COURT OF APPEALS
DATED AND FILED
December 7, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
In re the termination of parental rights to Kenneth E. III, a person under the age of 18:
from orders of the circuit court for
¶1 FINE, J.
¶3 In January of 2010,
JUDGE FOLEY: I was advised by [Mr. E.’s lawyer] earlier in the afternoon, that [Mr. E.] had made a decision to stipulate to the existence of grounds for termination of his parental rights and reserve his right to contest termination at the Dispositional Phase.
The circuit court determined
Do you understand that?
JUDGE FOLEY: The reason that’s true is, if you do not stipulate-- if you did not stipulate, the only way that a reason or a basis to involuntarily terminate your parental rights could be established, is if the State came in to court and proved at a trial that there was a reason or a basis to involuntarily terminate your parental rights. Which is kind of a fancy way of saying that they would have to come in to court and prove at a trial that the facts alleged in this Petition [to terminate Mr. E.’s parental rights] were true or substantially true.
Do you understand that?
The circuit court then ensured
And there are two things you need to understand about that.
Once you stipulate that grounds exist to involuntarily terminate your parental rights, I am required by law to find you “Unfit”. It’s a requirement of the law. It’s, actually, a Constitutional requirement. And then we move to this contested Dispositional Hearing.
But the only issue at the
contested Dispositional Hearing, is whether it’s in Kenneth’s best interest to
terminate your parental rights and allow Kenneth to be adopted or is it in
Kenneth’s best interest to pursue some other alternative. [(1)] Dismiss the Petition. [(2)] Return Kenneth to your care
immediately-- which is not a practical solution or alternative at this point
because of your [incarceration] circumstances.
Although I don’t know how long you’re going to be in custody. [(3)] Leave Kenneth in his present
placement. [(4)] Order the Bureau [of
Milwaukee Child Welfare] to continue to work with you to attempt to resolve the
issues that prevent you from safely and appropriately parenting him,
anticipating some future return to your care.
[(5)] Identifying a relative as a potential guardian. Appointing a relative, a guardian, which puts
them in position of a parent for all intents and purposes. They make all the parental decisions. They have custody, et cetera, but you would
still be a legally-recognized parent.
You would have the-- presumably, a right to visit, a duty to
support. And, at some future point, the
potential of returning to court and seeking to restore your guardianship rights
But at the Dispositional Hearing, the sole issue is, what’s best for your son, adoption or one of those other alternatives.
¶4 The petition alleged three bases that, if true, would be
grounds to terminate Mr. E’s parental rights to the boy: (1)
That’s the first thing they’d have to prove.
Then they’d have to prove that
you did not or could not meet the Conditions that the Judge established for the
safe return of
Do you understand that?
¶5 The circuit court then heard from the case manager assigned to the case about the facts underlying the child-in-continuing-need-of-protection-or-services ground. She told the circuit court that:
• the child had been outside of the parental home since December of 2006;
• he was found to be in need of protection or services in June of 2007;
• a dispositional order was entered establishing the conditions the parents had to meet before the child could be returned;
• the child-in-need-of-protection-or-services order warned that failure to comply with the conditions of return could be the basis to terminate the parents’ parental rights;
• the child-in-need-of-protection-or-services order was still in effect;
• Mr. E. had not met the conditions of return;
• the Bureau helped him to meet those conditions of return but the help was unavailing because:
■ none of the visits with
the Bureau tried to provide the court-ordered services to
• the social worker did not believe that Mr. E. would be able to meet the conditions of return in the forthcoming nine months because he was on a waiting list for services and would not be released from custody within the nine-month period, and, based on Mr. E.’s history of not cooperating, she did not believe he would be able to meet the conditions of return even if he were not incarcerated.
¶6 Termination of parental rights is a two-step process. First, a fact-finder decides whether there
are facts that justify governmental interference in whatever relationship there
is between the birth-parent and his or her child. Wis. Stat. §§ 48.415, 48.424.
If there are grounds to terminate a person’s parental rights to a child,
the trial judge then determines whether those rights should be terminated, Wis. Stat. §§ 48.424(3), (4); 48.426;
48.427, and the birth parent has no special claim to the child.
¶7 As we have seen, Mr. E. raises three issues on this appeal. We address each in turn.
A. Knowing and voluntary stipulation to the first phase of the termination-of-parental-rights proceeding.
¶8 The parties agree that before the circuit court could accept
¶9 The circuit court, as it told
The trial court lacked the
authority to appoint [the maternal aunt], the guardian of Kenneth E., III, at
the dispositional hearing because: (1)
the petition to terminate parental rights had already been filed, (2) there was
no evidence that [the maternal aunt] was willing to serve as guardian, (3)
there was insufficient evidence to show that the [Bureau of Milwaukee Child
Welfare] had made reasonable efforts toward reunification, and (4) Wis. Stat. §48.427
prohibited the court from appointing a guardian at the dispositional hearing
unless it first entered an order terminating parental rights.
¶10 First, as seen, Wis.
