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COURT OF APPEALS
DECISION
NOTICE
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 10, 1998
A party may file with the Supreme Court a
                                                                                       Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                       Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                       of Wisconsin              STATS.
No.                                                                                    98-0517
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
DISTRICT IV
IN RE THE TERMINATION OF PARENTAL RIGHTS OF
ROSA L. C., A PERSON UNDER THE AGE OF 18:
DANE COUNTY,
PETITIONER-RESPONDENT,
V.
TOMAS D. C.,
RESPONDENT-APPELLANT.
APPEAL  from  orders  of  the  circuit  court  for  Dane  County:
GERALD C. NICHOL, Judge.  Affirmed.
DYKMAN, P.J.1    Tomas D.C. appeals from an order terminating his
parental rights to Rosa L.C. and an order denying his post-verdict motions.   He
contends that the trial court committed reversible error by introducing the guardian
1  This appeal is decided by one judge pursuant to § 752.31(e), STATS, and expedited
under RULE 809.17, STATS.




No. 98-0517
ad litem to the jury as the individual who represents the “best interests” of the
child.   We conclude that under the applicable statute and relevant case law, the use
of the term “best interests” in this context was not error.   Tomas also asserts that
he was denied effective assistance of trial counsel on several occasions.   However,
Tomas has failed to establish how the trial counsel’s performance was deficient
and prejudicial.  Accordingly, we affirm.
BACKGROUND
Tomas D.C. immigrated to the United States from Cuba in  1980.
His daughter, Rosa L.C., was born on March 18, 1992.   During much of Rosa’s
life, Tomas was incarcerated for various criminal offenses.    The last in-person
contact Tomas had with Rosa was in March 1995.   Tomas did not have contact
with his daughter again until May 1997, when he learned of her address and began
sending her letters and cards.
On April 14, 1997, the Dane County Department of Human Services
filed a petition to terminate Tomas’s parental rights to Rosa.2   The County initially
alleged in its petition that Rosa was a child in continuing need of protection or
services under § 48.415(2), STATS.   It later amended the petition to also allege that
Tomas had abandoned his child under § 48.415(1)(a)2.   At the pretrial conference,
the County indicated that it only intended to pursue abandonment as a ground for
termination.3
2  The mother’s parental rights were voluntarily terminated earlier.
3  The relevant provisions within § 48.415(1), STATS., read as follows:
(a)  Abandonment, which, subject to par.  (c), shall be
established by proving that:
(continued)
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No. 98-0517
On September 22, 1997, a jury found sufficient grounds to terminate
Tomas’s parental rights.   At a November 12, 1997 dispositional hearing, the court
entered an order terminating his parental rights.   Tomas appealed the order.   We
….
2.  The  child  has  been  placed,  or  continued  in  a
placement, outside the parent's home by a court order containing
the notice required by s. 48.356 (2) or 938.356 (2) and the parent
has failed to visit or communicate with the child for a period of 3
months or longer; …
….
(c)  Abandonment is not established under par. (a) 2. or
3. if the parent proves all of the following by a preponderance of
the evidence:
1.  That the parent had good cause for having failed to
visit with the child throughout the time period specified in par.
(a) 2. or 3., whichever is applicable.
2.  That the parent had good cause for having failed to
communicate with the child throughout the time period specified
in par. (a) 2. or 3., whichever is applicable.
3.  If  the  parent  proves  good  cause  under  subd.                               2.,
including good cause based on evidence that the child's age or
condition  would  have  rendered  any communication with  the
child meaningless, that one of the following occurred:
a.  The parent communicated about the child with the
person or persons who had physical custody of the child during
                                                                                     the  time  period  specified  in  par.         (a)                                      2.  or   3.,  whichever  is
applicable,  or,  if  par.                                                                                                    (a)   2.  is  applicable,  with  the  agency
responsible for the care of the child during the time period
specified in par. (a) 2.
b.  The  parent  had  good  cause  for  having  failed  to
communicate about the child with the person or persons who had
physical custody of the child or the agency responsible for the
care of the child throughout the time period specified in par. (a)
2. or 3., whichever is applicable.
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No. 98-0517
ultimately remanded the case to the trial court for a Machner4 hearing to address
various post-judgment matters.
On October 6, 1998, a Machner hearing was held.   At the hearing,
the trial court made findings and conclusions.   First, the court agreed that it may
have erred when it introduced the guardian ad litem as representing the  “best
interests” of Rosa; however, it concluded that the error was harmless.   Second, the
court reviewed and rejected each of Tomas’s assertions that his trial counsel was
deficient and prejudicial in his performance.    Tomas now appeals.
DISCUSSION
1.   Reversible Error
Tomas contends that the trial court committed reversible error when
it stated that the guardian ad litem represents the  “best” interests of the child.
Whether a trial court commits reversible error is a question of law, which we
review de novo.   See generally Berg v. Marine Trust, 141 Wis.2d 878, 887, 416
N.W.2d  643,  647  (Ct. App.  1987).   Before we can determine if the trial court
committed a reversible error, we must first determine whether the trial court erred.
In this case, the trial court determined at the Machner hearing that it erred when it
introduced of the guardian ad litem to the jury as the individual responsible for
“represent[ing] … the best interest of the child ….”
4  State v. Machner, 101 Wis.2d 79, 303 N.W.2d 633 (1981).
4




