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Brown Co. DHS v. Brenda B., No. 2010AP321, District III, 6/2/10; affirmed 2011 WI 6

court of appeals decision, affirmed 2011 WI 6; for Brenda: Leonard D. Kachinsky

TPR – Plea to Grounds

In taking a plea to TPR grounds, the court need not inform the parent of “sub-dispositions,” i.e., those which “pertain only to the effect on the child, addressing who will have guardianship and custody in the event the parent’s rights are terminated as a primary disposition,” ¶11.

Nor need the court caution that the person is thereby “waiving her constitutional right to parent,” ¶14, citing Dane County DHS v. James M., Nos. 2009AP2038, 2009AP2039, unpublished slip op. (WI App Mar. 18, 2010).

The court relies on James M., though unpublished, because § 809.23(3)(b) permits citation of a 1-judge opinion “for its persuasive value,” ¶14 n. 3. The court apparently finds this unpublished opinion quite persuasive:

¶16     In any event, neither party adds anything to the discussion presented in James M., and we discern no reason to depart from its holding that parents need not be informed they are waiving their constitutional right to parent by pleading no contest to the grounds for termination. We therefore adopt the thorough reasoning set forth in that case as our own. See id., ¶¶15-24. A copy of the James M. decision is available on the Wisconsin courts website at http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=48077.

You may also find the decision here. While we’re on the subject, just how should counsel handle an unpublished-but-citable opinion? In this instance, the court notes (perhaps with veiled disdain) that both parties copy-pasted from the unpublished decision, presenting its reasoning without attribution, and recommends instead, ¶15 n. 4: “Where, however, parties parrot significant portions of such a case, if permissible under the rule, we suggest they acknowledge it and provide citation and a copy of the decision.” Fine. But keep in mind that effective 1/1/11, Rule 809.19(2) (2010 WI 42) will require that the brief’s Appendix include “a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b).” In other words, this will soon be more than a suggestion, so you may want to start getting in the habit now. Just to round off the point, you must certify that the Appendix meets all requirements, and therefore an Appendix that falls short also means a certification that is false — something that subjects counsel to possible sanction, Werner v. Hendry, 2009 WI App 103, ¶11.

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