COURT OF APPEALS

DECISION

DATED AND FILED

August 25, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

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Cir. Ct. Nos. 2018TP208

2018TP209

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STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.I.S., A PERSON UNDER THE 

AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.S.,

RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.T., A PERSON UNDER 

THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.S.,
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RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO E.S., A PERSON UNDER 

THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D. S.,

RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO D.G., A PERSON UNDER 

THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D. S.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County: 

CHRISTOPHER R. FOLEY, Judge. Affirmed. 
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¶1 BRASH, P.J.1 D.S. appeals the orders of the trial court terminating 

her parental rights for J.I.S., A.T., E.S. and D.G. She argues that she was denied 

the effective assistance of counsel at a motion hearing held in June 2019, during 

which she was without representation. She contends that this was a structural 

error, which is not subject to a harmless error analysis. D.S. further asserts that 

her trial counsel was ineffective in his failure to request an adjournment of the 

dispositional hearing when he had received a substantial amount of discovery the 

day before the hearing. We disagree and affirm.

BACKGROUND

¶2 D.S. is the biological mother of J.I.S., born November 3, 2010; A.T., 

born February 11, 2013; E.S., born January 13, 2014; and D.G., born April 28, 

2015. D.S. also has two other younger children who were not involved in these 

proceedings. 

¶3 J.I.S. and A.T. were previously found to be children in need of 

protection or services in August 2013. In November 2013, A.T. was returned to 

the care of D.S., and J.I.S. was placed with his biological father, D.M.,2 under the 

supervision of the Division of Milwaukee Child Protective Services (DMCPS).

The dispositional order was allowed to expire in November 2014. 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

2

 D.M.’s parental rights for J.I.S. were also terminated in these proceedings, but he is not 

a party to this appeal. A.T.’s biological father is unknown; his rights were terminated as well. 
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¶4 In March 2015, J.I.S. and A.T. were again found to be children in 

need of protection or services, along with E.S. D.G., who was born a month later 

with THC in her system, was found to be a child in need of protection or services 

in August 2015. These findings were primarily based on the long history of 

domestic violence between D.S. and her boyfriend, M.G., the father of E.S. and 

D.G.3 Furthermore, the children had sustained injuries that they disclosed were 

the result of physical abuse by D.S. and M.G. 

¶5 The children were placed in out-of-home placements, and 

requirements were set to ensure their safety before they could be returned to D.S.’s 

care. For example, it was mandated that D.S. was not to allow violence in her 

home or in front of the children. Additionally, DMCPS was to provide D.S. with 

services such as parenting programs, parent-child therapy, and individual therapy 

to assist her in meeting the requirements of having age-appropriate expectations 

for the children, providing safe care for them, and controlling her emotions. D.S. 

was also required to have regular communication with the family’s case manager, 

and to have regular visits with the children. 

¶6 D.S. failed to meet these requirements. There was another domestic 

violence incident between D.S. and M.G. reported in May 2018. Furthermore,

although D.S. denied that she was still in a relationship with M.G., D.S.’s two 

youngest children—one born in April 2018, and the other born subsequent to the 

May 2018 domestic violence incident—were conceived with M.G.

 

3

 M.G. is the biological father of D.G. and was adjudicated to be the father of E.S. 

M.G.’s parental rights for E.S. and D.G. were terminated in these proceedings, but he is not a 

party to this appeal. 
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¶7 Moreover, D.S. refused to participate in parenting programs, 

discontinued family therapy shortly after starting it, and was discharged from 

individual therapy due to her inconsistent participation. Additionally, she was 

inconsistent with her communication with her case manager, refused to give the 

manager access to her home, and was characterized as being “very defensive” and 

“caus[ing] unnecessary conflicts with DMCPS.” 

¶8 D.S. was also inconsistent with her visits with the children. Her 

visits at one point had progressed to being partially supervised, but were returned 

to being fully supervised by DMCPS due to safety concerns: she failed to use car 

seats when driving the children in her car; she left them unattended in the car; 

there was smoking in the home which aggravates their asthma; and she allowed 

them to watch inappropriate television shows depicting violence and foul 

language. In fact, “[t]he children articulated that they did not feel safe” with D.S. 

