COURT OF APPEALS

DECISION

DATED AND FILED

July 19, 2022

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. 

Appeal No. 2021AP1986 Cir. Ct. No. 2020TP50

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO G. Q. W.,

A PERSON UNDER THE AGE OF 18:

CHIPPEWA COUNTY DEPARTMENT OF HUMAN SERVICES,

 PETITIONER-RESPONDENT,

 V.

J. W.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Chippewa County: 

BENJAMIN J. LANE, Judge. Affirmed. 
No. 2021AP1986

2

¶1 HRUZ, J.1 Janine2appeals from an order terminating her parental 

rights to her child, and from an order denying her motion for postdisposition 

relief.3 She argues there was insufficient evidence to support the jury’s verdict 

that the Chippewa County Department of Human Services (“the County”) made 

the required reasonable effort to provide the services ordered by the circuit court

in its dispositional order designating her son, George, as a child in need of

protection or services (“CHIPS”). Additionally, Janine argues that her trial 

counsel was ineffective by failing to object at a number of key points during her 

grounds-phase trial. Ultimately, we conclude that there was sufficient evidence to 

support the jury’s verdict and that Janine’s counsel was not constitutionally 

ineffective. Accordingly, we affirm the orders.

BACKGROUND

¶2 Janine’s then-fourteen-month-old son, George, was taken into foster 

care by the County on June 18, 2019, after Janine was arrested for violating

conditions of her probation. During the course of her arrest, Janine admitted to 

smoking methamphetamine and possessing drug paraphernalia. George was 

removed from Janine’s home based on the safety concerns resulting from Janine’s 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2

 For ease of reading and to protect confidentiality, we refer to the appellant and her son 

in this confidential matter using pseudonyms, rather than their initials or names. 

3

 Cases appealed under WIS. STAT. RULE 809.107 “shall be given preference and shall 

be taken in an order that ensures that a decision is issued within 30 days after the filing of the 

appellant’s reply.” See RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a 

delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in 

this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 

694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this 

decision is issued.
No. 2021AP1986

3

use of methamphetamine in the home, in addition to Janine’s inability to care for 

George due to her incarceration.

¶3 After a dispositional hearing held on August 5, 2019, George was 

designated as a child in need of protection or services and was placed with a foster 

family. As a part of the CHIPS dispositional order, Janine was required to meet a 

number of court-ordered conditions in order for George to be returned to her. 

During the hearing, Janine was informed orally of the potential grounds for the 

termination of her parental rights to George, and she also signed a written form 

including the same information. 

¶4 On December 23, 2020, the County filed a petition to terminate 

Janine’s parental rights to George, alleging that grounds for termination existed 

under WIS. STAT. § 48.415(2)(a)—continuing CHIPS. Janine contested the 

County’s petition, and a one-day jury trial on the grounds for termination took 

place on May 27, 2021. As relevant to the issues on appeal, opening and closing 

statements were made by both parties and by George’s guardian ad litem 

(“GAL”). A number of witnesses testified regarding the court-ordered conditions 

Janine was required to meet for George to be returned to her custody. Only 

portions of the lengthy trial testimony are relevant to the scope of this appeal, and 

they are detailed throughout the remainder of this opinion. 

¶5 The conditions imposed on Janine required that she: (1) cooperate 

with the County and attend all scheduled meetings while following any 

recommendations made therein; (2) notify her social worker within twenty-four 

hours of any police contacts and changes to her residence, telephone number, or

employment; (3) cooperate with announced and unannounced County visits; 

(4) provide her social worker with documentation of her completed conditions;
No. 2021AP1986

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(5) not provide primary care for any child under the age of eighteen; (6) participate 

in individual counseling as deemed appropriate and follow through with any 

recommendations; (7) not associate or live with anyone involved in using illegal 

drugs or any dangerous activity that could affect George’s safety; (8) adhere to 

any treatment recommendations made as a result of George’s developmental and 

psychological assessments; (9) have regular and successful visits and contact with 

George pursuant to the County’s visitation plan; (10) engage with any assessments 

or recommended treatments as deemed appropriate by her social worker; 

(11) provide George with a safe, suitable and stable home in order to meet his 

physical, emotional, medical and environmental needs on a daily basis; (12) not 

use or possess any drugs or chemical substances, and submit to random drug 

screenings; and (13) sign consents for treatment and any necessary release-ofinformation forms to allow the County to obtain and share information with 

providers for case management purposes. 

¶6 Abigail Smasal, Janine’s case manager, testified regarding the 

efforts that she and the County made regarding each of Janine’s court-ordered 

conditions, in addition to Janine’s level of compliance with those conditions. 

