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Parent’s admissions to TPR grounds were knowing and voluntary

State v. A.L., 2015AP858 through 2015AP861, District 1, 8/5/16 (one-judge decision; ineligible for publication); case activity

A.L. challenges her admissions that there were grounds to terminate her parental rights to her four children. The court of appeals holds her admissions were knowing and voluntary. The court also holds that calling A.L. as a witness at the trial of the father of one of the children without her lawyer being present doesn’t require reversal of her termination orders.

A.L. made the admissions in two separate proceedings, one involving three of her children, the second involving her fourth child. Her challenges to the admissions, and the court’s disposition of them, are as follows:

  • A.L. contends the trial court didn’t explain the burdens of proof applicable to the grounds phase and dispositional phase, but the record shows the court provided a sufficient explanation of the different burdens. (¶¶21-24).
  • A.L. contends that she was not informed that by entering her admissions, she wouldn’t be able to challenge the state’s “prove up” evidence; again, the record establishes that the the trial court explained the rights she was giving up by admitting to the grounds, which included challenging the state’s witnesses, and she agreed the court could use the “prove up” testimony as a factual basis for her admission. (¶¶25-31).
  • A.L. argues she was unaware that she couldn’t challenged the unfitness finding if she entered an admission. But § 48.422(7) doesn’t mandate that the court inform the parent of that result of an admission, and A.L. doesn’t develop an argument that her lack of knowledge of that information tainted her admission. (¶¶32-34).
  • A.L. argues she mistakenly believed she couldn’t have appealed a jury’s decision on grounds if she’d gone to trial; but a parent’s appellate rights aren’t one of the topics a court must cover in taking an admission under § 48.422(7). (¶¶35-37).
  • A.L. claims her admissions were invalid because she disputed the factual basis for them, but the record belies this claim. (¶¶38-40).

Finally, based on State v. Shirley E., 2006 WI App 55, 290 Wis. 2d 193, 711 N.W.2d 690 (Shirley E. I), aff’d, 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623 (Shirley E. II), A.L. claims her statutory right to counsel was violated when she was called as a witness at the grounds trial of J.S., the father of one the children, without her attorney being present. (¶¶8, 41-43). Not so, says the court:

¶44      A.L. relies heavily on the Shirley E. decisions; however, this case is distinguishable because there, Shirley E.’s parental rights were actually at stake during the proceedings at which her attorney did not—and was ordered not to— participate. See Shirley E. II, 298 Wis. 2d 1, ¶16-18. Here, to the contrary, A.L.’s parental rights were not at stake during J.S.’s hearing, and there is no indication that the absence of counsel during a hearing where her rights were not at stake placed the fairness and integrity of the TPR action as to her parental rights in doubt. While A.L. remained a party to the TPR action regarding Simone because the dispositional hearing had not yet occurred, A.L.’s parental rights were not at stake during J.S.’s fact-finding hearing—only J.S.’s parental rights were at stake at that time.

In any event, any violation of her right to counsel was not “structural,” as she claims, because at the time she testified she’d already admitted there were grounds to terminate her rights as to that child. (¶¶46-48).

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