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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                  This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2011
A party may file with the Supreme Court a
A. John Voelker                                                                                                     petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                    Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                    and RULE 809.62.
                                                                                                                    Cir. Ct. No.   2010TP34
Appeal No.                                                       2011AP1659
STATE OF WISCONSIN                                                                                                  IN COURT OF APPEALS
DISTRICT IV
IN RE THE TERMINATION OF PARENTAL RIGHTS TO KAVON S.,
A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
JOHNNY S.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Dane County:   AMY
SMITH, Judge.   Affirmed.




No.   2011AP1659
¶1                                                                                                  VERGERONT,  J.1    Johnny  S.  appeals  the  order  terminating  his
parental rights to Kavon S. and the  order  denying postdisposition relief.    He
contends he is entitled to a new trial on two grounds: (1) his constitutional right to
a fair trial was violated because he was not able to meaningfully participate in the
jury trial; and  (2) he was denied effective assistance of counsel.   We conclude
Johnny  was  able  to  meaningfully  participate  in  the  trial  and  did  not  receive
ineffective assistance of counsel.   Accordingly, we affirm the order terminating his
parental rights to his son and the circuit court’s order denying his postdisposition
motion for a new trial.
BACKGROUND
¶2                                                                                                  On March 29, 2010, Dane County Department of Human Services
(the Department) filed a petition to terminate the parental rights (TPR) of Johnny
S. to his son, Kavon S.   The petition alleged two grounds for termination of his
parental rights: abandonment under WIS. STAT. § 48.415(1) and failure to assume
parental responsibility under WIS. STAT. § 48.415(6).   Johnny was an inmate at the
Dixon  Correctional  Center  in  Dixon,  Illinois,  during  the  course  of  the  TPR
proceedings.
¶3                                                                                                  The State Public Defenders Office appointed counsel for Johnny.
Johnny appeared by telephone at seven pretrial hearings.   He did not appear by
phone or in person at three hearings; however, his counsel appeared at these.
1  This appeal is decided by one judge pursuant to WIS. STAT.  § 752.31(2)(e) and (3)
(2009-10).   All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
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No.   2011AP1659
¶4                                                                                        Johnny appeared by telephone at his two-day jury trial.   The jury
found that Johnny had failed to assume parental responsibility for Kavon and that
Johnny  had  abandoned  Kavon.    Johnny  again  appeared  by  telephone  at  the
subsequent disposition hearing, after which the court issued an order terminating
Johnny’s parental rights.
¶5                                                                                        Johnny filed a notice of appeal asserting that he is entitled to a new
trial because he was denied the right to meaningfully participate in the trial and
because he received ineffective assistance of counsel.   On Johnny’s motion, this
court remanded the matter for an evidentiary hearing on his postdisposition motion
for a new trial.   Johnny appeared by videoconference at the hearing.   The circuit
court heard testimony from Johnny, Johnny’s trial counsel, and the attorney who
represented Johnny before trial counsel took over Johnny’s case.   The circuit court
determined that Johnny had not been denied the right to meaningfully participate
in  the  trial  and  that  trial  counsel’s  representation  of  Johnny  had  not  been
ineffective.   Accordingly, the circuit court denied Johnny’s motion for a new trial.
DISCUSSION
¶6                                                                                        On appeal Johnny contends the circuit court erred in concluding he
was not entitled to a new trial.   He asserts he was denied the right to meaningfully
participate in the trial because he was required to participate by telephone, he
could not hear what was being said during trial, and he was not given enough time
to speak with his attorney during trial.   He also asserts he received ineffective
assistance of counsel because trial counsel did not arrange for him to appear by
videoconference throughout the TPR proceedings.   The Department responds that
the circuit court correctly determined that Johnny was not denied the right to
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No.   2011AP1659
meaningfully participate in the trial and did not receive ineffective assistance of
counsel.
