2010AP321 Brown County Department of Human Services v. Brenda B.

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Juveniles
TPR; voluntariness of plea

Because a finding of parental unfitness does not necessarily result in an involuntary termination of parental rights, circuit courts are not obligated to inform a parent that by pleading no contest, she waives her constitutional right to parent.

“Under our statutory scheme, it is not accurate to say that a parent loses his or her constitutional right to parent if the court accepts a no contest plea during the grounds phase. Rather, the immediate consequence of the plea is that the parent will be found to be unfit. Therese S., 314 Wis. 2d 493, ¶11; Wis. Stat. § 48.424(4). Even after the parent is found to be unfit, however, the circuit court may in its discretion opt to dismiss the petition after the dispositional hearing, leaving all parental rights intact. Wis. Stat. § 48.427(2).”
“Therefore, the court was not obligated to inform Brenda that, upon acceptance of her plea, she would lose her constitutional right to parent Desmond. As the court of appeals persuasively explained in a recent unpublished opinion, ‘[b]ecause Wisconsin statutory law does not permit a court to terminate parental rights upon a finding of unfitness without completing the dispositional phase, we see no rationale for requiring a court to inform a parent that a finding of unfitness results in the automatic loss of the constitutional right to parent.’ Dane County D.H.S. v. James M., Nos. 2009AP2038 & 2009AP2039, unpublished slip op., ¶24 (Wis. Ct. App., Mar. 18, 2010).”

“Finally, the parent must be informed that by pleading no contest to grounds for termination, the parent has waived a fact-finding hearing during the phase of the proceedings in which the parent’s rights receive the utmost protection under the Constitution. Should a parent wish to contest termination after he or she is found to be unfit, that parent is left with the sole issue of whether termination of parental rights is in the best interests of the child. Once the parent is found to be unfit, it is the court’s determination about what is best for the child rather than any concern about protecting the parent’s right that drives the outcome. Therese S., 314 Wis. 2d 493, ¶16; James M., unpublished slip op., ¶24.”

Affirmed.

2010AP321 Brown County Department of Human Services v. Brenda B.

Bradley, J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Collins, Robert J., II, Green Bay

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