Janine was offered weekly visits with George until March 2020, but she missed a 

significant number of these visits. Subsequently, the COVID-19 pandemic 

necessitated the transition of these visits to a virtual format, at which time the 

County and George’s foster parents increased Janine’s visits to two per week. 

¶7 George’s foster father testified that Janine attended forty-seven out 

of ninety-four of her scheduled virtual visits. When Janine missed a virtual visit,

she would sometimes email afterward to explain that her absence was due to 

technical problems or a lack of cellular connection, but she did not always do so. 

In addition, George’s foster father testified that despite his wife creating a Google 
No. 2021AP1986

5

phone number that was available for Janine to call if she was having issues with a 

virtual visit, and asking her to reach out if she had issues, Janine did not do so. 

¶8 Smasal testified that although Janine attended the majority of their 

required monthly meetings, she did miss a few meetings. In addition, Janine 

“frequently” did not notify Smasal of her address changes or of her contacts with 

police. Smasal explained that despite consistent referrals and follow-ups, Janine 

did not complete her required counseling and failed to complete assessment 

programs the County deemed appropriate. Smasal also testified that throughout 

the majority of the period she was working with Janine, including when Janine 

was participating in rehabilitation services, Janine continued to test positive for 

methamphetamine. 

¶9 Additionally, Smasal stated that she believed Janine failed to comply 

with two other conditions—namely, by associating with others involved with 

illegal drugs and by failing to obtain stable housing—the latter of which was also 

testified to by other witnesses. Smasal also testified to her efforts in helping 

Janine meet her various conditions, including, among other things, driving to 

Janine’s home to conduct drug tests personally; referring Janine to counseling and 

treatment programs; providing her with a gas card; and pointing her to medical 

transport options to help with transportation. 

¶10 Janine testified at trial regarding her continued drug use and her

inability to meet many of her court-ordered conditions, including those pertaining 

to housing, treatment, drug use, and visitation. However, Janine testified that 

many of these failings were due to a lack of effort on the County’s part, a lack of 

internet access to facilitate her virtual visits with George, and a lack of available 

transportation to allow her to get to her required services. 
No. 2021AP1986

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¶11 The jury ultimately entered a verdict in favor of the County, finding 

that the County made a reasonable effort to provide the services ordered by the

circuit court and that Janine had failed to meet the conditions established for 

George’s safe return. After a dispositional hearing, the court ordered the 

termination of Janine’s parental rights to George on June 17, 2021. 

¶12 Janine filed a motion for postdisposition relief, arguing that her 

attorney was ineffective for failing to object at key points during the grounds trial.

On February 16, 2022, after holding a Machner4 hearing, the circuit court denied 

Janine’s motion. Janine now appeals from the order terminating her parental 

rights to George and from the order denying her motion for postdisposition relief. 

We include additional facts in the discussion section where relevant.

DISCUSSION

1. Sufficiency of the evidence

¶13 Janine first argues that the County presented insufficient evidence at 

trial to support the jury’s verdict. Specifically, she argues the County did not

satisfy its burden of proving that George continued to be a child in need of 

protection or services because the County failed to show that it made a reasonable 

effort to provide court-ordered services to her. We disagree.

¶14 On appeal, this court will not upset a verdict if any credible evidence 

supports it. See Richards v. Mendivil, 200 Wis. 2d 665, 671, 548 N.W.2d 85 

(Ct. App. 1996). The credibility of the witnesses and the weight afforded to their 

 

4

 State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
No. 2021AP1986

7

testimony are left to the jury. See id. If more than one reasonable inference may 

be drawn from the evidence, this court must accept the jury’s choice, and we 

consider the evidence in the light most favorable to the jury’s verdict. See State v. 

Poellinger, 153 Wis. 2d 493, 501, 506-07, 451 N.W.2d 752 (1990). As such, we 

search the record for credible evidence to sustain the verdict, not for evidence to 

sustain a verdict the jury did not reach. See Richards, 200 Wis. 2d at 671.

¶15 To establish that the continuing CHIPS ground for an involuntary 

termination of parental rights (TPR) exists, the County has the burden to prove 

that several elements are met. See WIS. STAT. § 48.415(2). The only element 

Janine challenges on appeal is whether the County made a reasonable effort to 

provide the services ordered by the circuit court, so that Janine could meet the 

conditions for George to be returned to her home. See § 48.415(2)(a)2.b. The 

court instructed the jury that a “reasonable effort” is defined as 

an earnest and conscientious effort to take good faith steps 

to provide the services ordered by the court which takes 

into consideration the characteristics of the parent or child 

or of the expectant mother or child, the level of cooperation 

of the parent or expectant mother and other relevant 

circumstances of the case.

Sec. 48.415(2)(a)2.a. The jury was then asked to determine whether the County 

had proven, by evidence that was clear, satisfactory and convincing, to a 

reasonable certainty, that it made a reasonable effort to provide court-ordered 

services under the continuing CHIPS ground. See WIS JI—CHILDREN 324.