After the decision to return to supervised visits, D.S. put visitation on hold because 

she disagreed with that decision. 

¶9 DMCPS determined that “[o]verall, [D.S.] continues a pattern of 

immature and impulsive decision-making in regards to her children’s safety and 

her own well-being.” As a result, a petition for the Termination of Parental Rights 

(TPR) of D.S. with regard to J.I.S., A.T., E.S., and D.G. was filed on August 28, 

2018. In the petition, the State’s alleged ground for termination was the 

continuing need of protection or services, pursuant to WIS. STAT. § 48.415(2).
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¶10 The matter proceeded to a court trial4at D.S.’s request. It began on 

February 27, 2019, and continued over several days, concluding on April 15, 

2019. In a written decision filed April 22, 2019, the trial court held that the State

had proven that there was a continuing need of protection or services for the 

children. The court observed that “[t]he all encompassing and quintessential 

condition [D.S.] has not met is a demonstrated ability and willingness to provide 

safe and appropriate care for these children.” Thus, the case proceeded to a

dispositional hearing. 

¶11 That hearing was scheduled for June 11, 2019. At the start of that 

hearing, the trial court stated that trial counsel for D.S. had “r[u]n into a licensing 

CLE credit quagmire” and, as a result, was unable to represent D.S. at that time. 

Therefore, the dispositional hearing was rescheduled to July 19, 2019. 

¶12 However, there was another issue relating to treatment for A.T. that 

the trial court deemed to be an “emergent situation” which needed to be addressed 

that day. A.T. has significant behavioral problems, including running away, 

punching his fist through glass, and attempting to “jump out of two-story 

windows[.]” Just prior to the June 11 hearing, he had an incident for which he was 

hospitalized for inpatient treatment. The doctor treating A.T. recommended that 

he be put on medication, but D.S. refused to provide consent for that treatment. 

Thus, A.T. was discharged because without medication, the doctor felt there was 

nothing more that could be done for A.T. in the hospital setting. 

 

4

 The court trial and dispositional hearing were presided over by the Honorable 

Christopher R. Foley, and we refer to him as the trial court.
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¶13 The trial court determined that this issue required immediate 

attention, although it noted the “conundrum” presented by the situation: 

I don’t know what a judge does with this. This is a 

represented party, but [D.S.’s] lawyer can’t be present and 

can’t represent her; and, yet, she desperately wants to tell 

her side of this dispute about treatment for this child. I 

don’t know what a judge is supposed to do with that. 

I will note in past discussions about this, even when 

her lawyer was present, she was quite vociferous about her 

own position in regard to these issues. So I certainly am 

going to let her have at it. 

¶14 The court further observed that D.S.’s withholding of consent for 

treatment seemed to be related to her perception that she was being “disrespected” 

by the child welfare system. As a result, it believed that D.S. had “lost the ability 

to rationally evaluate what her child needs because she’s so angry at [DMCPS] 

and the old guy in the black dress.” 

¶15 The State had moved for temporary guardianship of A.T., which the 

trial court denied. However, the court ordered that A.T. be evaluated for treatment 

and medication, pursuant to WIS. STAT. § 48.373, to ensure that A.T. immediately 

received proper medical attention. 

¶16 The rescheduled dispositional hearing was held on July 19, 2019, 

with D.S.’s trial counsel again able to represent her. The trial court noted that in 

the time between the court trial and the dispositional hearing, D.S. had lost her job,

was on the verge of losing her home—even though DMCPS had twice paid for 

D.S.’s first month’s rent and security deposits to assist her in meeting the 

requirement of providing a safe home for the children, and had been “involved in a 

highly escalated confrontation with [J.I.S.] at a visit, causing [A.T.] to flee the 
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room.” The court observed that “[q]uintessentially, this represents all the 

instability, chaos, violence and emotional warfare so harmful to these children” 

which necessitated intervention by DMCPS. The court found this to be a 

“persistently recurring pattern of behavior rendering [D.S.] incapable of safe, daily 

care of her emotionally fragile and behaviorally challenging children.” Thus, the 

court determined that it was in the best interests of the children to terminate D.S.’s 

parental rights. 

