### COURT OF APPEALS DECISION DATED AND FILED May 25, 2023

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1835 Cir. Ct. No. 2020TP3 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

I N RE THE TERMINATION OF PARENTAL RIGHTS TO C.A. K., A PERSON UNDER THE AGE OF 18:

C OLUMBIA C OUNTY D EPARTMENT OF H EALTH AND H UMAN S ERVICES ,
P ETITIONER - R ESPONDENT ,

V . K.D. K.,

R ESPONDENT - A PPELLANT .

APPEAL from orders of the circuit court for Columbia County:
JAMES EVENSON , Reserve Judge. Affirmed

.No. 2022AP1835

2 ¶ 1 GRAHAM, J. 1 K.D.K. appeals an order terminating his parental rights to his son, C.A.K., and an order denying his postdisposition motion for a new trial. I reject K.D.K.’s argu ments and affirm both orders.

BACKGROUND

¶ 2 In 2017, when C.A.K. was approximately five months old, he was removed from his mother’s home because both of his parents were incarcerated and unable to provide care fo r him. There were also concerns about both parents’ drug

use. The circuit court, Judge Andrew Voigt presiding, determined that C.A.K. was a child in need of protection or services (“CHIPS”), and the court entered a dispositional order that identified certain conditions that each parent would have to satisfy for C.A.K

. to be returned to their homes

. ¶ 3 In February 2020, the Columbia County Department of Health and Human Services (the Department) pet itioned for the termination of both parents’ rights , and the case was assigned to Judge Voigt

. C.A.K.’s mother has not appealed the order terminating her parental rights, and I discuss her case only to the extent necessary to address the issues K.D.K. raises on appeal.

¶ 4 The Department’s petition alleged three grounds for terminating
K.D.K. ’s parental rights: that K.D.K. failed to v isit or communicate with C.A.K. during periods in which C.A.K. had been placed outside of K.D.K.’s home , W IS

. S TAT

. § 48.415(1)(a)2. ( referred to as “abandonment” ) ; that C.A.K. was in continuing n eed of protectio n and services and K.D.K. failed to meet the conditions
estab lished for his safe return to K.D.K.’s home , § 48.415(2)(a)3. (referred to as

1 This appeal is decided by one judge pursuant to W IS . S TAT . § 752.31(2)(e) (2021

- 22). All references to the Wisconsin Statutes are to the 2021

- 22 version

.No. 2022AP1835

3 “continuing CHIPS”) ; and that K.D.K. did not have a substantial parental relationship with C.A.K. , § 48.415(6)(a) (referred to as “failure to assume parental responsibility”) . K.D.K. denied the allegations, waived the statutory time limits, and requested a jury trial on the grounds phase of the termination of parental rights proceeding

. T he jury trial was se t to be gin on January 4, 2022.

¶ 5 On December 21, 2021, the clerk of the circuit court sent an amended
noti ce of hearing indicating that , due to an unexpected calendar conflict, a reserve judge would preside over the scheduled jury trial , rather than Judge Voigt . C.A.K.’s mother requested a substitution of judge and , on December 29, 2021, the court issued an amended notice indicating that a different judge, Judge James Evenson , would preside over the jury trial. The notice provided: “Upon the r ec e ipt of the Substitution Request filed by [C.A.K.’s mother], Judge James Evenson, Reserve Judge, has been assigned to h ear the trial on the original [ly] schedul ed date/time.”

¶ 6 The next day, and four days before the jury trial was sched uled to commence, C.A.K.’s mother requested an adjournment . She asked that the jury trial be adjourned until such time as Judge Voigt would be available to preside because , among other things, “he [had] been presiding over the matter throughout the pendency of the case ... [and] there is a stronger connection to the presiding judge.” The Departme nt joined the mother’s request . The guardian ad litem objected to an adjournment, arguing , among oth er things, that C.A.K. h ad not lived with his parent s for more than four years and “[t]o continue to delay these proceedings is to continue to deny [C.A.K.] the permanence he deserves.” The circuit court denied the request ed adjournment.

¶ 7 Judge Evenson presided over the three

- day jury trial , which
commenced as scheduled on January 4, 2022

. The social worker who was employedNo. 2022AP1835

4 by the Department and had been assigned to C.A.K.’s case testified at the trial.
K.D.K. also testified.