¶16 Janine explains that although she initially had in-person visits with 

George, as a result of the COVID-19 pandemic, those visits were ultimately 

converted to video calls. Janine argues that although she had informed the County

that she did not have a reliable phone or internet connection, it failed to aid her in 
No. 2021AP1986

8

obtaining a phone, a computer, a reliable cellular connection, or a Wi-Fi

connection to facilitate her video visits with George. Janine takes issue with

Smasal’s testimony at trial that those items “would be something that we’d have to 

provide every client just to make things fair, and we couldn’t sustain that 

financially,” and Janine argues that such services should be tailored to individual 

parents’ needs. 

¶17 We conclude that credible evidence presented at trial supports the 

jury’s conclusion that the County made a reasonable effort to facilitate Janine’s

visits. As the County points out, Janine attended less than half of her scheduled 

in-person visits prior to the COVID-19 pandemic, and the County doubled the 

number of visits to twice a week after the visits transitioned to a virtual format. In 

addition, despite her claims, the evidence is clear that Janine was not wholly 

unable to access these virtual visits. Janine had a working phone, in addition to 

the ability to borrow one from her roommate if hers was not working. 

Furthermore, Janine testified that because she had bad reception where she lived, 

she sometimes needed to go down the street to “get the extra Wi-Fi.” Although 

potentially inconvenient, this fact further shows that Janine had the capacity to 

attend most of her scheduled video calls with George. 

¶18 We note that the County and George’s foster parents made these 

visits easier by scheduling them at the same time every week and by making them 

accessible by the same Zoom link each time. In addition, while working closely 

with Smasal, George’s foster father offered to accommodate Janine if she had any 

issues with the virtual visits. George’s foster parents even provided Janine with a 

unique phone number to call to get in touch with them. The foster father also 

testified, however, that Janine never notified him or his wife via this designated 

number that she was experiencing any issues. George’s foster father also noted 
No. 2021AP1986

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that sometimes Janine would notify him after the fact that she had missed the call 

due to data or other issues, but she often would not provide any notice regarding 

her failure to connect. His visit log also shows that many visits were missed for 

unexplained reasons. Ultimately, Janine attended forty-seven out of ninety-four of 

the scheduled virtual visits. This fact shows that Janine had the ability to attend

many of the virtual visits, even if she ultimately failed to do so on numerous 

occasions.

¶19 Although it might have been easier for Janine if the County had 

provided her with equipment or internet service to facilitate her attendance at the 

virtual visits, the County was not obligated to do so in order to make “an earnest 

and conscientious effort to take good faith steps to provide the services ordered.” 

See WIS. STAT. § 48.415(2)(a)2.a. While Janine points to school districts and 

other State organizations that she claims were able to provide equipment for 

virtual calls during the pandemic, what is at issue here is the reasonableness of the 

County’s effort as defined under § 48.415(2)(a)2.a., given its capabilities under the 

circumstances. See § 48.415(2)(a)2.a. (defining “reasonable effort” as an earnest 

and conscientious effort that takes into consideration, among other things, “other 

relevant circumstances of the case”).

¶20 In particular, Smasal directly testified that the County could not 

afford to provide cell phones, computers, or internet service to all of its clients. In 

addition, to cooperate in remedying these issues, Janine could have asked 

George’s foster parents for assistance, been consistent in following up about 

call-in issues, or timely alerted Smasal and the County to her inability to make 

particular calls, if she was truly unable to do so at a given time. The record 

demonstrates that there were a number of ways that Janine could have ensured that 

she attended most of her video calls, or that she at least consistently notified 
No. 2021AP1986

10

George’s foster parents and the County of the issues she was having. We 

therefore conclude that the evidence presented at trial supports the jury’s 

conclusion that the County’s failure to provide Janine with special equipment for 

virtual calls did not, under the totality of the circumstances, constitute a failure by 

the County to make a reasonable effort to provide her with court-ordered services. 

¶21 Next, Janine argues that the County failed to provide her with 

assistance in finding housing. She asserts that despite the requirement that she 

find safe housing for George, the only actions taken by the County were to ensure 

that she had received a voucher for housing. In addition, Janine contends

Smasal’s testimony that Janine only failed to meet this condition because 

“[Smasal] believe[d] she didn’t put forth the effort” was controverted by the 

housing coordinator’s testimony. We disagree that the evidence was insufficient 

for the jury to conclude that the County made a reasonable effort to assist Janine in 

finding adequate housing.

