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TPR orders withstand multiple challenges

State v. C.R.R./State v. M.R., 2015AP1771 & 2015AP1772, District 3, 4/13/16 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects various challenges to orders terminating the parental rights C.R.R. and M.R., the mother and father, respectively, of A.M.R.

Sufficiency of the evidence that the parents received written TPR warnings: The initial CHIPS dispositional order and a subsequent revised CHIPS dispositional order were put into evidence, and both had written TPR warnings attached; however, the parents contend there was no evidence that the orders were actually provided to the parents or received by them as required by § 48.356(2). The court disagrees. The dispositional orders state that “[t]he parent(s) who appeared in court have been orally advised of the applicable grounds for termination of parental rights (TPR) and the conditions that are necessary for a safe return to the home or a restoration of visitation rights. Written TPR Warnings are attached.” (Emphasis added.) Both orders also contain a distribution list identifying the parents as recipients of those orders, and C.R.R. and M.R. did not deny that they were served with the warnings. (¶¶10, 14-15).

The circuit court’s failure to consider all possible dispositions: The circuit court did not err in failing to list every possible statutory disposition available, whether applicable or not, and rule it out on the record, as there is no authority requiring the court to do so. (¶16). As to the parents’ claim the court failed to consider the specific potential disposition of guardianship instead of termination, the parents didn’t themselves raise guardianship as an option, and the court in fact did say it had considered the option. (¶¶17-19). Finally, contrary to the parents’ argument, the record shows the court did weigh A.M.R.’s wishes and the substantial relationship between A.M.R. and the parents when making its termination decision, as § 48.426(3) requires. (¶¶20-22).

Evidence foster parent would allow “open” adoption: There was evidence that the foster parent would allow the parents to have contact with A.M.R. if termination occurred. (¶¶8, 11). Citing State v. Margaret H., 2000 WI 42, ¶¶29-30, 234 Wis. 2d 606, 610 N.W.2d 475, he court rejects the parents’ claim this is an illusory, unenforceable promise that the court shouldn’t be able to consider in its disposition decision. (¶¶23-24).

Two other unpublished TPR decisions (noted here and here) reach the same conclusion about the admissibility of this kind of evidence.

Issues regarding A.M.R.’s testimony: The circuit court granted the GAL’s request to excuse A.M.R. from having to appear and testify at the grounds phase of the trial, at least in open court. A.M.R. did talk to the judge hearing the case in an unrecorded conference in chambers, with only the GAL present. The parents’ forfeited any claim that it was improper to exclude A.M.R. from testifying in open court at the grounds phase. Assuming it was error not to record the in-chambers conference, that error was harmless because, as summarized by the judge on the record, A.M.R.’s statements were favorable to his parents. (¶¶5-7, 9, 25-32).

Failure to appoint adversary counsel for A.M.R.: A.M.R. turned 12 during the proceedings, and the parents argue § 48.23(1m)(b)2. required the appointment of counsel for him. The court concludes the plain language of the statute governs appointment of counsel in CHIPS proceedings, not TPR proceedings, and therefore the circuit court didn’t err in not appointed adversary counsel for the child in this case. (¶¶33-37).

Some of these issues are also raised in the alternative under the guise of ineffective assistance of counsel claims, and the court finds either no deficient performance or no prejudice. (¶¶38-46).

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