¶17 D.S. filed a motion for a postdisposition evidentiary hearing in 

March 2020.5 She claimed that her trial counsel had provided ineffective 

assistance of counsel based on the suspension of his license which resulted in D.S. 

being unrepresented during the June 11, 2019 hearing regarding emergency 

medical treatment for A.T. D.S. further alleged that trial counsel did not obtain 

400 pages of relevant discovery until the day before the dispositional hearing, and 

that counsel should have moved to adjourn the hearing so that he could be more 

fully prepared. 

¶18 An evidentiary hearing was held in May 2020. D.S.’s trial counsel 

testified that his license had been suspended due to a problem with his bar dues 

payment not being properly processed. It was suspended on June 5, 2019, and 

reinstated on June 13, 2019; he was therefore unable to represent D.S. at the 

June 11, 2019 hearing. Counsel also testified that he had reviewed all of the 

discovery material with the assistance of his paralegal prior to the dispositional 

 

5

 A notice to pursue postdisposition relief was timely filed by D.S. in accordance with 

WIS. STAT. RULE 809.107(2)(bm), and this court remanded this matter to the circuit court for 

further proceedings. D.S.’s postdisposition motion was heard by the Honorable Mark A. Sanders, 

who we refer to as the postdisposition court.
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hearing. Furthermore, he stated that if that material had contained something 

critical to the dispositional hearing, he would have brought a motion to adjourn the 

hearing. 

¶19 The postdisposition court, which found trial counsel’s testimony to 

be credible, determined that counsel was not deficient with regard to his review of 

the discovery material just prior to the dispositional hearing. The court noted that 

the material was reviewed by counsel and his experienced paralegal who was 

familiar with the case, and that this was “not an unusual practice.” In fact, the 

court found that “[i]t is not inappropriate or in any way deficient for a lawyer to 

rely on the work of a paralegal under his supervision to review discovery 

material.” 

¶20 With regard to the June 11, 2019 hearing, the postdisposition court 

noted that “getting one[’]s license suspended in the middle of a case is probably 

deficient performance.” It further opined that it would have been “prefer[]able” 

for D.S. to have counsel present at the June 11, 2019 hearing when the issue 

regarding treatment for A.T. was heard and an order for evaluation entered—even 

though the trial court had deemed it to be an emergency—because the order 

“implicate[d] [D.S.]’s rights.” 

¶21 However, the postdisposition court determined that D.S. had not 

demonstrated that she was prejudiced. The court noted that the motion for 

temporary guardianship advanced by the State at that hearing was denied. 

Furthermore, the court observed that even if D.S.’s lack of representation was 

prejudicial, it would have been only with regard to the case relating to A.T., and 

that issue was rendered moot with the trial court’s termination of D.S.’s parental 
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rights for all of the children, including A.T. In any event, the postdisposition court 

found that any prejudicial effect was not sufficient to undermine its confidence in 

the outcome of the case. Therefore, it denied D.S.’s postdisposition motion. This 

appeal follows.

DISCUSSION

¶22 We review D.S.’s claim of ineffective assistance of counsel under 

the familiar standard. To prove ineffective assistance, the defendant must show 

that his or her trial counsel’s performance was deficient and that the deficiency 

prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“To prove constitutional deficiency, the defendant must establish that counsel’s 

conduct falls below an objective standard of reasonableness.” State v. Love, 2005 

WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62. “To prove constitutional 

prejudice, the defendant must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. (citations and internal quotation marks omitted). 

If a defendant fails to satisfy one component of the analysis, a court need not 

address the other. Strickland, 466 U.S at 697.

¶23 Whether counsel’s performance was deficient and whether the 

deficiency was prejudicial are questions of law that we review de novo. State v. 

Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990). However, findings of 

fact made by the trial court will not be overturned unless they are clearly 

erroneous. Id. at 127.
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¶24 First, with regard to trial counsel’s review of the discovery material 

the day before the dispositional hearing, we agree with the postdisposition court’s 

assessment that this was not deficient performance. Counsel had the assistance of 

his paralegal, who was experienced and very familiar with D.S.’s case. In fact, as 

the postdisposition court noted, this type of review of discovery material takes 

place regularly in all types of litigation practices, due to the volume of information 

involved. Furthermore, counsel testified that he was able to determine that this 

material would not affect his strategy during the dispositional hearing. Therefore, 

counsel’s conduct did not “fall[] below an objective standard of reasonableness.” 