¶22 Smasal testified that Janine had received a housing voucher through 

the Chippewa County Housing Authority (CCHA).5 Smasal said she had 

contacted Janine’s housing authority worker at the CCHA to ensure that Janine’s 

housing voucher was still valid. In addition, Janine’s probation agent testified that 

in July 2019, Janine had been offered a place to live at the Hope House, a facility 

associated with Chippewa County’s recovery court. The agent explained that 

 

5

 Successful applicants to a CCHA housing program receive a “voucher” for housing. A 

housing voucher can be redeemed by a program participant to have the program pay a portion of 

rental costs. The housing voucher is valid for sixty days, unless an extension is requested and 

approved. By ensuring that Janine’s housing voucher was still valid, Smasal effectively ensured 

that Janine was still an eligible participant in the housing program and able to obtain housing 

through the program to which Smasal had referred her.
No. 2021AP1986

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recovery court is a program associated with the court system that helps individuals 

with addiction issues. The agent further explained that the Hope House was a 

“stable place to ... maintain sobriety,” but that Janine had turned down the offer to 

stay there. The agent testified that this refusal was likely because George could 

not have stayed with Janine at the Hope House if she had regained custody of 

him.6 However, the agent also testified that the facility was “transitional” and that 

individuals generally only stayed there during recovery before transitioning to 

permanent housing. 

¶23 A housing specialist with the CCHA, Kelly Begley, also testified 

regarding the process of obtaining housing through that program. She explained 

that people apply to the CCHA program, are placed on a waiting list, and when 

they are approved, they receive a voucher from the program that is good for sixty 

days. Then, it is the program participant’s responsibility to find housing, after 

which the program assists them in making payments. Begley testified that Janine 

successfully obtained housing using a voucher in May 2019. Begley testified, 

however, that Janine was evicted in June 2019 for engaging in criminal activity.

Janine reapplied to the program in December 2019, and she received another 

voucher in November 2020 but was again unable to find suitable housing. Begley 

testified that Janine requested extensions to the eligibility period for her housing 

voucher when necessary, and she had been looking for housing while her voucher 

was eligible. Begley further testified that Janine also applied for Section 8

 

6

 Janine later testified at trial that she turned down the offer to stay at the Hope House 

because she “was not a resident of Chippewa County” and therefore “was not eligible” to stay 

there. She provided this same justification for not participating in recovery court. To the extent 

Janine means to raise this argument again on appeal, the jury was entitled to find the probation 

agent’s description of Janine’s eligibility for housing programs more credible than Janine’s 

claims.
No. 2021AP1986

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housing, the second of Chippewa County’s two housing programs. On her first 

application in March 2020, Janine failed to provide required documentation and 

was thus not approved. On her second application in August 2020, Janine was 

successfully placed on the waiting list. No further facts were elicited regarding 

Section 8 housing at trial. 

¶24 In addition, and notably, Janine does not suggest anything that the 

County could have done differently in assisting her in finding housing, nor does 

she assert that she asked for more assistance and did not receive it. Furthermore,

the trial testimony also suggests that Janine was evicted from housing she had 

obtained due to her engaging in criminal activity, and that part of Janine’s problem 

establishing stable housing may have been that eviction, among other factors. 

This contextualizes the County’s ability to assist Janine in finding appropriate 

housing. 

¶25 Based on the testimony at trial, we determine that credible evidence 

supported the jury’s conclusion that the County made a reasonable effort to help 

Janine find housing. In particular, Smasal ensured that Janine had an active 

voucher to help pay for any housing that she found. Based on the testimony, it is 

evident that the main problem was not with the CCHA’s program failing to offer 

to pay for Janine’s housing, but with Janine finding suitable housing with which to 

use a voucher. While we acknowledge that Janine made efforts to apply to the 

housing program and for extensions of her eligibility, the County also made a 

reasonable effort to assist her.

¶26 Janine next argues that the County failed to assist her in arranging 

transportation to visits, treatment services, and drug screenings. She claims 

Smasal’s testimony that the County did not provide her with transportation 
No. 2021AP1986

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because she could get a ride from a friend has no basis, and she points to several 

recent TPR cases where parents were provided with transportation—asserting that 

the County should have done the same here. 

¶27 Janine misstates the trial record. Smasal did not testify that she 

declined to arrange transportation for Janine simply because she thought that 

Janine could get a ride from her friend; instead, she highlighted several ways in 

which she helped facilitate Janine’s transportation. Smasal testified that Janine 

had access to a medical transport service provided by the State, which required 

Janine to call twenty-four hours in advance to receive transportation. Although 

this solution would not work for Janine’s periodic random drug screenings (as they 

occurred with less than twenty-four hours’ notice), it was available for the 

remainder of her scheduled appointments. 

