State v. J.T., 2020AP1151, 1/5/21, District 1 (1-judge opinion, ineligible for publication); case activity

E.W. was placed in foster care shortly after birth. Her dad, J.T., was incarcerated then. He remained so a year later when the State filed a TPR petition against him on the grounds that he failed to establish a substantial relationship with E.W. and failed to exercise significant responsibility for her. According to the State, J.T. failed to attend E.W.’s medical appointments and participate in decisions about her education. He pled no contest, and the circuit court terminated his parental rights.

Plea withdrawal. On appeal, J.T. first argued his plea was not knowing, intelligent, and voluntary because the court did not explain the “substantial parental relationship element to him by reading the corresponding jury instruction defining it. The court of appeals held: “there is no ‘specific checklist’ for a circuit court in conducting a colloquy, and ‘[t]he questions to be asked depend upon the circumstances of the case.’” Brown Cnty. DHS v. Brenda B., 2011 WI 6, ¶57, 331 Wis. 2d 310, 795 N.W.2d 730. Opinion, ¶12. The court of appeals added:

The circuit court is only required to establish that J.T. understand the nature of the grounds alleged in the petition. The instruction defines the nature of a substantial parental relationship as “acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of” of the child. The circuit court read from the petition during the plea colloquy and summarized the nature of the grounds alleged in the petition as J.T. failed to “exercise[] and accept[] sufficient responsibility for the daily supervision, education, protection and care” of E.W. This was all the circuit court was requiredto do. Opinion, ¶19

Ineffective assistance. J.T next argued that his lawyer was ineffective for failing to explain to him the “substantial parental relationship” and his incarceration factored into it. the court of appeals held that J.T. failed to prove deficient performance. While his lawyer couldn’t recall the specifics of her conversation with him, it was her practice to discuss the applicable jury instructions with her TPR clients. She knew that J.T.’s incarceration was an important issue, and she would have explained it to him. In fact, the record showed that she had asked the circuit court to read the instruction regarding incarcerated parents and how it relates to parental responsibility. Opinion, ¶¶25-26.

Right to counsel of choice. Finally, by the time J.T. pled he was on his 3rd lawyer and his 4th trial date. He disagreed with his 3rd lawyer about a number of matters, and so a few days before trial he told the court that he had spoken with a 4th attorney and wanted to hire him. The court held that he could hire a new lawyer but it would not change the trial date.

A TPR defendant is entitled to retain the counsel of his choosing at his own expense. Wis. Stat. §48.23(5). However, the “right to select his own counsel cannot be manipulated so as to obstruct the orderly procedure for trials or to interfere with the administration of justice.” Phifer v. State, 64 Wis. 2d 24, 30, 218 N.W.2d 354 (1974). The court of appeals suggests that J.T. was manipulating the process because the trial had already been adjourned several times, J.T. failed to offer proof that the 4th attorney was willing to accept the case, and the court permitted the substitution provided the trial date did not change. Opinion, ¶¶27-32. Decision affirmed.

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