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Circuit court may consider foster parents’ intent to allow contact with children after TPR is final

State v. M.P., 2016AP2104 & 2016AP2105, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity

At the dispositional hearing on the petition to terminate M.P.’s parental rights to his two children the court heard evidence that the foster parents intended to allow M.P. to continue to have contact with the children if his parental rights were terminated. (¶8). The court of appeals rejects M.P.’s contention that trial counsel was ineffective for failing to object to this evidence.

Citing State v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475, M.P. argues that evidence about the foster parents’ intentions is improper because those intentions aren’t enforceable and are subject to manipulation. Further, he argues the trial court shouldn’t consider such evidence because that allows the court to avoid its statutory duty to determine “whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships” as required by § 48.426(3)(c). (¶10). The court of appeals has a different reading of Margaret H.:

¶17     Notwithstanding M.P.’s request that we find the holding in Margaret H. to be erroneous, we construe this decision as a clear directive by our supreme court regarding the consideration of statements by foster parents. In fact, the supreme court utilized the crux of M.P.’s argument—that by their nature foster parents’ statements of post-termination intent are illusory, unenforceable, and subject to change—in explaining why this court’s interpretation of Wis. Stat. § 48.426(3)(c) was erroneous since it in essence required the trial court to consider them. See Margaret H., 234 Wis. 2d 606, ¶28. Rather, the supreme court concluded that any consideration of such statements is encompassed in the trial court’s discretionary power in deciding TPR cases. Id., ¶30.

¶18     M.P. focuses particularly on a statement in Margaret H. where the supreme court stated that “[i]n its discretion, the [trial] court may afford due weight to an adoptive parent’s stated intent to continue visitation with family members, although we cannot mandate the relative weight to be placed on this factor.” Id., ¶29. M.P. asserts that this is dicta and should have no bearing on our determination of this issue; in fact, M.P. argues that this statement is contrary to the holding of Margaret H. with regard to the illusory nature of any promises made by adoptive parents during a TPR proceeding.

¶19     We disagree with M.P.’s assessment. As stated above, the supreme court recognized that these types of statements are illusory, and thus should be considered under the trial court’s broad discretion. Although the supreme court suggested that affording due weight consideration may be appropriate for such statements, it also specifically stated that it could not mandate such a directive. Id. Furthermore, the trial court in this case did not indicate that it applied any certain weight to its consideration of the testimony regarding the foster parents’ intent regarding visitation, and therefore that is not an issue before this court. Rather, the trial court’s consideration of the foster parents’ purported intent—indeed, of all the relevant factors—falls under the trial court’s discretionary umbrella

¶20      Therefore, because our supreme court has already essentially rejected M.P.’s argument, it fails. As a result, M.P.’s trial counsel was not ineffective for failing to pursue an ineffectual argument. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994).

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