¶28 Similarly, Janine’s psychotherapist at the Transitions psychiatric 

care program, Victoria Zwiefelhofer, testified that while Janine had attendance 

problems, medical transportation services were available to Janine. Janine 

testified at trial that although she attempted to use this service, “[m]ost of the time

they didn’t show up. That’s why I didn’t make ... so many days.” Although the 

jury was ultimately entitled to determine whether this excuse was credible, even if 

it were true, Smasal provided several more examples of accommodations that the 

County made to assist Janine with her transportation to services. 

¶29 In particular, Smasal testified that she provided Janine with a gas 

card on one occasion after Janine drove a car to their visit. On another occasion, 

Smasal performed a drug test based on Janine’s hair sample instead of another 

form of testing, so that Smasal could conduct one test for the previous three-month 

period, instead of needing to arrange tests requiring Janine to travel every two 
No. 2021AP1986

14

weeks. In addition, Smasal testified that George was actually moved to a different 

foster family in November 2019, in part so that he would live closer to where 

Janine resided. Furthermore, Smasal testified that she drove to visit Janine herself 

to conduct drug tests on nine or ten occasions because she knew that Janine 

sometimes had transportation difficulties. 

¶30 Given these various attempts by the County to facilitate Janine’s 

travel, we conclude there was credible evidence presented at trial supporting the 

jury’s conclusion that the County made a reasonable effort to assist Janine with 

transportation in order to allow her to attend services and visits, so as to comply

with her court-ordered conditions. 

¶31 Finally, we note that for all of Janine’s arguments regarding the 

sufficiency of the evidence, the jury was presented with the relevant facts, and it 

was given the opportunity to assess whether the County’s efforts to provide 

services were sufficient under the circumstances. The jury had the opportunity to 

hear Janine’s explanations at trial, assess her credibility, and then determine 

whether the County’s efforts met the statutory standard. In addition, the evidence 

at trial showed that Janine was provided various assistance relating to other 

court-ordered conditions about which she does not specifically raise an argument

on appeal, including referrals and follow-ups for group counseling, intensive 

outpatient treatment, and recovery court for drug and alcohol dependency. 

¶32 Even if the jury thought that the County could have done more 

regarding certain aspects of Janine’s court-ordered conditions, it was entitled to 

assess the conditions and testimony as a whole to conclude that, ultimately, the 

County made a reasonable effort to assist Janine in meeting those conditions

pursuant to WIS. STAT. § 48.415(2)(a)2.a.-b. For the reasons discussed above, and 
No. 2021AP1986

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having reviewed the entire trial transcript, we conclude that, taken in the light 

most favorable to the jury’s verdict, credible evidence supported the jury’s 

determination that the County made a reasonable effort to provide the services 

ordered by the circuit court.

2. Ineffective Assistance

¶33 Janine next argues that her trial counsel was constitutionally 

ineffective for failing to object at several key points during her trial. A TPR 

respondent has the right to effective assistance of counsel, as that right is outlined 

in Strickland v. Washington, 466 U.S. 668 (1984). See A.S. v. State, 168 Wis. 2d 

995, 1004-05, 485 N.W.2d 52 (1992). On appeal, we uphold the circuit court’s 

factual findings as to counsel’s conduct unless those findings are clearly 

erroneous, but we decide de novo whether that conduct constitutes ineffective 

assistance. Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 710-11, 530 N.W.2d 

34 (Ct. App. 1995).

¶34 To establish ineffective assistance of counsel warranting reversal of 

a TPR order, the respondent parent must show that counsel’s performance was 

deficient and that the deficient performance was prejudicial. A.S., 168 Wis. 2d at 

1005. To establish deficient performance, a parent must show that trial counsel’s 

performance fell below an objective standard of reasonableness. State v. 

Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904 N.W.2d 93. There is a strong

presumption that trial counsel’s conduct “falls within the wide range of reasonable 

professional assistance.” Id. (citation omitted). In addition, “[c]ounsel’s decisions 

in choosing a trial strategy are to be given great deference.” Id. (alteration in 

original) (citation omitted). In fact, “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually 
No. 2021AP1986

16

unchallengeable” on appeal. Strickland, 466 U.S. at 690. Deficient performance 

is prejudicial where “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. 

 I. GAL’s Opening Statement

¶35 First, Janine argues that her attorney was ineffective for failing to 

object to the GAL’s opening statement, claiming it improperly focused on the case 

being a first step toward giving George “permanence.” Janine correctly notes that 

this consideration is only proper for the disposition phase of a TPR proceeding,

not the grounds phase. See WIS. STAT. § 48.426(3)(f) (Among the circuit court’s 

considerations at the disposition phase is “[w]hether the child will be able to enter 

into a more stable and permanent family relationship as a result of the 

termination.”). In particular, Janine asserts that the GAL’s statement created an 

unreasonable risk that the jury would improperly consider George’s best interests

during the grounds phase instead of focusing on Janine’s parental rights. We 

disagree that the GAL’s statement created such a risk.