I.                                                                                           Meaningful Participation in Trial
¶7                                                                                           Johnny contends he was not able to meaningfully participate at the
trial for three reasons.   First, he appeared by telephone, not videoconference, and
he did not waive his right to appear by videoconference.   Second, he could not
hear  what  was  being  said  during  trial.     Third,  he  was  not  given  enough
opportunities to speak with his attorney.   In the following paragraphs, we address
each contention and conclude Johnny’s right to meaningfully participate in the
trial was not violated on any of these grounds.
¶8                                                                                           The respondent in a TPR case has a right to meaningfully participate
in the proceedings.   Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530
N.W.2d 34 (Ct. App. 1995) (citation omitted).   Whether a respondent in a TPR
proceeding can meaningfully participate without being physically present depends
on the circumstances of each case.   Id. at 701-02.   Whether participation has been
“meaningful” is a constitutional fact subject to our independent review.   State v.
Lavelle W., 2005 WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698 (citation
omitted).   However, we defer to the circuit court’s factual findings on historical
facts unless they are clearly erroneous.   WIS. STAT. § 805.17(2); Waukesha Cnty.
Dep’t of Health & Human Servs. v. Teodoro E.,  2008 WI App  16,  ¶10,  307
Wis. 2d 372, 745 N.W.2d 701 (citation omitted).
¶9                                                                                           We first address Johnny’s argument on videoconferencing.  Johnny’s
trial  counsel  testified  at  the  evidentiary  hearing  on  remand  that,  for  tactical
reasons,  he  had  advised  Johnny  to  appear  via  telephone.    Trial  counsel  also
testified that he and Johnny discussed whether Johnny should appear by telephone
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No.   2011AP1659
or videoconference, and that Johnny chose to appear by telephone.    Johnny’s
testimony contradicted the testimony of his counsel.   Johnny testified that he had
always requested videoconference.
¶10    The circuit court assessed trial counsel’s credibility and determined
that  counsel’s  testimony  was  credible  based  upon  his  demeanor  during  his
testimony, as well as his lack of any motive to falsify information and the possible
professional  implications  for  doing  so.    The  circuit  court  also  assessed  the
credibility of Johnny and found that Johnny was not credible based upon his past
criminal convictions, his direct interest in the outcome of the proceedings, the
contradiction between certain portions of Johnny’s testimony and other testimony
the court found credible, and other portions of Johnny’s testimony the court found
implausible.   Therefore, the circuit court accepted trial counsel’s testimony and
found that Johnny had chosen to appear by telephone.   Based on this finding, the
court concluded he waived his right to appear by videoconference.
¶11    When a circuit court sits as a fact finder, it is the circuit court’s role
to assess the credibility of witnesses, Fidelity & Deposit Co. v. First National
Bank of Kenosha, 98 Wis. 2d 474, 485, 297 N.W.2d 46 (Ct. App. 1980), and the
weight to be given to each witness’s testimony, Milbauer v. Transport Employe’s
Mutual Benefit Society, 56 Wis. 2d 860, 865, 203 N.W.2d 135 (1973).   We will
not overrule a circuit court’s credibility determination absent a finding that it is
“inherently or patently incredible,” or  “in conflict with the uniform course of
nature….”   Nicholas C.L. v. Julie R.L., 2006 WI App 119, ¶23, 293 Wis. 2d 819,
719 N.W.2d 508 (citation omitted).
¶12    Here, the circuit court carefully considered each witness’s testimony
and explained its credibility assessment.   The court’s credibility determinations are
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No.   2011AP1659
not implausible and are supported by the record.   We therefore accept the circuit
court’s factual determination that Johnny chose to appear by telephone as not
clearly erroneous.   Based on this factual determination, we agree with the circuit
court that Johnny waived any right to appear by videoconference.
¶13    We  next  address  Johnny’s  contention  that  he  was  unable  to
meaningfully participate because he could not hear what was being said during
trial.
¶14    The circuit court found that each time Johnny could not hear, he
interrupted the proceedings and asserted that he wanted a question repeated.   This
finding  is supported  by the  record.    The  record  shows that,  at  various times
throughout the proceedings, Johnny notified the court that he was unable to hear
what was being said in the courtroom and the statements that Johnny said he could
not hear were then repeated.   For example, during assistant corporation counsel’s
opening statement, Johnny interrupted to inform the court that he could not hear
counsel’s  statement.    The  court  reminded  counsel  to  be  more  aware  of  his
microphone, and counsel asked Johnny if he could now hear him.   After Johnny
answered  that  he  could,  counsel  repeated  the  sentence  he  had  said  prior  to
Johnny’s interruption.
