Sheboygan County DH&HS v. A.W., Sr., 2024AP907, District II, 10/30/24 (one-judge decision; ineligible for publication); case activity
The COA rejects A.W., Sr.’s claims that the circuit court failed to take testimony to support the finding of unfitness when he pled no contest to grounds, and that the court’s decision to terminate his parental rights at disposition was an erroneous exercise of discretion.
This TPR follows a CHIPS case for “Adam’s” son, “Sam.” Two and a half years after the original CHIPS order, Sheboygan County filed a petition to terminate Adam’s parental rights, asserting as grounds continuing chips under Wis. Stat. § 48.415(2), and failure to assume parental responsibility under § 48.415(6). (¶3). Adam pled to the first ground in exchange for the county’s agreement to dismiss the second ground. (¶4). After accepting Adam’s plea, the court asked the county if it intended to call the social worker, and the attorney responded that he had planned to present her testimony at the disposition hearing to “go through some of the facts just to support the counts.” Adam’s attorney stated that proceeding in this way was acceptable to him. (¶4).
At the disposition hearing, Adam appeared by phone because he was incarcerated. (¶5). The social worker, foster mother, and Adam testified. The circuit court concluded that it was in Sam’s best interests to terminate Adam’s parental rights.
Adam appealed, and then filed a motion for remand and postdisposition motion. At the postdisposition fact-finding hearing, the circuit court found “that there is a factual basis for [Adam] to not contest the allegations in the petition as it relates to” the ground of continuing need of protection or services, and concluded that Adam had not shown a basis to withdraw his plea. (¶14).
The COA concludes that Adam is correct that the circuit court erred when it failed to take testimony at the time of his no contest plea, as required under § 48.422(3). “However, our supreme court has held that this error is harmless when the factual basis for the allegations in the petition may ‘be teased out of’ other parts of the record.” (¶18) (quoting Waukesha County v. Steven H., 2000 WI 28, ¶¶56-58, 233 Wis. 2d 344, 607 N.W.2d 607). After reviewing the record, the COA concludes the error was harmless and Adam was not prejudiced. (¶23).
As to disposition, the COA goes through each of the required factors, and summarizes Adam’s argument “complaints” as “largely relate to the grounds phase question of whether the County made reasonable efforts to assist him in meeting the conditions for the safe return of his child”–an issue related to grounds. (¶34). Ultimately, Adam failed to show that the circuit court’s determination that he and Sam did not have a substantial relationship was based on clearly erroneous factual findings. (¶35).