¶36 As noted, Janine is correct that George’s best interests are not at 

issue at the grounds phase of a TPR proceeding. See Steven V. v. Kelley H., 2004 

WI 47, ¶26, 271 Wis. 2d 1, 678 N.W.2d 856 (“The best interests of the child do 

not ‘prevail’ until the parent has been declared unfit after fact-finding by the court 

or jury at the grounds phase of the TPR proceeding.” (citation omitted)).

However, in the context of the entirety of the GAL’s opening statement, it is 

evident that the GAL’s reference to “permanence” did not direct the jury to 

consider George’s best interests instead of focusing on Janine’s parental rights. In 

full, the GAL’s opening statement reads:
No. 2021AP1986

17

[I will k]eep this brief. So I wanted to just reiterate that 

[George is] three years old. He’s been out of home for two 

years. This has been an ongoing case that’s been 

happening with a small child not being able to have an 

interaction properly with his mother for the majority of his 

life. 

This case comes down to having a first step to bringing him 

into a place where he can have some permanence and 

have—know where he belongs. So what we’re looking to 

do today is to have you look and see if there was actually 

an effort made to give him that permanence from his mom; 

that she should—she be looked at as not having the ability 

to complete those requirements that she had, or do you 

think that she should have been able to make those 

requirements by now, and is it fair to [George] that that 

hasn’t been done in two-thirds of his life, and should we be 

setting something in—at a point right now where we’re 

able to move forward and give him that permanence that he 

needs. Thank you.

¶37 Considering the GAL’s statement about “permanence” in context, it 

is evident the comments—a few of which were perhaps imprudent—were framed 

within the consideration of whether Janine had made an effort to meet 

court-ordered conditions so that George could be returned to her home. The 

GAL’s comments were not improper simply because they described George’s

out-of-home placement or general lack of permanence in his life to that point, and 

the GAL’s mentioning of George in some capacity is to be expected due to his role 

as George’s advocate. 

¶38 Importantly, the GAL neither directed the jury to consider George’s

best interests nor introduced language confusing the legal standards that the jury 

would ultimately need to evaluate. Instead, the GAL explicitly and properly 

directed the jury by explaining that “what we’re looking to do today” is to see if 

Janine made an effort to give George permanence and whether she “should have 

been able to make those requirements by now.” In this context, the focus of the 
No. 2021AP1986

18

permanence issue was whether Janine had attempted to meet the court-ordered 

conditions necessary to have George returned to her—not an abstract focus on 

George’s best interests. 

¶39 In sum, despite the GAL alerting the jury to George’s general need 

for permanence, this focus was within the framework of highlighting the 

importance of the jury’s assessment of whether Janine had made an effort to 

cooperate and meet the court-ordered conditions. The GAL’s short opening 

statement—one of three opening statements—did not create an unreasonable risk 

that the jury would improperly consider George’s best interests at this phase of the 

TPR proceedings. Accordingly, Janine’s attorney was not ineffective for failing to 

object to the GAL’s characterizations. 

¶40 Although Janine points out that the County stipulated to the fact that 

there was “no strategic reason” for Janine’s attorney not to object to the GAL’s 

opening statement, the County specifically qualified that it is “not saying that he 

performed deficiently.” Because we ultimately conclude that the GAL’s opening 

statement was not improper, whether Janine’s attorney had a strategic reason for 

not objecting to it does not alter our conclusion that his decision not to object was 

not an instance of deficient performance. And given that counsel’s performance 

relating to the GAL’s opening statement was not deficient, we need not address 

any of Janine’s arguments related to prejudice. See Strickland, 466 U.S. at 687.

 II. Smasal’s Testimony

¶41 Janine also argues that her trial attorney was ineffective for failing to 

object to portions of Smasal’s testimony. Janine claims that Smasal “usurped” the 

role of the jury in answering questions the jury was supposed to decide. 

Specifically, Janine takes issue with Smasal’s testimony that she had made a 
No. 2021AP1986

19

reasonable effort to provide Janine with services, that Janine had not met the 

conditions for return, and that George was a child in continuing need of protection 

or services. Janine claims that these points of testimony were not rationally based 

on Smasal’s own perceptions and they were not helpful to the jury’s understanding 

of witness testimony or the facts at issue. Accordingly, Janine claims that 

Smasal’s testimony was not within the permissible scope of a nonexpert opinion, 

as required by WIS. STAT. § 907.01. We again reject Janine’s arguments.

7

¶42 WISCONSIN STAT. § 907.01 permits opinion testimony by lay 

witnesses as long as it is: (1) rationally based on the perception of the witness;

(2) helpful to a clear understanding of the witness’s testimony or the determination 

of a fact in issue; and (3) not based on scientific, technical, or other specialized 

knowledge within the scope of a witness under WIS. STAT. § 907.02(1). Sec. 