See Love, 284 Wis. 2d 111, ¶30. 

¶25 We next turn to D.S.’s lack of representation at the June 11, 2019 

hearing. “The statutory right to the assistance of counsel in a termination of 

parental rights proceeding is ... essential to a fair proceeding.” State v. Shirley E., 

2006 WI 129, ¶60, 298 Wis. 2d 1, 724 N.W.2d 623. This right is violated if a 

parent in a TPR proceeding is “totally deprived of the presence and assistance of 

an attorney during a critical stage in the proceeding[.]” Id., ¶61. In that case, the 

violation is a structural error, and a new trial is required. Id., ¶63. This is a 

question of law that we review de novo. State v. Carter, 2010 WI App 37, ¶17, 

324 Wis. 2d 208, 781 N.W.2d 527.

¶26 “A critical stage is any point in the criminal proceedings when a 

person may need counsel’s assistance to assure a meaningful defense.” Id., ¶18 

(citation omitted). For example, this court in Carter determined that the 

defendant’s right to counsel was violated when the trial court took sworn 

testimony from a witness—and later allowed that testimony to impeach that 

witness’s trial testimony—without the defendant or his attorney present. 
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Id., ¶¶20, 39. We determined that it was not “clear beyond a reasonable doubt that 

a rational jury would have found [the defendant] guilty had the ... testimony, 

taken during an ex parte hearing, not been admitted during his trial.” Id., ¶30.

¶27 In this case, we conclude that the June 11, 2019 hearing was not a 

critical stage in these proceedings. The order issued by the trial court that day was 

for A.T. to be medically evaluated, which the court had already determined was an 

emergency situation; thus, the need for D.S. to present a meaningful defense was 

not paramount. Furthermore, this order—and the circumstances surrounding it—

were not discussed by the trial court in its written decision terminating D.S.’s 

parental rights after the dispositional hearing. In other words, it does not appear to 

have played a role in the ultimate outcome of these proceedings. Therefore, as this 

hearing was not a critical stage in the proceedings, it was not a structural error for 

trial counsel not to be present at that time.

¶28 Rather, any error that may have occurred under those circumstances 

is subject to a harmless error analysis. See State v. Hansbrough, 2011 WI App 

79, ¶10, 334 Wis. 2d 237, 799 N.W.2d 887 (“Constitutional errors at trial fall into 

two categories: trial errors, which are subject to harmless error analysis, and 

structural errors, which defy analysis by harmless error standards.” (citation and 

internal quotation marks omitted)). An error is harmless if there is “no reasonable 

possibility” that it contributed to the outcome. State v. Tulley, 2001 WI App 236, 

¶7, 248 Wis. 2d 505, 635 N.W.2d 807. A reasonable possibility is “one sufficient 

to undermine confidence in the outcome of the proceeding.” Id. 

¶29 As we discussed above, the order issued at the hearing on June 11, 

2018—emergency medical treatment for A.T—did not affect the outcome of the 
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proceedings. We therefore conclude that any error created by trial counsel’s 

inability to represent D.S. at that hearing was harmless. See id.

¶30 For the same reason, D.S.’s claim also fails under the ineffective 

assistance of counsel rubric. Even if we assume, without deciding, that the 

postdisposition court was correct in its finding that trial counsel’s payment 

problems with his bar dues, which resulted in his license suspension, constituted

deficient performance, we agree that D.S. has not established that she was 

prejudiced by this presumed error. Again, the trial court’s order that day had no 

bearing on the final decision in these proceedings. Therefore, D.S. has not shown 

that there is a reasonable probability, sufficient to undermine confidence in the 

ultimate outcome, that counsel’s presumed error affected the result of the 

proceedings. See Love, 284 Wis. 2d 111, ¶30. 

¶31 Accordingly, we affirm the orders terminating D.S.’s parental rights. 

By the Court.—Orders affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.