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Colloquy on admission to TPR grounds doesn’t require advisement that incarceration alone can’t be ground for unfitness finding

State v. A.M.B., 2015AP1618, District 1, 4/12/16 (one-judge decision; ineligible for publication); case activity

Andy was incarcerated when his daughter Catie was born and he remained in custody throughout the subsequent CHIPS and TPR proceedings. He ultimately admitted to the continuing CHIPS ground for termination of his parental rights, but now claims his admission was invalid because he was not aware that, under Kenosha County Department of Human Services v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, incarceration alone cannot be grounds to terminate parental rights. The court of appeals finds no flaws in his admission.

Several weeks after her birth Catie was placed out of the home under a CHIPS order establishing various goals and conditions for return, including conditions specially tailored for incarcerated parents like Andy. Andy failed to meet various goals and conditions, so a TPR petition was filed. Andy ultimately stipulated that Catie was in continuing need of protection or services. At the “prove up” hearing there was evidence that Andy didn’t meet the CHIPS conditions in part because he couldn’t get into programming he needed or have visitation with Catie due to his security level and to being in and out of segregation. (¶¶2-7).

The trial court’s § 48.422(7) colloquy with Andy concerning his admission was, contrary to Andy’s argument, “anything but perfunctory.” (¶¶17-19). Further, the court of appeals rejects his claim the colloquy should advise the parent of the law under Jodie W.:

¶20     …. In presenting this argument, Andy requests that we “adopt a rule that a parent who is incarcerated cannot knowingly, intelligently, and voluntar[il]y enter an admission to a petition alleging that he or she has not met the conditions for return in a termination of parental rights proceeding without being first informed that ‘incarceration, standing alone, is not a constitutional ground for finding a parent unfit.’” We discern from this a request that we adopt a broad categorical rule that the trial court be required to advise an incarcerated parent that “incarceration, standing alone, is not a constitutional ground for finding a parent unfit.” We decline to adopt such a rule, as each termination of parental rights case is highly dependent upon its own facts, and the trial court is simply not in a position to know, without detailed conversation with the parent, whether the law of Jodie W. actually does or does not apply in a given case. Andy points to no other alleged deficiency in the trial court’s colloquy on appeal. Accordingly, we conclude that the trial court complied with its mandatory duties regarding the colloquy prior to accepting Andy’s stipulation, … [Footnote omitted]

The court also rejects Andy’s alternative argument that his admission was invalid due to his lawyer’s failure to advise him about the law under Jodie W. While trial counsel didn’t mention the case to Andy by name, he discussed the rule that failure to meet impossible conditions can’t be grounds for termination and told Andy that, in his opinion, that would not be a defense because Andy failed to meet conditions there were possible to complete. This conclusion is supported by the record and therefore counsel wasn’t deficient in advising Andy. (¶¶21-36).

Nor was trial counsel ineffective for failing to argue that the alleged failure to assume parental responsibility ground was unconstitutional as applied to Andy. While the petition alleged that ground, it was dismissed when Andy admitted to the continuing CHIPS ground, and therefore wasn’t a basis for the termination order. (¶¶6, 37-39).

Andy also argues that the trial court erred in considering testimony of the potential adoptive parent that she intended to allow the child to maintain contact with the biological family if parental rights are terminated. Andy points out this statement of intent, however well-intentioned, is illusory and nonbinding. Nonetheless, it didn’t render the court’s termination decision infirm. The court properly exercised its discretion in reaching the termination decision, as it extensively addressed each of the factors relating to the best interest of the child listed under § 48.426(3). Moreover, the supreme court implicitly affirmed consideration of similar testimony from an adoptive parent in Darryl T.-H. v. Margaret H., 2000 WI 42, ¶¶9, 30-31, 234 Wis. 2d 606, 610 N.W.2d 475. (¶¶40-49).

The termination of Catie’s mother’s parental rights is affirmed in a separate decision.

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