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Challenge to competency of TPR court waived by failure to object

State v. J.M.W., 2017AP158, District 1, 9/6/17 (one-judge decision; ineligible for publication); case activity

J.M.W. contends the steps in the proceedings terminating his parental rights occurred out of order and therefore the circuit court lost competency to conduct a disposition hearing. The court of appeals holds he waived a competency challenge by not raising it in the circuit court first.

J.M.W. stipulated to grounds for termination of his parental rights and the case proceeded to disposition. During the disposition hearings the State advised the court they still needed to “prove up” a factual basis for the grounds for termination under § 48.422(3) and (7). J.M.W. didn’t object to addressing the factual basis at that point. After the prove-up the court made an unfitness finding and then returned to the question of disposition. (¶¶2-4). J.M.W. now argues the court lost competency to proceed because it turned to disposition without first doing the prove-up and making an unfitness finding.

Whatever the merit of this claim, the court of appeals doesn’t reach it. Competency (unlike jurisdiction) can be waived if it’s not raised in the circuit court, Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190, and that’s what happened here:

¶8     …J.M.W. did not raise the issue of the circuit court’s competency at the circuit court level during the pendency of the TPR proceedings or at the remand hearing. …. J.M.W.’s postdisposition motion requesting withdrawal of his stipulation alleges that the circuit court failed to: advise him of potential dispositions; advise him that the purpose of disposition was to determine the best interest of his child; determine whether a factual basis existed for his stipulation; and ascertain whether an adoptive resource had been identified for the child. However, the motion did not allege that the circuit court’s alleged errors resulted in a lack of competency to proceed to disposition. Moreover, J.M.W.’s motion failed to allege how he was prejudiced by the procedural irregularities. Accordingly, we conclude that J.M.W. waived his right to challenge the circuit court’s competency.

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