907.01. Janine first argues that “Smasal’s perceptions at trial were shown to have 

been inaccurate,” pointing to Smasal’s defensive tone and arguing that Smasal’s

testimony about Janine’s efforts in obtaining housing was contradicted by another 

witness’s testimony. However, simply presenting testimony that conflicts with

that of another witness or speaking in a defensive tone does not amount to

Smasal’s testimony not being rationally based on her own perceptions. Whatever 

the ultimate merit of Smasal’s perceptions, as long as her testimony was rationally 

based upon them, it would be acceptable as evidence. Janine points to no 

 

7

 Janine further argues that Smasal’s testimony was cumulative, risked confusing the 

jury, and was prejudicial under WIS. STAT. § 904.03. However, Janine fails to develop this 

additional, single-sentence argument, and we therefore decline to address it. See State v. Pettit, 

171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues 

inadequately briefed.”).
No. 2021AP1986

20

additional evidence supporting her contention that Smasal testified as to matters 

beyond her personal knowledge, and we reject her argument.

¶43 Next, Janine claims that Smasal’s testimony was not helpful to the 

jury’s understanding of the facts at issue. Janine argues that Smasal’s opinion of 

her own work was “not necessary” to clarify any issues and that testifying to 

whether she had made a reasonable effort to provide Janine with services was a 

legal conclusion that should have been left to the jury. To the contrary, no witness

testimony could have been more helpful to the jury’s understanding of the facts in 

this case on the reasonable efforts issue than testimony from the County employee 

generally responsible for Janine’s case and for making a reasonable effort to assist 

her in meeting her court-ordered conditions. We agree with the circuit court’s 

reasoning at the postdisposition hearing that “Smasal was the best person to testify 

regarding her opinions on how the services were rendered and how [Janine]

responded to those services.” 

¶44 Regarding Janine’s claim that Smasal made improper legal 

conclusions in her testimony, counsel for the County asked Smasal a single time

whether she—not the County—had made “reasonable efforts” to help Janine 

achieve the court-ordered conditions, and whether she thought she could have 

done anything more. Smasal’s response to these questions was not testimony to an 

ultimate legal conclusion but, rather, was a social worker’s opinion of her own 

success in providing efforts to ensure that Janine met the relevant conditions. It

was appropriate evidence for the jury to consider when reaching its overall 

conclusion as to whether the County, as a whole, made a reasonable effort to 

provide Janine with assistance. 
No. 2021AP1986

21

¶45 For all of the above reasons, we reject Janine’s arguments that

Smasal’s testimony was improper. Her attorney was thus not deficient in failing to 

object to the challenged testimony.

8

 III. GAL’s Closing Statement

¶46 Janine next argues that her attorney was ineffective for failing to 

object to the GAL’s closing statement, alleging that portions of that argument 

were improper because they introduced new information to the jury not taken from 

the evidence presented at trial. Specifically, Janine argues the GAL informed the 

jury that Janine could have told the CHIPS court if she felt that certain conditions 

for return were impossible, and she was therefore responsible for any difficulties 

she had in meeting them. Janine further criticizes the GAL for telling the jury that 

Janine had informed the judge presiding over the CHIPS proceedings that she was 

eager to meet those conditions, and that she stated, “[L]et’s go and we can do it”—

a statement to which neither she nor any other witness testified at the TPR 

grounds-phase trial. 

¶47 The GAL, in his closing statement, generally discussed Janine’s drug 

use, her level of compliance with court-ordered conditions, and his position that 

the County made a reasonable effort to provide court-ordered services to Janine. 

In the introductory portion of the GAL’s closing statement—the portion with 

which Janine takes issue—the GAL stated:

 

8

 Janine again points to the County’s stipulation at the postdisposition hearing that 

counsel had “no strategic reason” not to object to Smasal’s testimony (but declining to stipulate to 

deficient performance). Because we conclude that Smasal’s testimony was not improper, that 

stipulation has no bearing on our conclusion that Janine’s counsel was not deficient here.
No. 2021AP1986

22

So there was a CHIPS hearing way back in August of 2019, 

and [Janine] had the list of conditions that she had to 

complete. 

Basically the judge goes over that with her and asks her if 

she’s able to complete those conditions, and she gives 

feedback, and if she says no, I can’t, then the judge talks 

with her and figures out if there’s some way they can adjust 

those conditions that can meet her needs, but she didn’t 

raise concerns at that time that she couldn’t meet the

conditions. She pled to the CHIPS and said, you know,

let’s go and we can do it.

