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Father’s stipulation to TPR grounds was valid despite later remarks suggesting he didn’t understand the grounds

State v. K.G., 2015AP245, District 1, 10/27/15 (one-judge decision; ineligible for publication); case activity

K.G.’s stipulation to the failure-to-assume-parental-responsibility ground alleged in the TPR petition was valid even though K.G.’s later statements during the disposition hearing suggest he misunderstood what the state would have to prove to establish that ground for termination.

Before accepting K.G.’s stipulation to the grounds the circuit court engaged in a colloquy with K.G. as required under § 48.422(7). The colloquy confirmed K.G.’s level of education (one year of college); established he had read the TPR petition; and confirmed he and his attorney had discussed the petition and the legal definition of the failure-to-assume ground, including by way of a review of the relevant jury instruction. (¶¶8-11, 27-29). But at the prove-up hearing, K.G.—focusing on the reference in the legal definition of the ground to “daily” care and supervision—expressed confusion that he could be found to have failed to assume responsibility when he was denied daily contact with the child, A.K., because the child had been removed from the home under a CHIPS order. (¶¶11-16, 30).

The court of appeals holds the entire record, and in particular the circuit court’s handling of the issue at the prove-up, showed K.G. understood the nature of the failure-to-assume ground:

¶31    Upon hearing Mr. G’s concerns at the … prove up, the trial court took care to re-read the relevant jury instruction to Mr. G, again explaining that the jurors would be told that they could consider “the totality of circumstances” and that they “could consider the reason for [Mr. G’s] lack of involvement when they assess all the circumstances throughout [A.K.]’s entire life.” After re-explaining the jury instruction to Mr. G, the trial court asked Mr. G if he had “a better understanding about this” or whether he wanted more time to discuss the failure-to-assume ground with his lawyer. Mr. G did not tell the court that he did not understand or ask for more time to discuss the ground with his lawyer. Instead, Mr. G stated, “If I don’t agree to it, then we’re going to go to trial, right?” After some more discussion, Mr. G told the court, “No, I do know where — I don’t want to go to trial. I would like to get this settled today. We can move on, continue on.” In an attempt to clarify, the trial court asked Mr. G, “You’d like to continue with your stipulation; is that right?” and Mr. G responded, “Yes.”

K.G. also claims that the failure-to-assume ground is unconstitutional as applied to him because the child had been removed from the mother’s custody and was in foster care, making it impossible for him to establish a relationship. This claim is waived because he stipulated to the ground, and he did not identify the claim as a basis for the remand he successfully sought to raise other issues, including the issue of the validity of his stipulation and newly-discovered evidence. (¶¶33-40).

Finally, K.G. is not entitled to a new dispositional hearing based on new evidence. The evidence wasn’t new because it was available at the time of the original dispositional hearing and, in any event, the evidence was both not material and cumulative. (¶¶41-46).

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