¶ 8 One of K.D.K.’s primary defenses was that it had been difficult for him to visit and communicate with C.A.K., to satisfy the conditions of return, and to assume parental responsibilities because he had been incarcerated on and off, and
he had su ffered a series of injuries that required medical attent ion and several surgeries. K.D.K. asked the cou rt to include an “ impossibility to perform” question on the special verdict, which would have asked: “Was it impossible for [K.D.K.] to
meet all the co nditions established for the safe return of [C.A.K.] to [K.D.K.’s]
home ? ” The court declined to add that question to the special verdict

. ¶ 9 At the conclusion of the trial, t he jury found that the Department met
its burden on all three grounds to terminate K.D.K.’s parental rights. Specifically , regarding abandonment , the jury found that K.D.K. failed to visit or communicate with C.A.K. for three months or longer during the time that C.A.K. was placed outside the home, and that K.D.K. d id not have good cause for failing to visit with C.A.K. during that period. Regarding the continuing CHIPS ground, the jury found
that the Department made a reasonable effort to provide court

- ordered services to
K.D.K. , but that K.D.K. failed to meet the conditions established for C.A.K.’s safe
return to the home. And f inally, on the failure to assume parental responsibility ground, the jury found that K.D.K. failed to assume pare ntal responsibility for
C.A.K.

¶ 10 Judge Evenson also presid ed over the disposition al hearing , held the following month , at the conclusion of which he granted the Department’s petition
to terminate K .D.K.’s parental rights

.No. 2022AP1835

5 ¶ 11 K.D.K. appealed the dispositional order

. He then filed a motion
pursuan t to W IS

. S TAT

. R ULE 809.107(6)(am), which asked this court to remand to
the circuit cou rt so that he could file a postdisposition motion. 2 We granted the motion, retained jurisdiction of the appeal, and remanded for the circuit court to hold a postdispos ition proceeding

. ¶ 12 On remand, K.D.K. filed a motion that requested a new trial on several grounds. Judge Evenson presided over the postdisposition hearing on J anuary 9, 2023, and K.D.K, trial counsel , and the Department’s social worker testified at the hearing

. The circuit court de nied the motion for a new trial, and K.D.K. appeals t he
order denying that motion as well.

¶ 13 Additional facts about t he evidence presented at the jury trial , the evidence prese nted at the postdisposition hearing, and the circuit court’s reasons for denying K.D.K.’ s motion for a new trial are summarized as n eeded in the discussion
below.

DISCUSSION

¶ 14 On appeal, K.D.K. contends that there is no evidence in the re cord showing that Judge Evens on was properly assigned to preside over the circuit court proceeding s , an d K.D.K. argues that the order terminating his parental rights is void
on that basis

. H e also argues that the circuit court erred by denying his r equest for a special verdict question regarding impossibility. Finally , he contends that trial

2 See W IS

. S TAT

. R ULE 809.107(6)( am) ( “ If the appellant intends to appeal on any ground that may require postjudgment fact

- finding, the appellant shall file a motion in the court of appeals

... raising the issue and requesting that the court of appeals retain jurisdiction over the appeal and
rema nd to the circuit cour t to hear and decide the issue

. ” )

.No. 2022AP1835

6 counsel was ineffective by fail ing to request a judicial substitution after learning that Judge Evenson would preside over the trial, and fail ing to obtain and presen t medical records at trial that would have substantiated the dates of K.D.K.’s surgeries

. 3 I address these arguments in turn.

I.

¶ 15 K.D.K.’s first and most prominent argument concerns Judge Evenson’s authority to preside over the disposit ional phase of the proceeding.

¶ 16 By way of background, K.D.K. ’s postdispo sition motion questioned whether Judge Evenson had been properly assigne d to th e proceeding pursuant to
W IS

. S TAT

. § 7 51.03 and SCR 70.23 . K.D.K. pointed out that t he record did not contain an application for a judic i al assignment form , which would have been signed by a court official, the chief judge, or the district court administrator. K.D.K. argued: “The lack of an official form that is usually used to document reassignment of cases in circuit courts rebuts the pre sumption of regularity.”

