COA: Circuit court does not lose competency in TPR proceeding when it fails to comply with statutory requirement to hear testimony to support grounds for termination before accepting plea.
Barron County v. K.L.P., 2026AP460 & 2026AP461, 7/21/26, District III (ineligible for publication); case activity
The COA held that the circuit court did not lose competency to enter disposition orders in an action to terminate parental rights if it accepts a no-contest plea to the grounds for termination without hearing testimony, even if Wis. Stat. § 48.422(3) requires testimony.
Barron County filed petitions to terminate “Karen’s” parental rights (TPR) to “Ursa” and “Yasmin” and alleged that grounds existed for abandonment under Wis. Stat. § 48.415(1)(a)2., continuing need of protection or services under § 48.415(2)(a), and failing to assume parental responsibility under § 48.415(6). At the plea hearing when Karen pled no contest to each ground, her attorney acknowledged the petitions provided factual bases for the circuit court to accept the pleas. The court accepted the pleas and found her unfit. At the dispositional hearing, testimony was provided by the children’s social worker, the children’s therapist, the children’s father, and Karen. The court determined it was in the children’s best interests to terminate Karen’s parental rights and entered orders accordingly. (¶¶ 3-5).
Karen filed a postdisposition motion to vacate the TPR orders and withdraw her no-contest pleas because the circuit court accepted the pleas without hearing testimony at the plea hearing in support of the allegations for grounds to terminate. Karen argued that the circuit court did not have competency to accept her pleas because Wis. Stat. § 48.422(3), which states that if “the petition is not contested the court shall hear testimony in support of the allegations in the petition,” required the court to hear testimony before it accepted her pleas. The circuit court denied the postdisposition motion and Karen renewed her argument in the court of appeals. (¶ 6).
Although the COA recognized that Karen forfeited her argument regarding the circuit court’s competency because she did not raise it before the dispositions were entered, the COA disregarded forfeiture and addressed the merits of Karen’s appeal. (¶ 8).
The COA assumed without deciding that § 48.422(3) requires the circuit court to take supporting testimony at the time of a no-contest plea. However, it concluded that the directive is not central to Chapter 48’s statutory scheme and therefore the circuit court did not lose competency when it failed to hear testimony at the plea hearing. (¶ 15).
The COA cited SCOW’s 2000 decision in Steven H. that found harmless error when the circuit court violated § 48.422(3) by accepting his no-contest plea to TPR grounds without hearing testimony in support of the allegations in the petition. SCOW held that, when the entire record was examined, Steven H. was not prejudiced because the factual bases for the allegations was established from witnesses’ testimony at other hearings and he did not challenge the allegations. (¶ 16).
The COA interpreted Steven H. to show that the purpose of § 48.422(3) – safeguarding a parent’s interest in the accuracy and justice of the TPR proceeding – can be accomplished without strictly complying with the statute’s “assumed mandate” for supporting testimony at the time of the TPR plea. (¶ 17). The COA explained:
[A]s long as there is a factual basis for a parent’s admission to the allegations in the petition, a parent’s interest in the accuracy and justice of the TPR proceeding can be met anytime during the TPR process prior to the entry of an order terminating parental rights. The ability of the court to verify the facts supporting the TPR grounds through the proceeding as a whole ensures that the parent’s rights will not be terminated precipitously, arbitrarily, or capriciously. (¶ 17).