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Challenges to TPR order rejected

State v. L.J., 2017AP1225, 2017AP1226, & 2017AP1227, District 1, 5/1/18 (one-judge decision; ineligible for publication); case activity

L.J. challenges her no-contest plea to there being grounds to terminate her parental rights to three of her seven children. She argues the plea wasn’t knowing and voluntary and that § 48.415(6), the statute regarding failure to assume parental responsibility, is unconstitutional as applied to her. She also argues there was improper testimony at the disposition hearing. The court of appeals rejects each claim.

L.J. argues her plea was invalid because trial counsel didn’t inform her that the burden of proof applicable to the grounds phase (clear, satisfactory, and convincing) didn’t apply at disposition. She also says the circuit court erred in failing to give her a postjudgment evidentiary hearing on this claim because  § 809.107(6)(am) mandates postjudgment fact-finding. But the record of the plea colloquy shows that the circuit court explained to L.J. the governing standard at disposition—namely, the best interests of the child, which moots a burden of proof inquiry. And because the record showed conclusively that the court explained the proper standard an evidentiary hearing wasn’t necessary under § 809.107(6)(am). (¶¶6-7, 14-22).

L.J.’s challenge to the application of § 48.415(6) asserts the removal of the children from her home made it impossible for her to assume responsibility. Besides failing to develop an argument about the statute’s constitutionality, the challenge fails as a factual matter: The petition was based on L.J.’s failure to assume the parental responsibility she could have even with the children placed outside of the home by, e.g., meeting conditions for return and participating in the lives and care of the children. (¶¶23-26).

These two issues were also raised and similarly disposed of in another TPR case decided the same day, State v. C.W., 2017AP1228-1230; for more discussion see our post on that case.

Finally, at disposition the circuit court could consider, as one relevant factor among others, evidence that the foster parents would allow continued contact between L.J. and the children even after termination. (¶¶27-29).

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