¶ 17 At the post disposition hearing, the circuit court asked K.D.K.’s attorney whether he intended to present any evidence related to the judicial assignment issue, and K.D.K.’s attorney indicated that he did not. Judge Evenson explained that he had not been assigned to the case pursuant to a case

- specific assignment, but had instea d been assigned pursuant to a general judicial assignment to cover Judge Voigt ’s entire calendar for a number of days while he was on an unplanned leave. Judge Evenson had the assignment order entered into the record.
The order was electronically signed by the d irector of s tate c ourts on behalf of the

3 K.D.K. also argued that trial counsel was ineffective for failing to sufficiently communicate with K.D.K. in prepar ing for trial, and for failing to request an adjournment of the trial date, but h e does not renew those arguments on appeal.No. 2022AP1835

7 c hief j ustice of the Wisconsin Supreme Court, and it was dated January 5, 2022 , which was the second day of the dispositional hearing

. ¶ 18 K.D.K. did not take issue with the date of the signe d assignment order during the post disposition hearing , nor did he ask any questions about whether the assignment had been made prior to the date of the assignment order, or how it had
been communicated to Judge Evens on . However, in his p ost

- hearing memora ndum to the circuit court, he argued that , because there was no evidence in the record to support Judge Evenson’s assignment until the second day of trial, “the presumption of regularity [had] not been established and

... the court lacked authority to rule

u pon the motion for adjournment and preside over the jury trial.” Accordingly, h e

a rgued, “ [t] he results of the jury trial and subsequent [disposition al order] are void.”

¶ 19 The circuit court rejected this argument. It determined that the facts , including the December 29 , 2021 notice that J udge Evenson would be presiding

over the jury trial, establish th at “the clerk of court, [Judge Evenson himself ], and
counsel for all parties were aware of the [assign] ment .” The court explained tha t the assignment process allows “for immediate assignment when needed ... on extremely sho rt notice,” with a “paper[] trail” that is documented at a later date. The

court determined that the assignment order “ was appropriate, even though it was
dated after the commencement of the trial and any pretrial proceedings.”

¶ 20 K.D.K. renews his argument ab out the propriety of Judge Evenson’s assign ment on appeal. He argues that neither the Department nor Judge Evenson
had shown that Judge Evenson w as properly assign ed under W IS

. S TAT

. § 751.03 or
SCR 70.23 , that the fact that the assign ment order was not signed until the second day of trial rebuts the presumption of regularity, and that the proceedings were void. I reject the argument for at least the following four reasons.No. 2022AP1835

8 ¶ 21 First, K.D.K. has not established a ny statuto ry violation. W IS CONSIN S TAT

. § 751.03(1) p rovides : “ T he chief justice of the supreme court may designate and assign reserve judges

... to serve temporarily in

... the circuit court for any county. While acting under a temporary assignment, an active or reserve justice or judge may exercise all the authority of the court to which he or she is assigned. ”
That is what occurred in this case. The statute does not set forth any specific process by which the assignment must be made, nor does it provide that the assignment must be documented in any particular way or by any particular date.

¶ 22 Second, to the extent that K.D.K. is arguing that there is no e vidence that the process used in this case complied with our supreme court’s rules of judicial administration, SCR 70.23 , that argument is a nonstarter. “[I]t is well established that this court is without authority to review administrative actions by the circuit
court” Petitioner v. Evans , 2018 WI App 53, ¶15, 383 Wis. 2d 669, 917 N.W.2d
218

. So, too, is this court without authority to review administra tive actions taken by the director of state courts or the chief justice of our supreme court

. See id. , ¶16.

¶ 23 Third , the cases K.D.K. relies on regarding the “ presumption of regularity ” have nothing to do with the proper method for makin g and documenting judicial assignments

. See State v. Haugen , 160 Wis. 494 , 497

- 98, 152 N.W. 176 ( 1915 ) ( considering whether the “presumption as to substantial compliance” that applies to courts of general jurisdiction also applies when evaluating whether the state tax commission properly exercised its statutory authority ); Howard v. Preston , 30 Wis. 2d 663 , 667

- 69, 142 N.W.2d 178 ( 1966 ) ( addressing an error made in the service of a summons and complaint , which is a requirement to obtain personal jurisdiction over a party )

.No. 2022AP1835

9 ¶ 24 Finally, K.D.K. cites no authority whatsoever for the proposition that an omission in the documentation of a judicial assignment

— and , to be clear, I do

not conclude that any omission occurred here

— c ould render t he proceedings void.

II.

