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Dane Co. DHS v. Diane G. / James M., No. 2009AP2038, District IV, 3/18/2010

court of appeals decision (1-judge, not for publication); for James M.: Shelley Fite, SPD, Madison Appellate

TPR – Voluntariness of Plea

¶24      Because Wisconsin statutory law does not permit a court to terminate parental rights upon a finding of unfitness without completing the dispositional phase, we see no rationale for requiring a court to inform a parent that a finding of unfitness results in the automatic loss of the constitutional right to parent.  This is confusing information, given that a parent does not lose this right under Wisconsin statutory law until an order is entered terminating his or her parental rights.  What is important for a parent to understand is that, with the acceptance of his or her plea, the parent no longer has the right to have the State prove unfitness, there will be a finding of unfitness upon acceptance of their plea, and the only issue that remains is the best interest of the child, which the court could decide requires a termination of parental rights.  The colloquy here (apart from the absence of reference to the finding of unfitness) ascertained that James and Diane each understood this.  Knowledge that, as a matter of constitutional law, a court could terminate parental rights upon the acceptance of a plea and a finding of unfitness is not a meaningful addition to the knowledge that a Wisconsin parent should have in order to enter a knowing and voluntary plea, given that this is not permitted in Wisconsin.

TPR – Voluntariness of Plea – § 48.422(7)(bm)

¶28      James asserts his plea was invalid because, before accepting his plea, the court did not establish whether there was a proposed adoptive parent and did not order the County to submit the report required by WIS. STAT. § 48.422(7)(bm). He contends the circuit court erred in dismissing his motion on this ground under a Bangert analysis because this provision is not directed to informing a parent of his or her rights. Rather, he asserts, this subsection imposes an obligation on the court, before accepting a plea, to order the County to submit the prescribed report if a proposed adoptive parent has been identified who is not a relative of the child, and the court’s failure to do this entitles him to withdraw his plea.

¶31     We agree with James that the record does not show compliance with WIS. STAT. § 48.422(7)(bm), but we are not persuaded that he is entitled to withdraw his plea as a result. James’ argument overlooks the significant fact that the report required by § 48.422(7)(bm) is to disclose transfers of anything of value made or agreed to be made by or on behalf of the proposed adoptive parent to James. See § 48.913(7). The evident purpose is to ensure that James is not entering a plea because of such transfers or promises. The court is also required to “[e]stablish whether any promises or threats were made to elicit an admission,” § 48.422(7)(b), which can be accomplished by addressing the parent entering the plea. Subsection (7)(bm) provides additional protection from coercion that might arise from the proposed adoptive parent giving or promising something of value to the birth parent, which the birth parent might not disclose to the court.

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