No. 98-0517
Section 48.235(3), STATS., sets out the duties and responsibilities of
a guardian ad litem appointed under Chapter 48, STATS.   Paragraph (3)(a) reads as
follows:
The guardian ad litem shall be an advocate for the
best interests of the person for whom the appointment is
made.   The guardian ad litem shall function independently,
in the same manner as an attorney for a party to the action,
and shall consider, but shall not be bound by, the wishes of
such person or the positions of others as to the best interests
of such person.   If the guardian ad litem determines that the
best interests of the person are substantially inconsistent
with the wishes of such person, the guardian ad litem shall
so inform the court and the court may appoint counsel to
represent that person.   The guardian ad litem has none of
the rights or duties of a general guardian.
(Emphasis added.)   The statute states that the guardian ad litem is responsible for
determining and advocating the best interests of the minor child.   Therefore, we
initially conclude that the trial court did not err in introducing the guardian ad
litem in the manner in which it did.
We find support for our conclusion in D.B v. Waukesha County
Human Serv. Dept., 153 Wis.2d 761, 451 N.W.2d 799 (Ct. App. 1989).   In D.B.,
we concluded that the trial court did not err when it introduced the guardian ad
litem to the jury as  “the attorney appointed by the court to represent the best
interests of [the child].”   Id. at 769, 451 N.W.2d at 802.   We stated that “such an
introduction is not only informative, it is desirable.”   Id. at 770, 451 N.W.2d at
802.   We therefore are satisfied that the trial court’s statement to the jury about of
the guardian ad litem was not erroneous.
Tomas argues that D.B. is inapplicable because, unlike in D.B., the
trial court in this case admitted that it had erred.   We are not persuaded by this
argument.   An appellate court is not bound by a trial court’s legal conclusions.
5




No. 98-0517
We conclude that, similar to D.B., the trial court’s introduction of the guardian ad
litem was both informative and desirable, not erroneous.
Tomas, however, argues that in the ten years since D.B. was decided
there has been a philosophical shift in thought as to the role guardians ad litem
should play in representing the best interests of the child; therefore, he asserts that
we should no longer follow our decision in that case.   But, we have no authority to
overrule, modify or withdraw language from our prior decisions.   See Cook v.
Cook, 208 Wis.2d 166, 189-90, 560 N.W.2d 246, 256 (1997).
2.   Ineffective Assistance of Counsel
Tomas asserts that he did not receive effective assistance of counsel.
To support such a claim, Tomas D.C. must overcome a strong presumption that his
counsel  acted  reasonably  within  professional  norms.    State  v.  Johnson,            153
Wis.2d 121, 127, 449 N.W.2d 845, 847-48 (1990).   This requires that he establish
that  his  trial  counsel’s  performance  was  deficient  and  was  prejudicial  to  the
outcome of the proceeding.   See State v. Sanchez, 201 Wis.2d 219, 232-236, 548
N.W.2d 69, 74-76 (1996).
An attorney’s performance is not deficient unless he or she “made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”    See Johnson,  153 Wis.2d at  127,  449
N.W.2d at 847-848 (quoting Strickland, 466 U.S. at 687).   Deficient performance
is only prejudicial if the claimant establishes that there is a reasonable probability
that,  but  for  counsel’s  errors,  the  result  of  the  proceeding  would  have  been
different.   See Sanchez,  201 Wis.2d at  236,  548 N.W.2d at  76.    A reasonable
probability is a probability sufficient to undermine our confidence in the outcome.
6




