COURT OF APPEALS DECISION DATED AND FILED April 15, 2008 Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
APPEAL
from orders of the circuit court for
¶1 FINE, J.
I.
¶2 As material to this appeal,
¶3 Before accepting a person’s admission that he or she did something or failed to do something that warrants the termination of that person’s parental rights, the circuit court must: “Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.” Wis. Stat. § 48.422(7)(a). The circuit court must also be satisfied that there is a factual basis for the parent’s admission. Sec. 48.422(7)(c) (The circuit court shall “[m]ake such inquiries as satisfactorily establish that there is a factual basis for the admission.”).
¶4
II.
¶5 When a person contends that his or her admission to a ground justifying the termination of that person’s parental rights was not knowing or voluntary, there is a required two-step inquiry. First, did the circuit court comply with Wis. Stat. § 48.422(7), and, if not, second, did the person otherwise know the things about which he or she claims ignorance. Waukesha County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 364, 607 N.W.2d 607, 617 (Parent challenging his admission “must make a prima facie showing that the circuit court violated its mandatory duties and he must allege that in fact he did not know or understand the information that should have been provided at the § 48.422 hearing.”). If the parent makes the first showing, the burden shifts to the State “to demonstrate by clear and convincing evidence” that the parent nevertheless knew and understood “the information that should have been provided” by the circuit court. See ibid.
¶6 As we have seen,
¶7 Although the post-disposition court was, as it noted during
its oral decision, “very disturbed by the fact that [Jimeca H.’s lawyer]
testified that she keeps no written records of her consultation in regard to a [termination-of-parental-rights]
case,” the post-disposition court resolved any testimonial dispute between
Jimeca H. and her lawyer in favor of the lawyer: “So while it is true that there is some
conflict in the testimony regarding the recollections of [Jimeca H.] and the
recollections of [
I think in looking at the totality of the record, that the State has met their burden with regard to the second prong [that is, what Jimeca H. knew before she agreed to admit that she had abandoned her children], as shown by clear and convincing evidence, [and] that [Jimeca H.] knowingly, voluntarily, and intelligently waived her right to contest the grounds phase.
¶8 Under our standard of review, a circuit court’s findings of
fact must be given deference unless they are “clearly erroneous.” Wis.
Stat. Rule 805.17(2) (“Findings
of fact shall not be set aside unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility of the
witnesses.”); see also Steven H., 2000 WI 28, ¶51 n.18, 233
Wis. 2d at 367 n.18, 607 N.W.2d at 618 n.18. Although
By the Court.—Orders
affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1]
The Honorable Carl Ashley entered the orders terminating Jimeca H.’s parental
rights; the Honorable Glenn H. Yamahiro denied
[2]
Wisconsin Stat. § 48.426(2)
provides: “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.” Thus, in the pre-disposition grounds phase, “the
parent’s rights are paramount.” State
v.