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TPR – Competence of Court to Enter Order; IAC; Parental Unfitness – Sufficient Evidence

State v. Francine T., 2010AP3140 / State v. Emilano M., 2010AP2596, District 1, 8/3/11

court of appeals decision (1-judge, not for publication); for Francine T.: Theresa J. Schmieder; for Emilano M.: Brian C. Findley; case activity

¶17      Francine and Emiliano argue that the trial court lacked competence [5] to enter the June 2, 2010 TPR order because it did not have competence to enter 
the January 31, 2008 extended CHIPS dispositional order, on which the TPR was based. [6]  Essentially, without saying so, Francine and Emiliano collaterally attack the January 31, 2008 extended CHIPS dispositional order.  They argue that the original CHIPS dispositional order expired on November 13, 2007, and that the trial court had no authority to extend the order past that date; therefore, the trial court’s adjournments on November 1, 2007, and December 19, 2007, failed to lawfully extend the statutory time limits.  Consequently, when the parties stipulated to the CHIPS extension on January 31, 2008, the trial court lacked competence to enter the year-long extension order.

¶18      We conclude that Francine and Emiliano are barred from raising this claim because it is a collateral attack on a previous final order of the trial court to which they did not object and which they did not appeal.  Furthermore, even if the claim was not barred, they cannot succeed on the merits.

Schoenwald v. M.C., 146 Wis. 2d 377, 432 N.W.2d 588 (Ct. App. 1988) (collateral attack on earlier and unobjected-to CHIPS extension order in subsequent CHIPS extension proceeding prohibited), deemed controlling, ¶23 (“Because Francine and Emiliano did not object to the trial court’s competence to proceed before the trial court entered the January 31, 2008 extended CHIPS dispositional order or appeal from that order, they are precluded from challenging it now.”). Oneida Cnty. DSS v. Nicole W., 2007 WI 30, ¶¶28-29, 299 Wis. 2d 637, 728 N.W.2d 652 (collateral attack on prior TPR order generally disfavored), also deemed highly relevant. The court notes that collateral-attack in this context is probably limited to instances of denial of counsel, ¶26 n. 8.

The court alternatively reviews and rejects the merits. The trial court never lost competence to enter the extended CHIPS dispositional order, because tolling of the deadline was permitted under relevant provisions, §§ 48.365(6) and 48.315(1) (2005-06): one period of delay was accomplished with the consent of the child through his counsel, the GAL; and another was necessary in order to obtain an interpreter.

Counsel’s strategic decision not to introduce the client’s own written safety plan, based on counsel’s perception that the parent hadn’t complied with the plan and that introducing it would highlight noncompliance, was reasonable, ¶¶57-59.

As to Emiliano alone, Francine’s noncompliance with the CHIPS dispositional order being uncontested:

¶75      No one disputes that Emiliano loves Marcos and wants to live with Francine and go to work while she takes care of Marcos.  But wanting to comply with CHIPS conditions and actually complying with them are two different things.  The record supports the trial court’s finding that Emiliano did not understand or accept Francine’s risk to Marcos’s safety.  One Bureau worker testified that Emiliano did not understand Francine’s condition and was not able to protect Marcos.  Emiliano described Francine as “calm” in an incident where the worker described Francine making a middle finger gesture and yelling “bitch” at a neighbor.  In the Del Carmen incident, Del Carmen stopped by because she could hear in Francine’s voice over the phone that she was agitated.  Emiliano was present and seemed unaware and unconcerned about Francine’s mental health treatment and her medication regime.  He testified that he thought it was safe to leave Marcos with her now.  His acknowledgment that he could not do so without Bureau approval does not negate his lack of understanding of Francine’s threat to Marcos’s safety.

¶77      Finally, Emiliano’s reliance on Tammy W-G. is misplaced.  In that case, the supreme court addressed the test courts should apply to determine whether a parent has established a “substantial parental relationship” with a child under Wis. Stat. § 48.415(6) (the failure-to-assume ground) and the relevant time frame a court can consider in determining whether such a relationship has been developed.  See Tammy W-G., 2011 WI 30, ¶1.  The court “conclude[d] that a fact-finder should consider a parent’s actions throughout the entirety of the child’s life when determining whether [a parent] has assumed parental responsibility.”  Id., ¶23.  That is precisely what the trial court did here.  It looked at the totality of the circumstances, which included many things besides Emiliano’s written safety plan.  The trial court held that among the relevant circumstances to be considered were whether Francine and Emiliano exposed Marcos to a hazardous living environment.  Contrary to Emiliano’s assertion here, Tammy W-G. compels our conclusion that the trial court properly found that he failed to assume parental responsibility.

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