¶ 25 K.D.K. also argues that the circuit court erred when it dec lined to include a question on the special verdict ask ing the jury whether it had been impossible for K.D .K. to perform the conditions of return set forth in the CHIPS dispositional order

. 4 The Depar tment distinguishes the facts of this case from the
facts of the leading case on this topic, Kenosha C n ty
. v. Jodie W. , 2006 WI 93, 293
Wis. 2d 530, 716 N.W.2d 845 , and it contends that the court properly exercised its
discretion in decl ining to include the question

. ¶ 26 Although I generally agree with the Department’s analysis, I reject K.D.K.’s argume nt for a more basic reason. Erroneous verdi ct questions are subjec t to a harmless error analysis; the question is whether it is clear beyond a reasonable doubt that a rational jury wou ld have reached the same result absent the error. See State v. Beamon , 2013 WI 47, ¶50, 347 Wis. 2d 559, 830 N.W.2 d 681. K.D.K. is
not entitled to a new trial if the failure to add the question to the special verdict was harmless

. ¶ 27 Here, t he special verdict question that K.D.K.’s counsel requested specifically pertained to the contin u ing CHIPS grou nd for termination of parental

4 Actually, in his appellate briefing, K.D.K. appears to be asserting that the error was the court’s failure to give a jury instruction about the impossibility defense. However, K.D.K.’s counsel never proposed that the court give any such instruction

— counsel’s request was limited to adding a question about impossibility to the special verdict . To the extent that K.D.K. is arguing on appeal that the court should have given an instruction to the jury about the im possibility defense, that argument is forfeited. W IS

. S TAT

. § 805.13(3); s ee also State v. Beamon , 2013 WI 47, ¶47, 3 47 Wis. 2d 559, 830 N.W.2d 681.No. 2022AP1835

10 rights. However, that was just o ne of the three grounds that the jury found to justify
the terminat ion of K.D.K.’s parental rights . K.D.K.’s counsel did not ask for an impossibility instruction or special verdict question r egarding the other two grounds

— abandonment and failure to assume parental responsibility . And on appeal, he does not attempt to explain why I should conclude that, had the jury been
asked to determine whether it was impossible for K.D.K. to perform the conditions of return, that question would have led the jury to reach different verdict s on the abandonment and failure to assume parental responsibility grounds. I therefore
conclude that, even if the court erred by declining to ask that question

— and , aga in,
I do not con clude that the court erred

— any such error would have be en harmless.

III.

¶ 28 The final issue is whether K.D.K.’s trial counsel was ineffective. K.D.K. argues that he was ineffective for two reasons, but I reject both arguments.
¶ 29 To demonstrate that trial counsel was ineffective, K.D.K. must establish that counsel’s performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington , 466 U.S. 668, 687 (1984).

“ Coun sel’s performance is constitutionally deficient [ only ] if it falls below an objective standard of reasonableness. ” State v. Thiel , 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. Counsel’s deficient performance is prejudicial if “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland , 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “ Whether a defendant was denied effective assistance of counsel presents a mixed question of law and fact.” State v. Breitzman , 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93No. 2022AP1835

11 A.

¶ 30 K.D.K. first argues that trial counsel was ineffective f or failing to request a judicial substitution. The circuit court concluded that counsel ’s performance was deficient because counsel had been unaware of K.D.K.’s statutory substitution right and did not advise K.D.K. of that right , and I agree with that

co nclusion

. However, I also agree with the court ’s conclusion that K.D.K. has not
shown tha t he was prejudiced by the omission

. ¶ 31 K.D.K. indicates that he had a strong preference for the trial to be presided over by Judge Voigt . He argues that, had counsel requested a substitution, it is possible that a substitute judge w ould not have been identified in time to preside
over the scheduled trial , and that there would have been no option but to adjourn the
trial until a later date, possibl y after Judge Voigt had returned from his leave of
absence . To the extent that this is an argument about prejudice , I reject it for two

reasons.
¶ 32 First, K.D.K.’s argument is highly speculative . A s the circuit court observed, “in all li kelihood,” another judge other th an Judge Voigt wo uld have been assigned to preside over the scheduled tri al.

