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Parents’ no-contest pleas to TPR grounds were valid

State v. M.A.H., 2017AP1785 & 2017AP1786, District 1, 7/3/18 (one-judge decision; ineligible for publication); case activity

State v. K.C.H., 2017AP1787 & 2017AP1788, District 1, 7/3/18 (one-judge decision; ineligible for publication); case activity

M.A.H. and K.C.H. entered no-contest pleas to the continuing CHIPS grounds alleged in the petitions to terminate the parental rights to their children. They later challenged those pleas, arguing they weren’t voluntary because they were induced by a promise to allow additional visitation  of the children, who were in foster care, pending a disposition hearing if they entered the pleas. Their challenge fails because there was no such promise.

M.A.H. and K.C.H. and their trial lawyers testified at a postdisposition hearing on the motion challenging the pleas. The parents said they had little time to consider the no-contest plea offer, as it was made the morning of trial, and they took the offer to be a threat—if you want more time with your children, plead no contest and you will get some more therapeutic visits. (M.A.H.¶¶22, 23, 29; K.C.H.¶¶21, 22, 28). Their lawyers told a different story. They testified the deal had been discussed a few days before trial, and in any event didn’t involve more visitation at all; instead, the deal was that entering no contest pleas would get an adjournment of the dispositional hearing, something the lawyers saw as a benefit because it would give both parents more time to renew and/or strengthen their relationship with the children by continuing the visitation already in place. It was in this context that the parents’ lawyers broached the possibility of getting additional visitation pending disposition. (M.A.H., ¶¶30-36; K.C.H., ¶¶29-35). The circuit court found the lawyers more credible, and between that factual finding and the record of the plea colloquy itself the court of appeals can’t but conclude that the pleas were voluntary. (M.A.H., ¶¶12-13, 27-28, 37-40; K.C.H., ¶¶12-13, 26-27, 36-39).

The parents also argue that the plea colloquy was inadequate because the judge failed to advise them that delaying the dispositional hearing was potentially detrimental to them, as the amount of time a child is out of the home is one of the factors a court considers at disposition, § 48.426(3)(e), and the longer the time out of the home, the worse for the parent. The court of appeals disagrees. There’s no requirement a TPR plea colloquy advise the parent of every factor a court uses in deciding disposition, the court says; instead, under Oneida County DSS v. Therese S., 2008 WI App 159, ¶¶16-17, 314 Wis. 2d 493, 762 N.W.2d 122, it’s enough that the court make clear that the best interests of the child is the prevailing factor for deciding whether to terminate the parent’s rights. (M.A.H., ¶¶41-49; K.C.H., ¶¶40-48).

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