Stat. § 48.977(2)(d) sets as a prerequisite to the appointment of a
guardian under § 48.977 “[t]hat it is not in the best interests of the child
that a petition to terminate parental rights be filed with respect to the
child.” Of course, if the circuit court
exercised its discretion and dismissed
the petition to terminate Mr. E.’s parental rights to the boy, there would not
then be a pending petition, and the
circuit court could, in compliance with § 48.977(2)(d) make a finding that it
would not be in the boy’s best interests to file a new petition. This is not
only a literal and logical reading of § 48.977(2)(d) but, as the circuit
court pointed out in its written decision, is consistent with the legislature’s
command that the best interests of the children subject to Wis. Stat. ch. 48 are “paramount.” See Wis. Stat. §§ 48.01(1), 48.426(2) (“The
best interests of the child shall be the prevailing factor considered by the
court in determining the disposition of all proceedings under this
subchapter.”); Evelyn C. R. v. Tykila S., 2001 WI 110, ¶23, 246 Wis. 2d 1, 17,
629 N.W.2d 768, 775. Thus, the
contention set out in “(1)” of the excerpt from Mr.
¶11 Second, the contentions set out in “(2)” and “(3)” of the excerpt from Mr. E.’s brief are also without
merit because the time to determine whether the maternal aunt would be willing
to serve as the child’s guardian was at the disposition hearing, and whether
the agency had in fact fulfilled its responsibilities to help Mr. E. keep the
boy would have been a matter for the State to prove at a trial on the grounds
phase, which, as we have seen, Mr. E. bypassed.
All the circuit court was obligated to do at the plea hearing was to
give to Mr.
¶12 Third, the contention set out in “(4)” of the excerpt from Mr.
¶13 In sum,
B. Factual basis.
¶14 Mr. E. also argues that he should be able to withdraw his stipulation to the continuing-need-of-protection-or-services ground in the first phase because he never specifically admitted that the Bureau of Milwaukee Child Welfare had made the required efforts to help him regain custody of his child. We disagree.
¶15 In termination-of-parental-rights cases, acceptance of a
parent’s stipulation to a ground in the first phase is governed by Wis. Stat. § 48.422. Waukesha
County v. Steven H., 2000 WI 28, ¶39, 233
Section 48.422(7) imposes four obligations on the circuit court before accepting an admission of the alleged facts in a petition. The circuit court shall: (a) address the parties present and determine that the admission is made voluntarily and understandingly; (b) establish whether any promises or threats were made to elicit an admission; (c) establish whether a proposed adoptive parent of the child has been identified; and (d) make such inquiries as satisfactorily establish a factual basis for the admission.
¶16 Significantly, the circuit court’s establishment of a factual
C. Alleged ineffective assistance of counsel.
¶17 Parents are entitled to effective assistance of counsel when
the State tries to terminate their parental rights.
¶19 First, as we have already pointed out why, contrary to Mr. E.’s
contention, the circuit court did
have the legal authority to appoint a guardian if it dismissed the
termination-of-parental-rights petition at the disposition phase. Thus,
¶20 Second, assuming, but not deciding, that Mr. E.’s circuit-court
lawyer was deficient for not adequately exploring before Mr. E. agreed to not
contest the first phase whether the boy’s maternal aunt would have agreed to
being the boy’s guardian rather than adopting him, Mr. E. has not shown Strickland
prejudice; that is, he has not demonstrated that had he: (1) known that the boy’s maternal aunt would
not agree to a guardianship, and that, as a result (2) he would have opted for
a jury trial on the three grounds alleged in the petition, and, had he so
opted, “the result of the proceeding would have been different.” See
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
circuit court also terminated the mother’s parental rights to
 WISCONSIN STAT. § 48.977(2) reads:
(a) That the child has been adjudged to be in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9), (10), (10m), (11), or (11m) or 938.13(4) and been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365 or that the child has been so adjudged and placement of the child in the home of a guardian under this section has been recommended under s. 48.33(1) or 938.33(1).
(b) That the person nominated as the guardian of the child is a person with whom the child has been placed or in whose home placement of the child is recommended under par. (a) and that it is likely that the child will continue to be placed with that person for an extended period of time or until the child attains the age of 18 years.
(c) That, if appointed, it is likely that the person would be willing and able to serve as the child’s guardian for an extended period of time or until the child attains the age of 18 years.
(d) That it is not in the best interests of the child that a petition to terminate parental rights be filed with respect to the child.
(e) That the child’s parent is neglecting, refusing or unable to carry out the duties of a guardian or, if the child has 2 parents, both parents are neglecting, refusing or unable to carry out the duties of a guardian.
(f) That the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to make it possible for the child to return to his or her home, while assuring that the child’s health and safety are the paramount concerns, but that reunification of the child with the child’s parent or parents is unlikely or contrary to the best interests of the child and that further reunification efforts are unlikely to be made or are contrary to the best interests of the child or that the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to prevent the removal of the child from his or her home, while assuring the child’s health and safety, but that continued placement of the child in the home would be contrary to the welfare of the child, except that the court is not required to find that the agency has made those reasonable efforts with respect to a parent of the child if any of the circumstances specified in s. 48.355(2d)(b)1. to 5. applies to that parent. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the guardianship order. A guardianship order that merely references this paragraph without documenting or referencing that specific information in the order or an amended guardianship order that retroactively corrects an earlier guardianship order that does not comply with this paragraph is not sufficient to comply with this paragraph.