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COA affirms TPR of incarcerated parent

Waupaca County v. J.J., 2019AP805, 10/29/19, District 4 (one-judge decision; ineligible for publication); case activity

J.J. challenges the termination of his parental rights, alleging trial counsel was ineffective and lack of a factual basis for his no contest plea. The court of appeals rejects both claims.

J.J.’s primary ineffective assistance allegations are that trial counsel should have moved to dismiss the TPR petition for failing to allege sufficient facts that he failed to assume parental responsibility and, relatedly, should have fought the petition at a fact-finding hearing rather than counseling a no-contest plea.

J.J. was incarcerated for a long stint for neglect causing the death of a different child. He argued the facts in the petition are present whenever a parent is incarcerated, but because incarceration cannot, on its own, prove that a parent is unfit, facts that “necessarily accompany incarceration” cannot prove that a parent is unfit, and thus, the allegation in the petition cannot prove that he was unfit. (¶¶15-22).

¶23     J.J. is correct that a parent’s incarceration in itself does not demonstrate that the parent is unfit. Kenosha County D.H.S. v. Jodie W., 2006 WI 93, ¶49, 293 Wis. 2d 530, 716 N.W.2d 845. However, J.J. does not cite to any legal authority supporting his assertion that causes and effects of incarceration cannot prove that a parent is unfit. J.J. asserts that allowing causes and effects of a parent’s incarceration to prove that a parent is unfit “circumvent[s]” the reasoning underlying the Jodie W. ruling that incarceration, alone, is not evidence that a parent is unfit. However, he fails to explain why this is so and fails to explain why looking to causes and effects of a parent’s incarceration is not permissible under Jodie W. or any other legal authority, and I can discern no such reason.

¶24     Moreover, as pointed out by the County, in determining whether an incarcerated parent has a substantial relationship with his or her child, additional factors can be considered, including: the reasons for the parent’s incarceration; the nature of the underlying criminal behavior; and whether the parent engaged in that behavior knowing that the potential or resultant incarceration would prevent or hinder the parent from assuming his or her parental responsibilities. See Wis. J.I.—Children 346B. A fact-finder could reasonably infer from the facts set forth above in ¶21 that J.J.’s inability to assume parental responsibility for V.J. is due to J.J.’s criminal conduct that resulted in the death of another child in J.J.’s care. These are valid considerations under Wisconsin law in determining whether a parent has failed to assume parental responsibility. ….

Because the petition alleged sufficient facts, counsel wasn’t ineffective for failing to move to dismiss it or to insist on a fact-finding trial. (¶¶25-27).

Relatedly, J.J. argues the petition, which the parties stipulated provided a factual basis for his no-contest plea, did not in fact provide a sufficient factual basis, and that the circuit court erred in accepting the stipulation rather than requiring testimony about the facts. Assuming without deciding the circuit court should have taken testimony at the plea hearing, the court of appeals finds testimony from other hearings that provides sufficient factual basis, and so rejects J.J.’s claim. (¶¶29-39).

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