No. 98-0517
See id.   If Tomas fails to meet either the deficient or prejudicial components of the
test, we need not address the other component.  See id.
Ineffective assistance of counsel claims present mixed questions of
law and fact.   See State v. Pitsch, 124 Wis.2d 628, 633-634, 369 N.W.2d 711, 714
(1985).   A trial court’s factual findings must be upheld unless they are clearly
erroneous.    See State v. Harvey,  139 Wis.2d  353,  376,  407 N.W.2d  235,  245
(1987).    Whether counsel's performance was deficient and, if so, whether the
deficient performance prejudiced the defendant are questions of law, which we
review de novo.  See Pitsch, 124 Wis.2d at 634, 369 N.W.2d at 715.
Tomas first asserts that his trial counsel was ineffective in failing to
object  to  the  court’s  introduction  of  the  guardian  ad  litem  as  the  individual
representing the best interests of the child.   We already have concluded that the
trial court did not err in presenting the guardian in such a manner; therefore, trial
counsel’s failure to object was neither deficient nor prejudicial.
Tomas next asserts that his trial counsel was ineffective for  not
emphasizing the fact that Tomas spoke Spanish and was raised in a different
culture.    Under  § 48.415(1)(c), STATS.,5  abandonment is not established if the
parent demonstrates a good cause for failing to visit or communicate with the child
or the agency responsible for the child.   Tomas contends that if his trial counsel
would have emphasized these language and cultural differences, it was plausible
that the jury would have found good cause to explain why Tomas was unable to
contact his daughter or the Department of Health and Social Services, and the
abandonment allegation therefore might have failed.
5  See footnote 3.
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No. 98-0517
To prevail on an ineffective assistance of counsel claim, Tomas must
establish that there was a reasonable probability that his trial counsel’s deficient
performance prejudiced the outcome of the case.   However, he merely asserts that
“it was plausible” or that the jury “might” find that these language and cultural
differences constitute  a good cause for his lack of  contact with his daughter.
Plausibility is far from a reasonable probability.   Without more definitive evidence
that  the  outcome  was  prejudiced  by  the  trial  counsel’s  failure  to  pursue  this
position, we conclude that Tomas has failed to show prejudice from trial counsel’s
alleged deficient performance.
Tomas also asserts that his counsel was ineffective because he failed
to “prepare a brief with an argument sufficiently strong to persuade the court to
allow the first two special verdict questions to go to the jury.”   These first two
questions were as follows:
1.   Was  Rosa  placed,  or  continued  in  placement
outside  Tomas  [D.C.]’s  home  pursuant  to  a  court  order
which contained the termination of parental rights notice
required by law?
Answered by the Court: Yes
2.   Did Tomas  [D.C.] fail to visit or communicate
with Rosa for a period of three months of longer?
Answered by the Court: Yes
Tomas contends that if these two questions went to the jury, it was
plausible that there might have been a different outcome in this case.   And while
Tomas concedes that the trial court was acting “within its discretion” in answering
these questions for the jury, he contends that the trial counsel still should have
objected to preserve the matter for appellate review.   However, in order for trial
counsel  to  be  ineffective,  the  claimant  must  prove  that  there  is  a  reasonable
probability that the outcome would have been different had trial counsel not been
8




No. 98-0517
deficient.   Tomas, however, is now arguing that his counsel was ineffective for
failing to object to preserve an issue which he concedes the trial court correctly
decided.   We reject such an argument as meritless.
Finally,  Tomas  contends  that  his  counsel  was  ineffective  in
stipulating to the fact that he had been convicted of nineteen crimes.    Tomas
asserts that the admission of these convictions was unfairly prejudicial, and that
the only value in informing the jury that he was incarcerated during this period of
time was to explain why he was unable to have contact with his daughter.   We
disagree.     Evidence  of  Tomas’s  prior  convictions  was  introduced  for  the
permissible purpose of impeaching his credibility under RULE 906.09, STATS.
Tomas next asserts that his trial counsel erred when he stipulated to
the  number  of  convictions,  because  no  specific  convictions  were  named,  no
judgment of convictions were presented and no documents were demonstrated or
placed in the record.   Tomas contends that his trial counsel was ineffective in not
asking him whether:                                                                       (1) the conviction listed on his rap sheet was correct; (2) the
conviction was by plea or upon a jury verdict; (3) he admitted guilt or not; and
(4) he received counsel.   Furthermore, trial counsel also erred in not introducing
those judgments of conviction into the record.
We are not persuaded that these assertions are sufficient to constitute
a  claim  for  ineffective  assistance  of  counsel.    Assuming  arguendo  that  trial
counsel was deficient in not taking these steps, Tomas has not shown that there is
a reasonable probability that this deficient performance prejudiced the outcome in
this case.   He provides no evidence that if the trial counsel would have taken these
steps the outcome would have been different.   He offers no evidence that any of
the  judgment  of  convictions  were  erroneously  entered  or  that  any  of  his
9




No. 98-0517
convictions were without counsel.   Without this evidence, Thomas cannot show
that trial counsel’s performance was prejudicial to the outcome of the case.
Tomas also contends that he was deprived of his constitutional right
to due process.   He seems to assert that certain procedural due process safeguards
were not met in this case due to his trial counsel’s ineffective representation.
However, he fails to articulate how those safeguards were violated.   He also fails
to point out any evidence supporting such a claim.   Without this evidence, we
cannot conclude that Tomas’s due process rights were violated.   We also decline
his request to exercise our discretionary authority under  §§ 751.06 or  752.35,
STATS., to reverse and order a new trial, because we find no evidence in the record
to suggest that the real controversy has not been fully tried, or that it is probable
that justice has for any reason miscarried.   Accordingly, we affirm.
By the Court.—Orders affirmed.
                                                                                        Not recommended for publication in the official reports.   See RULE
809.23(1)                                                                               (b)4, STATS.
10

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