In this appeal, the GAL asserts that these statements were not improper, arguing 

that after our supreme court’s holding in Kenosha County DHS v. Jodie W., 2006 

WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, circuit courts routinely conduct 

colloquies in CHIPS proceedings and ask parents questions to determine whether 

any conditions for return are impossible to meet. 

¶48 We disagree with the GAL’s contention that simply because 

colloquies about the possibility of meeting conditions are commonly made, we can 

assume that such a colloquy was provided in the CHIPS proceedings at issue here, 

or that Janine indicated to the CHIPS court that she had no problems in meeting 

the conditions for return. In looking to Janine’s testimony at trial, however, we 

can determine that a few key events occurred in the CHIPS proceedings. First, 

although Janine seemed unsure which hearings she had attended, she confirmed 

that she did attend a CHIPS hearing. She further confirmed that she thought the 

court ordered her to comply with conditions “at every hearing,” and that there 

were reviews to determine what progress had been made on her conditions and to 

see what help she needed, although Janine claimed that “nobody was offering me 

help.” 
No. 2021AP1986

23

¶49 When Janine was asked at the TPR trial, “[w]hen the court ordered 

those conditions for you to follow, did you feel any of those conditions were 

unreasonable or was an unrealistic expectation of you to meet those conditions,” 

she responded:

I guess during COVID, yes, because I had been signed up 

for them in December of 2019, and then further down the 

road, it was like February-ish, April-ish, and they said they 

called me back, and like the parenting one, the TREM 

group one, and the intensive IOP said that at this time it’d 

just be further on down the road till they figured out what 

they were going to do.

But there wasn’t going to be face-to-face meetings at that 

time, and they had—it’d just be like, they would contact me 

at a later date when they started them, and then that was 

Zoom, and that was a couple months later—well, more like 

five months later that I finally got in.

¶50 At no point in Janine’s testimony did she confirm that she had been 

asked by the CHIPS court if she felt able to complete her conditions or that she 

told the court “let’s go and we can do it,” or even something equivalent.9 We can

only determine that Janine attended a CHIPS hearing, that she had been advised of 

the conditions required for the return of her child and the possible consequences if 

she did not, and that she had signed the notice form concerning the grounds for her 

TPR. We recognize that the GAL might have been explaining the general process 

involved in a CHIPS hearing, and by stating Janine “pled to the CHIPS and said, 

you know, let’s go and we can do it,” he may have been referring to what Janine’s

 

9

 Although Janine’s statement that she encountered problems with the court-ordered 

conditions during the COVID-19 pandemic suggests that she did not have problems with the 

feasibility of the conditions at the original CHIPS dispositional hearing in 2019, a transcript of 

that hearing is not in the record. Accordingly, we cannot conclude as such.
No. 2021AP1986

24

actions in pleading to CHIPS suggested or inferred, instead of a direct quote that 

she made. 

¶51 Still, we conclude that the GAL’s short characterization suggests the 

existence of a specific statement by Janine that is not supported by any evidence at 

the trial in this TPR proceeding. Such an argument was improper at closing, either 

because it incorrectly stated the facts testified to at trial, or because it introduced 

new evidence in the GAL’s closing statement that had not been introduced during 

trial.

¶52 Although there may be strategic reasons not to object during closing 

argument, here the County directly stipulated that Janine’s attorney had “no 

strategic reason why he didn’t object.” We therefore conclude that Janine’s 

attorney was deficient for failing to object to the GAL’s statement. We also 

conclude, however, that this deficiency did not result in prejudice to Janine, and 

Janine’s attorney was therefore not constitutionally ineffective. See Strickland, 

466 U.S. at 692. Ultimately, the GAL’s closing statement, one of several given at 

trial, discussed the evidence at issue very briefly, and no exceptional emphasis was 

placed on the newly introduced evidence. Instead, the majority of the GAL’s 

closing statement focused on Janine’s drug use and the efforts she made in 

meeting the court-ordered conditions. The brief nature of the improper comment 

in relation to the overall trial—at which significant evidence was presented 

supporting the County’s position—renders it improbable that the improper 

comment prejudiced Janine.

¶53 In addition, the circuit court instructed the jury at the outset of trial

that “[r]emarks of attorneys are not evidence. If any remarks suggest certain facts 

not in evidence, disregard the suggestion.” We presume that jurors follow the 
No. 2021AP1986

25

instructions given by the court. State v. Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d 

386, 906 N.W.2d 158. This instruction reduces the chances that Janine’s counsel’s 

failure to object to the GAL’s statement was prejudicial. Ultimately, given the 

minimal impact that this brief characterization had on the entire trial, and given the 

court’s proper jury instruction, we conclude that counsel’s failure to object to the 

GAL’s statement did not prejudice Janine. 

By the Court.—Orders affirmed.

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

RULE 809.23(1)(b)4.