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TPR – Testimony in Support of Petition, § 48.422(3)

Dane Co. DHS v. Jennifer F., 2011AP530, District 4, 6/9/11

court of appeals decision (1-judge, not for publication); for Jennifer F.: Paul G. LaZotte, SPD, Madison Appellate; case activity

Although the trial court erred in not taking testimony in support of no-contest pleas to the TPR petition as required by § 48.422(3) (see Waukesha County v. Steven H., 2000 WI 28, ¶56, 233 Wis. 2d 344, 607 N.W.2d 607), the error wasn’t prejudicial.

¶8        In Waukesha County, the supreme court concluded that a circuit court’s failure to comply with Wis. Stat. § 48.422(3) was not prejudicial when “[a] factual basis for several of the allegations in the petition [could] be teased out of the testimony of other witnesses at other hearings when the entire record [was] examined.”  Id., ¶58.   Nothing in Waukesha County limits the “teas[ing] out” to testimony taken before the fact-finding hearing.[3] See id.

¶9        As in Waukesha County, a factual basis for several of the allegations in the petition “can be teased out” of the testimony in the record.  Id.

The court relies on testimony at the dispositional phase that Jennifer failed to meet various conditions for the return of her children, and stressed that she “provided no defense to the factual allegations in the petitions,” ¶11. Thus, it is “clear” that a factual basis for grounds exists, ¶12.

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