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No error in TPR no-contest procedure or court’s consideration of likely contact with birth parent

State v. M.W., 2016AP2045 & 2046, 7/11/17, District 1 (one-judge decision; ineligible for publication); case activity

M.W. pled no contest to a continuing CHIPS ground in the initial phase of the termination of her parental rights. She argues on appeal that the court erred in hearing factual basis testimony after her plea colloquy and in finding unfitness when she did not agree with some of the factual basis presented.

The court of appeals disagrees.

M.W. has not established that her due process rights were violated because the circuit court established the factual basis for the plea after M.W.’s colloquy, nor has she established that the court was required to rely on an undisputed set of facts prior to accepting her plea. By M.W.’s own admission, she failed to complete certain conditions required for the return of her children. The circuit court also confirmed with her multiple times that she wished to plead no contest. Moreover, as the circuit court noted, a no contest plea does not require a party to agree with all aspects of the factual basis establishing the plea, it simply requires a party to acknowledge that sufficient facts are true for the State to prove its case. The record establishes that M.W.’s plea was entered knowingly, voluntarily, and intelligently.

(¶20).

M.W. also contends her trial counsel was ineffective for failing to object when, during the disposition phase, the foster mother testified she intended to maintain contact between the children and the birth mother. She also alleges the court erred in considering this testimony. Once again, the court of appeals rejects the claim:

The Wisconsin Supreme Court’s decision in Darryl T.-H. v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475, essentially kills both of M.W.’s arguments with one stone. In that case, the Wisconsin Supreme Court acknowledged that continued contact between children and their biological families can be a relevant consideration for circuit courts when determining the best interests of children in TPR actions, stating “[i]n its discretion, the [circuit] court may afford due weight to an adoptive parent’s stated intent to continue visitation with family members,” see id., ¶29. Upon remanding a termination matter back to the circuit court, the court in Margaret H. noted that the circuit court could “certainly choose to examine the probability that [the adoptive resource] will be faithful to her promise [to allow continued contact between the children and the biological family], at the same time bearing in mind that such promises are legally unenforceable once the termination and subsequent adoption are complete.” Id., ¶30. That is precisely what the circuit court did here.

(¶24).

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