment of sexually violent persons. Section 905.04(4)(b) specifically excepts “examinations by order of a judge.”

According to the court of appeals, a judge issued a CHIPS dispositional order providing conditions that Taylor had to meet for the return of her son. One of them was to complete a psychological or psychiatric evaluation. Because a judge ordered the psychological examination it was properly admitted into evidence per §905.04(4)(b). Opinion, ¶¶9-13.

Ineffective assistance of counsel. During the grounds phase, the circuit court instructed the jury that in deciding the “continuing CHIPS” ground, it could consider the Division of Milwaukee Child Protective Services’ efforts to provide services to Taylor since the filing of the petition on July 18, 2019. But then the court instructed the jury that when deciding whether Taylor met the conditions of return, it could consider the facts and circumstances as they existed on July 18, 2019, the date the petition was filed.  Opinion, ¶16.

The court of appeals held that, as a matter of law, evidence of DMCPS’s efforts to provide services after the filing of the petition was irrelevant and inadmissible. Trial counsel did not object to this error. In fact, she admitted that she missed the issue. Thus, the court of appeals held that she performed deficiently. Opinion, ¶30.

However, based on the totality of the evidence (and the court goes to great lengths to summarize it) there was no reasonable probability of a different outcome if the jury had heard only the evidence of DMCP’s efforts to provide services prior to the filing of the petition. Opinion, ¶42.

Sufficiency of the evidence. The court of appeals likewise held that considering all of the credible evidence, and the reasonable inferences drawn from it, the evidence was sufficient to support the ultimate finding that DMCPS made a reasonable effort to provide court-ordered services to Taylor. Opinion, ¶¶44-46.