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TPR – Plea-Withdrawal

Dane Co. DHS v. Brittany W., No. 2009AP2778, District IV, 7/8/10

court of appeals decision (1-judge; not fo publication); for Brittany W.: Lora B. Cerone, SPD, Madison Appellate

The court rejects Brittany’s claim she didn’t understand the consequence of her no-contest plea (that she would be deemed unfit, and that disposition would turn on the child’s best interests), given the trial judge’s finding that the denial of such knowledge wasn’t credible, ¶¶10, 14. And, counsel’s strategic decision, agreed to by Brittany, to focus on disposition was reasonable:

¶12      We reject, moreover, Brittany’s suggestion that the adoption of this strategy under the circumstances reflects her trial attorney’s misunderstanding of the purposes of the two phases of the termination proceeding. While the second phase of the proceeding is concerned with the child’s best interests, many factors may impact a best-interests determination, including circumstances favorable to the parent, “including prognosis for the parent’s markedly changed behavior.” Sheboygan County D.H.H.S. v. Julie A.B., 2002 WI 95, ¶29, 255 Wis. 2d 170, 648 N.W.2d 402. WISCONSIN STAT. § 48.426(3) states that, “[i]n considering the best interests of the child … the court shall consider but not be limited to” six statutory items. (Emphasis added.) Among these factors is “[w]hether 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.” Section 48.426(3)(c). This factor is directly related to one of Brittany’s objectives in focusing on the second phase of the proceeding, strengthening the bond between her and Na’Keyshia in the months prior to disposition. And, while Brittany’s other stated goal of becoming sober from drugs and making other positive lifestyle changes during that time is not a factor listed in § 48.426(3), it is clearly among those non-specified reasons relevant to the issue of whether it would be in the child’s best interest to have his or her relationship with the parent terminated.

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