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Court of Appeals rejects incarcerated mom’s challenges to TPR

State v. J.W., 2017AP689-690, 2/27/18, District 1 (1-judge opinion, ineligible for publication); case activity

J.W. appealed a circuit court order terminating her parental rights to her 2 children and argued that (1) her trial lawyer misadvised her to enter a no-contest plea to grounds for termination and didn’t try hard to find a relative to place her children with, and (2) she did not knowingly agree to adjourn proceedings to work on conditions for return of her children–conditions that were impossible to meet.

Ineffective assistance of trial counsel.  J.W. is incarcerated. She argued that her trial lawyer should not have advised her to enter a no-contest plea to the CHIPS ground and “failure to assume parental responsibility” ground for termination of her parental rights. Her lawyer should have known that her incarceration impeded her ability to meet the conditions of return. He should have taken the case to trial and requested Wisconsin JI–Children 324, 346B regarding an impossibility to perform.  See Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845 (holding that incarceration can’t be the only grounds for terminating parental rights).

Noting that trial counsel’s strategic decisions are “virtually invulnerable to second guessing, State v. Westmoreland, 2008 WI App 15, ¶20, 307 Wis. 2d 429, 744 N.W.2d 919, the court of appeals held:

¶29 . . . At the postdispositional hearing, trial counsel testified that in some cases where a relative comes forward and the child is placed with the relative, everyone moves in an alternative direction of doing something other than terminating parental rights. Trial counsel’s strategy was to focus on getting a family member to step forward and take the children. He discussed the strategy with J.W. and she agreed.

J.W.’s argument that trial counsel did not search hard enough for a maternal relative with whom to place her children also failed based on the unique facts of this case. The record showed that trial counsel repeatedly tried to contact potential family members for placement. Trial counsel was unsuccessful, and this prevented him from moving for a change in guardianship. Also, J.W. never identified any relative who would have accepted her children. Opinion ¶¶31-34.

Voluntariness of no-contest plea.  J.W. argued that she could not knowingly plead no-contest to work on conditions of return that were impossible to meet due to her incarceration. This argument did not sit well with the court of appeals, again, due to facts specific to this case.

¶36 J.W.’s argument is no more than an attempt to repackage her argument that trial counsel was ineffective for advising her to enter a no-contest plea at the grounds phase of the case. She even states the following without explaining how it applies to knowingly, voluntarily, and intelligently entering her plea—“J.W. [was] misinformed by her attorney that entering a plea was the ‘best option to go forward.’” J.W. never testified that she believed that by entering her plea, she would have more time to work on the conditions for return of her children.

¶37 In fact, at the plea hearing, J.W. expressly stated that she understood that after she entered the plea, the only issue before the trial court at the dispositional hearing would the best interest of the children. She also stated that she understood that based on her plea, the trial court would find her unfit as a parent. She also stated that she understood that at the dispositional hearing the court could terminate her parental rights and the children would likely be placed for adoption. She further stated that she understood that the trial court could order a guardianship which would permanently place the children outside the parental home until the age of eighteen. J.W.’s argument misstates the record.

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