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Court of appeals affirms TPR, rejects novel challenges to statute and request for ceritfication to SCOW

State v. C.W., 2017AP1228-1230, 5/1/18, District 1 (1-judge opinion, ineligible for publication); case activity

Among several interesting challenges to the termination of his parental rights, C.W. argues that he was statutorily entitled to an evidentiary hearing on his claim that his “no contest” plea was not knowing and intelligent and that SCOW should withdraw language from State v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475.

Right to evidentiary hearing. According to the court of appeals, C.W. pled “no contest” to “failure to assume parental responsibility” during the grounds phase of a TPR proceeding. On appeal, he argued that §809.107(6) required the post-disposition court to hold an evidentiary hearing on the issue. The relevant part of §809.107(6)(am) provides:

If the appellant intends to appeal on any ground that may require postjudgment fact-finding, the appellant shall file a motion in the court of appeals … raising the issue and requesting that the court of appeals . . . remand to the circuit court to hear and decide the issue . . . If the court of appeals grants the motion for remand, it shall set time limits for the circuit court to hear and decide the issue . . .

The court of appeals rejected C.W.’s interpretation of the statute:

[T]he statute By its plain language does not entitle appellants to evidentiary hearings upon demand. Rather, the appellate court’s remand requires the post-disposition court to “hear and decide” any issue “that may require post judgment fact-finding.” Id. (emphasis added). As is spelled out in relevant case law such as Therese S., the post-disposition court must decide under the applicable framework which claims require post-judgment fact-finding – i.e., an evidentiary hearing – and which claims do not. See Oneida County DSS v. Therese S., 2008 WI app 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122. Opinion ¶16.

But that’s not what ¶6 of Therese S. says. Rather, the court of appeals held that Therese S. had made a prima facie showing that her plea was not knowing and intelligent and remanded the case for a hearing. The court of appeals did not consider the statutory interpretation argument that C.W. seems to makes here. In fact, Therese S. does not even cite (let alone interpret) §809.107(6).

Factual basis of plea. C.W. also argued that there was no factual basis for his no-contest plea because at the contested disposition hearing the circuit court said: it is “very clear each of these boys has a substantial relationship with each of these parents.” Opinion ¶18. The court of appeals held that C.W. waived his right to make this argument, but even if it reached the merits it would hold that there was a factual basis for the plea. Opinion ¶19.

Impossible conditions of return. C.W. also argued that the State made it impossible for him to meet the conditions for return of his children by removing them from his home in violation of Kenosha Cty. DHS v. Jodie W., 2006 WI 93, ¶3, 293 Wis. 2d 530, 716 N.W.2d 845. The court of appeals held that C.W.’s lack of participation in the kids’ education and behavioral health “since removal” proved otherwise. Opinion ¶22 (emphasis in original).

Ineffective assistance of counsel for failing to object to foster parents’ testimony. Apparently the foster parents of C.W.’s kids testified that they intended to continue contact between them and their biological family, and the circuit court took this into consideration when terminating C.W.’s parental rights. State v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475 apparently permits this consideration. C.W. argued that the statement was dicta and the court of appeals should certify the issue to SCOW to have the point clarified.  The court of appeals stood by Margaret H. and held that the trial court did not err in considering this testimony.

So this appeal appears to raise 2 issues worthy of SCOW’s attention.

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