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No error in admitting foster parent’s future contact testimony or in proving up father’s no-contest plea

State v. A.S.F., 2016AP2076, and State v. V.C., Jr., 2016AP2077, both District 1, 7/11/17 (one-judge decisions ineligible for publication); case activity: A.S.F.; V.C.

In this pair of decisions addressing the termination of the parental rights of both parents of J.T.C., the court of appeals rejects the parents’ claim that it was error to allow J.T.C.’s adoptive parent to testify that she would allow contact between the child and members of his biological family if the court terminated the parents’ rights. The court also rejects V.C.’s argument that the circuit court improperly relied on evidence from A.S.F.’s trial to “prove up” the factual basis for V.C.’s no-contest plea to the petition.

The petition to terminate the parental rights of A.S.F., the child’s mother, and V.C., the father, alleged termination was appropriate on continuing CHIPS grounds and on failure to assume parental responsibility. (A.S.F., ¶¶5-8; V.C., ¶¶5-8). A.S.F. went to trial, but on the trial date V.C. entered a plea to the petition. (A.S.F.¶10; V.C.¶10). At the joint dispositional proceeding J.T.C.’s foster parent (and potential adoptive parent) testified she was willing to allow J.T.C. to have contact with A.S.F. and with V.C. and his family members after adoption, so long as the contacts were appropriate. She also said it would be important for J.T.C. to maintain a relationship with A.S.F. and his brother. (A.S.F.¶¶11, 20; V.C.¶45). The circuit court “may afford due weight to an adoptive parent’s stated intent to continue visitation with family members,” though the weight given that intent must be carefully considered because it is legally unenforceable once termination is ordered. Darryl T.-H. v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475. Thus, the admission of the foster parent’s testimony in this case was not erroneous. (A.S.F.¶¶21-27; V.C.¶¶46-48).

V.C. makes a separate argument about the factual basis for his no-contest plea. He claims that instead of establishing the factual basis at his plea proceeding, the circuit court didn’t “prove up” his plea until the dispositional hearing, and when it did so it used evidence from A.S.F.’s trial. Because V.C. and his lawyer weren’t at the trial, he argues, his right to counsel was violated. The court of appeals concludes the circuit court did establish a factual predicate at the plea hearing (V.C.¶¶22-29), and even if it didn’t V.C. fails to show that evidence from A.S.F.’s trial was used to prove-up his plea (V.C.¶¶30-39).

Though it doesn’t affect the result, thee court’s discussion of V.C.’s plea is imprecise, if not confusing. The court characterizes V.C.’s plea as a “no-contest plea” (e.g., V.C., ¶¶10, 27), but the facts suggest it was an admission to the grounds because V.C. ultimately agreed the facts in the petition were “substantially true and correct.” (V.C., ¶26). This matters because “[d]eciding not to contest the allegations of the [TPR] petition is not equivalent to admitting the allegations in a petition,” Waukesha County v. Steven H., 2000 WI 28, ¶52, 233 Wis. 2d 344, 607 N.W.2d 607. Further, under § 48.422(3), “[i]f the [TPR] petition is not contested the court shall hear testimony in support of the allegations in the petition, including testimony as required in sub. (7) [which deals with factual basis, among other things]” (emphasis added). Contrary to the court’s conclusion, then, if V.C. entered a no-contest plea, the factual basis for the plea wasn’t established at V.C.’s plea proceeding because no testimony was taken at that proceeding. (V.C., ¶26).

The court’s imprecision doesn’t matter because, as we noted, V.C.’s plea was essentially an admission, not a no-contest plea, and the plea proceeding established a sufficient factual basis under § 48.422(7)(c) for an admission. Alternatively, if it was a no-contest plea, the lack of testimony at the plea proceeding was fixed by the testimony taken at the dispositional hearing (at the insistence of the state and GAL, who didn’t think there’d been a sufficient prove-up at the plea (V.C., ¶¶12, 2830)).

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