Columbia County DHS v. K.D.K., 2022AP1835, 5/25/23, District 4 (1-judge opinion, ineligible for publication); case activity

K.D.K. challenged an order terminating his parental rights to C.A.K. on 3 grounds: (1) the judge was not properly assigned to preside over his case; (2) the circuit court refused to give a special verdict question asking whether it had been impossible for K.D.K. to meet the conditions for return set forth in the CHIPS dispositional; and (3) trial counsel was ineffective in several respects. The court of appeals rejected all claims.

This TPR case was originally assigned to Judge Andrew Voigt. Just before the jury trial on the ground phase, the circuit court issued an amended notice of hearing indicating that Judge James Evanson would preside over it. K.D.K. argued that Judge Evenson’s assignment to the case did not comply with §751.03 or SCR 70.23.

The court of appeals held that §751.03 simply allows the chief justice of SCOW to assign reserve judges to serve temporarily in any county circuit court. It does not impose a process for making the assignment.

Furthermore, SCR 70.23 governs judicial administration. The court of appeals may not review administrative actions by the circuit court, supreme court, or director of state courts. And there is no case law imposing a “presumption of regularity” for making judicial assignments. Opinion, ¶¶21-24 (citing Petitioner v. Evans, 2018 WI App 53, ¶15, 383 Wis. 2d 669, 917 N.W.2d 218).

K.D.K.’s claim that the circuit court failed to submit a special verdict question on whether it was impossible to perform the conditions for return set forth in the CHIPS order failed due to the harmless error doctrine.  The jury found 3 separate grounds for terminating K.D.K.’s parental rights. Assuming the circuit court erred in providing the requested instruction, K.D.K. did not challenge the other two grounds for termination found by the jury.  Opinion, ¶¶25-27.

K.D.K. also presented two ineffective assistance of counsel claims. First, trial counsel failed to advise K.D.K. of his right to request a substitution of judges. The court of appeals agreed that trial counsel performed deficiently but faulted K.D.K. for not even trying to prove prejudice. It rejected K.D.K.’s argument that the error was per se prejudicial because he failed to cite any legal authority for it. Opinion, ¶35.

Second, K.D.K. claimed that his trial lawyer failed to obtain and present his medical records to the jury. The court of appeals rejected this argument for lack of prejudice. The jury received other testimony and evidence on this matter, and it was uncontroverted. Opinion, ¶¶35-39.