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Trial court erred by failing to take testimony at TPR plea hearing, but COA affirms based on lack of prejudice

State v. I.A.A., 2023AP1723-24, 2/28/24, District 2 (one-judge decision; ineligible for publication); case activity

Long story short, the court of appeals affirms the orders terminating I.A.A.’s (“Ivy’s”) parental rights despite the circuit court’s admitted failure to comply with Wis. Stat. § 48.422(3)’s mandate to take testimony related to grounds at Ivy’s no contest plea hearing. Because the court was able to “tease out” all the necessary elements to grounds from “other witnesses at other hearings,” the court concludes that Ivy was not prejudiced and that the error was harmless. Op., ¶33.

The focus of the court’s opinion is clear:

“The key to these appeals is not determining whether the circuit court violated WIS. STAT. § 48.422(3) by failing to hear testimony in support of the allegations in the petitions for termination of Ivy’s parental rights—it did. Rather, the question is whether Ivy was prejudiced by the court’s error. See Steven H., 233 Wis. 2d 344, ¶2. This court is instructed to review “the entire record and the totality of the circumstances” to determine if there was prejudice to Ivy. Id., ¶4.” Op., ¶17.

Pursuant to Steven H., the court thereafter proceeds to dig into the record to determine whether a factual basis exists for each element of the continuing CHIPS ground to which Ivy pled no contest. In doing so, however, the court claims that it is not eager and should not be expected to do so in “other appeals:”

As noted in the remainder of this opinion, this court delved into the records, documents, transcripts, and orders in an attempt to tease out the necessary evidence. That is not typically something that appellate courts are wont to do. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam). However, given the extraordinarily important issues in these expedited termination of parental rights appeals, and the fact that all children deserve finality, permanence, and certainty with respect to their forever homes, in this instance, the court did hunt through the Record. That is not to be expected in other appeals. Op., ¶20, n.8.

Thereafter, the court proceeds to examine the full record and conclude that each element of the continuing CHIPS ground was “established outright” by witness testimony at other hearings and by exhibits admitted into evidence by the circuit court. Op., ¶¶20-30. Therefore, while the court expresses its “grave concerns” about the court’s failure to take testimony in support of Ivy’s no contest plea, it concludes that the error was harmless. Op., ¶31.

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