¶ 33 Second, even assuming that a request for substitution would have ultimately resulted in Judge Voigt presiding over the jury tr ial, K.D.K. does not make any argument that “there is a reasonable probability that ... the result of the proceeding would have been differen t.” Strickland , 466 U.S. at 694. Indeed, K.D.K. tacitly acknowledges that he cannot demonstrate that the results of the proceeding would have been different.No. 2022AP1835

12 ¶ 34 Instead, K.D.K. appears to be arguing that he does not have to make that showing . He argues that K.D.K. was not able to exercise the right o f
substitution , which is an important “ procedural ri ght [] enshrined in the juvenile code, ” and that the “deprivation of a statutory right” is in itself enough to establish prejudice

. To the extent that K.D.K. means to argue that counsel’s error was per se prejudicial, he does not cite any authority for that position, which appears to be an incorrect statement of the law. See, e.g. , State v. Damaske , 212 Wis. 2d 169, 200

- 2 02, 567 N.W.2d 905 ( Ct. App. 1997) (rejecting a proposed “ per se rule ” that would
reli eve a defendant of t he burden to show prejudice in cases in which counsel’s deficiency results in the defendant failing to timely reque st a substitution of the assigned judge ).

B.

¶ 35 I now turn to K.D.K.’s second argument about counsel ’s
in effective ness

— that counsel failed to subpoena K.D.K.’s medical records, which resulted in them not being available for introduction as evidence during the trial. As mentioned, K.D.K. ’s primary defense was that it had been difficult to visit and communicate with C.A.K., to meet the conditions of return, and to assume parental responsibility as a result of K.D.K.’s on

- and

- off period s of incarceration and three major surgeries that occurred between 2017 a nd 2019

. He argues that the medical records would have bolstered this defense, and that counsel was ineffecti ve for failing to obtain them.

¶ 36 Trial counsel testified about this issue during the pos t disposit i on hearing as follows. Counse l considered obtaining “ medical records rel ating to three surgeries that [K.D.K.] testified about that occurred ... during the course of the CHIPS order.” However, after review ing the file more closely, couns e l “found thatNo. 2022AP1835

13 the surgeries were referred to in the [social worker’s] file,” which “corroborated those injuries in the same way that [K.D.K.] had described them.” Counsel determined that it would be possible to present evidence about how the s urgeries affected K.D.K’s “ability to communicate” through t he social w orker’s notes. Then,
d uring the jury trial, counsel introduced facts about K.D.K.’s medical issues and surgeries through the testimony of K.D.K. and the social worker, and the Department did not dispute any of th o se facts

. As K.D.K. acknowledg ed at the postdisposition hearing, “nobody questioned [him] or denied t hat [he] had [the] surgeries.”

¶ 37 On appeal, K.D.K. argues that the medical r ecords would have
bolstered his defense by providing “specific dates for K.D.K.’s medical p roblems during the term of the CHIPS order [that] neither he nor [the social worker] were able to provide at trial.” However, t he circuit court determined that counsel’s
pe rformance was not deficient and that K.D.K. was not preju diced , and I agree on
both counts.
¶ 38 As for deficiency, the circuit court determined that “[t]he failure of trial counsel to obtain the records was not ineffective and represented [counsel’s] strategic decision in how to get the evidence before the jury.” I agree. Counsel decided against seek ing out cumulative evidence a bout K.D.K.’s medical condition s and surgeries, and K.D.K. does not persuade me that this decision falls below an objective standard of reasonableness. Thiel , 264 Wis. 2d 571, ¶19. At best, K.D.K. refers to this decision as “less than optim um performance ,” but counsel’s performance need not be “optim um ” to be considered constitutionally effective. See State v. Shata , 2015 WI 74, ¶56, 364 Wis. 2d 63, 868 N.W.2d 93 (“[C ] ounsel’s performance need not be perfect, nor even very good, to be constitutionally
ad equate.” ( citation omitted)).No. 2022AP1835

14 ¶ 39 As for prejudice, K.D.K. argues that his testimony would have been “more effective” if he had access to the medical records because “[a] witness who can provide e xact dates is more credible than one who can only guess [about dates].”
W hether or not this is the case, I am not persuaded that the result of the trial would have been any different had counsel obtained the medical records . A s the circuit court explained, “ [ n ] one of the claims of injury or surger y or medical issues of [K.D.K.] were controverted, and in fact, [the claims ] were supported through the testimony of the social worker.” At trial, both the social worker and K.D.K. testified about his injuri es, and I see no reason to believe that the jury did not credit the ir undisputed testimony on this topic

.

By the Court.

— Orders affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)4

.