¶15    There was no evidence on the record regarding Johnny’s inability to
hear statements during trial other than Johnny’s testimony.    The circuit court
assessed Johnny’s credibility and concluded he was not credible for reasons we
have already noted.   There is no basis for disturbing this credibility determination.
¶16    Finally,  we  address  Johnny’s  contention  that  he  was  not  given
sufficient opportunities throughout the trial to speak with his attorney.   The circuit
court found that he was, and we conclude this finding is supported by the record.
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No.   2011AP1659
¶17    The record reflects that, during breaks throughout the proceedings,
Johnny was given opportunities to speak with his trial counsel.    Trial counsel
testified  that  the  amount  of  time  provided  to  him  was  sufficient  for  him  to
communicate with Johnny.   The court found that the testimony of trial counsel was
credible for reasons we have already explained.    In addition, after stating that
Johnny had interrupted the court multiple times when he had trouble hearing what
was being said in the courtroom, the circuit court found that, if Johnny wanted to
speak with his attorney, he would have also interrupted the court to indicate this.
This finding is not clearly erroneous.
¶18    Johnny contends that the circumstances in this case are similar to
those in Lavelle W., 288 Wis. 2d 504.   We disagree.   In Lavelle W., we held that a
father who appeared by telephone in a TPR case did not have the opportunity to
meaningfully participate  in  his  trial  because  of  the  lack  of  a  good  telephone
connection during trial.    Id.,  ¶9.    The father’s ability to hear the proceedings
“faded in and out, and, at least at one point, was temporarily interrupted by static.”
Id.,  ¶8.   In contrast, as we have already explained, the circuit court found that
Johnny was generally able to hear what was said in the courtroom and, when he
said he did not hear something, the statement was repeated to ensure he heard the
entire statement.
II.                                                                                        Ineffective Assistance of Counsel
¶19    Johnny  contends  he  was  denied  his  Sixth  Amendment  right  to
effective assistance of counsel because trial counsel did not arrange for him to
appear  by  videoconference  instead  of  by  telephone  throughout  the  TPR
proceedings.   Johnny also contends that the circuit court’s finding that Johnny’s
testimony was not credible was clearly erroneous.
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No.   2011AP1659
¶20    Whether trial counsel provided ineffective assistance of counsel is a
mixed question of law and fact.   State v. Guerard, 2004 WI 85, ¶19, 273 Wis. 2d
250,  682 N.W.2d  12  (citation omitted).    We uphold the circuit court’s factual
findings unless they are clearly erroneous.    Rhonda R.D.,  191 Wis. 2d at  710
(citation  omitted).                                                                    However,  whether  the  attorney’s  conduct  constituted
ineffective assistance is a question of law, which we decide de novo.   Id.   To
prevail on his ineffective assistance of counsel claim, Johnny must establish that
his trial counsel’s performance was deficient and that this deficient performance
prejudiced his defense.   Id. at 710-11 (citation omitted).
¶21    We conclude trial counsel’s performance was not deficient.    The
circuit court credited trial counsel’s testimony that he discussed appearance by
videoconference versus appearance by telephone with Johnny, that he advised
Johnny for tactical reasons to appear by telephone, and that Johnny chose this
option.   We have already concluded that the circuit court’s credibility assessments
of Johnny and his counsel are not clearly erroneous.   Johnny does not explain why,
accepting the circuit court’s factual findings, there was any deficiency in counsel’s
performance.   Accordingly, we reject his argument that he was denied effective
assistance of counsel on the basis that his trial counsel did not arrange for him to
appear by videoconference.
CONCLUSION
¶22    We affirm the order terminating Johnny’s parental rights and the
order denying his postdisposition motion for a new trial.
By the Court.—Orders affirmed.
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No.   2011AP1659
                   This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)          (b)4.
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