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TPR – Knowing Admission to Grounds, Ineffective Assistance

State v. Kenneth E., 2010AP1520, District 1, 12/7/10

court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate

(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs.  Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice, unless and until made clear that that practice has changed.)

TPR – Knowing Admission to Grounds

Parent’s stipulation to grounds must be made “voluntarily and understandingly,” ¶8, citing, Kenosha County Dep’t. of Human Servs. v. Jodie W., 2006 WI 93, ¶¶25–26. Kenneth E. unsuccessfully challenges his stipulation on several grounds. The court of appeals rejects Kenneth E.’s argument that the trial court misleadingly informed him that, if the petition were dismissed at the disposition phase, the court could appoint a relative as the child’s guardian. To the contrary, the court holds, upon its dismissal of the petition, the circuit court would be empowered to order that another petition not be filed, thus clearing the way for a guardianship appointment, ¶10. As to challenges based on insufficient evidence that a relative would in fact be willing to serve as guardian, and that the local Child Welfare bureau made adequate reunification efforts: those trains had already left the station. These were matters relevant to the grounds phase. The circuit was obligated merely to inform Kenneth E. of the consequences of his stipulation, and it fulfilled this obligation, ¶11.

TPR – Admission to Grounds, Factual Basis

The court rejects challenge to the factual basis for Kenneth E.’s admission to grounds (CHIPS), where the Child Welfare case manager informed the trial court of its efforts at reunification and Kenneth E.’s failure to cooperate with those efforts, ¶15.

TPR – Ineffective Assistance

The court rejects an ineffective-assistance claim premised on counsel’s advice that Kenneth E.  admit to grounds and they would argue for guardianship at disposition. The argument assumes that counsel erred in thinking a guardianship appointment was a possible outcome at disposition; the court rejected that assumption in its prior discussion, ¶19. Moreover, he hasn’t shown “prejudice,” in the sense that the result of the proceeding would have been different: “he has not even contended, no-less shown, that he would have prevailed at a first-phase trial on all of the grounds alleged in the petition,” ¶20.

But is that the correct test for prejudice? At least in the guilty plea context, the IAC test for prejudice is whether “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To the extent a TPR grounds-phase admission is analogous to a criminal case guilty plea, the focus of the prejudice test ought to be on whether non-deficient advice would have resulted in a grounds-phase contest, not whether the parent would have prevailed.

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