Kenosha County DC&FS v. J. M. C., III

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 13, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1824 Cir. Ct. No. 2023TP10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.A.C., A PERSON UNDER
THE AGE OF 18:

KENOSHA COUNTY DIVISION OF CHILDREN AND FAMILY SERVICES,

PETITIONER-RESPONDENT,

V.

J.M.C., III,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
JODI L. MEIER, Judge. Affirmed.
No. 2023AP1824

¶1 GROGAN, J.1 JMC appeals from an order terminating his parental
rights to his daughter, Janice.2 JMC raises two issues on appeal. First, he claims
the circuit court erroneously exercised its discretion when it denied his request for
a new lawyer. Second, he asserts that the circuit court failed to take testimony as
required by WIS. STAT. § 48.422(3) when he pled no contest at the grounds
hearing and that this error was prejudicial. This court affirms.

I. BACKGROUND

¶2 Janice was born in July 2020 to an unwed mother. In November
2020, the circuit court found Janice to be a child in need of protection or services
(CHIPS). Although Janice was returned to her mother’s home in late 2020, she
was permanently removed in January 2021 and placed in foster care. JMC was
adjudicated Janice’s father in January 2021.

¶3 Termination of parental rights (TPR) notices were attached to the
dispositional, change of placement, revision, and permanency hearing orders, and
the orders entered after the paternity adjudication were provided to JMC. Neither
parent satisfied the conditions required to end the CHIPS order, and in January
2023, the Kenosha County Division of Children and Family Services (County)
filed a Petition seeking to terminate parental rights (Petition). This appeal
involves only JMC. Grounds alleged to terminate JMC’s parental rights were:
(1) abandonment (WIS. STAT. § 48.415(1)(a)2 and 3); (2) failure to assume

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court uses a pseudonym for the child for confidentiality purposes. See WIS.
STAT. RULE 809.81(8).

2
No. 2023AP1824

parental responsibility (§ 48.415(6)); and (3) continuing CHIPS (§ 48.415(2)).
JMC contested the Petition, and the State Public Defender appointed a lawyer to
represent him.

¶4 It is undisputed that Janice never lived with JMC as he has been
incarcerated during much of her life—first from February 2021 through
October 2022 and then again from January 2023 through at least the time of this
appeal. It is also undisputed that during the few months JMC was released on
extended supervision, he had six or seven supervised visits with Janice in
November and December 2022.

¶5 JMC’s adjourned initial appearance occurred on March 31, 2023. At
that hearing, with JMC present, the County asked the circuit court to take judicial
notice of the certified CHIPS records and all the applicable orders in the case. The
County listed the orders and indicated that each of the substantive orders included
the required TPR warnings. The court took judicial notice of the orders and
confirmed the orders gave the required TPR warnings. JMC did not object.
Janice’s mother failed to appear at the hearing, and the court therefore heard
testimony from Alesha Brereton—the County’s case manager handling Janice’s
case—to establish grounds existed with respect to Janice’s mother. Her testimony
confirmed that Janice had been placed outside of the parental home pursuant to a
court order since January 2021.

¶6 The circuit court held a final jury status conference for JMC’s
grounds hearing on May 18, 2023. At that conference, JMC’s lawyer argued
pretrial motions and addressed jury instructions. At no time during that
conference did JMC express concerns about or problems with his lawyer’s
representation. A few days later, on May 22, 2023, all parties returned to court for

3
No. 2023AP1824

the factfinding jury trial to determine whether grounds existed to terminate JMC’s
parental rights. Before the jury was brought in, however, JMC’s lawyer advised
the circuit court that JMC “no longer wishes to have me represent him” and that he
wanted a different lawyer.3 After confirming with JMC that he wanted a new
lawyer, the circuit court asked for the County and guardian ad litem’s (GAL)
positions.

¶7 The County asked the circuit court to deny the motion, noting the
request was coming on the day of trial and that JMC had a history of requesting
new counsel on the day of trial as a delay tactic in other cases. The GAL indicated
it took no position but noted “this is the day for trial and it does serve the child[]’s
best interests that this be done expeditiously.” The court denied JMC’s request for
a new lawyer because he provided no reason and noted that at the jury status
conference just a few days earlier, JMC had no issue with his current lawyer.

¶8 As the circuit court moved on to address jury selection, JMC
interjected: “Do I have to be here? Because evidently y’all already done made
y’all decision on what y’all gonna do. I don’t even have no rights. Everything I
ask for get denied.”

¶9 The circuit court then allowed JMC to explain why he requested
different counsel. JMC stated he thought his current lawyer was ineffective—
seemingly in reference to the court’s denial of his motion seeking an impossibility

3
The transcript from that hearing reflects that there was a discussion about JMC’s wish
to hire new counsel that initially occurred off the record. Specifically, JMC’s counsel stated that
he had “mentioned before off the record” but wanted “to put on the record [JMC] has indicated at
this time he no longer wishes to have me represent him.” There is no indication, however, as to
whether any additional information related to JMC’s request was discussed off the record.

4
No. 2023AP1824

instruction at the final jury status conference a few days prior—and that he had
just realized it “last week[,]” and he continued with comments about his criminal
matters, including comments about a search warrant, failure to get discovery,
wanting to file a motion to suppress, and being put in prison. JMC believed that
based on all of this, he should ask for new counsel in the TPR proceeding. JMC
continued to assert to the court that it was the County’s negligence that put him in
this position, that the County made false allegations against him, and that the
County failed to do its job. At the end of his remarks, JMC said: “That’s all I
wanted to say, Your Honor. I’m all right now.”

¶10 After the circuit court said, “Okay. That’s okay[,]” JMC told the
court that his cases were on appeal and asked the court to put the factfinding trial
on hold until his appeals were decided. The court indicated it would not put the
factfinding trial on hold for JMC’s appeals, that it had not predetermined the
matter, and that it is the jury that would decide whether grounds existed to
terminate JMC’s parental rights. The court then answered JMC’s question about
whether he needed to stay for the factfinding trial:

If you -- I’m not -- am I gonna chain you down? I know
you’re in custody so when you’re transported you are
cuffed and whatnot, but I’m not gonna chain you to the
floor. If you don’t want to be here then I will find you in
default because you do have to appear, period.

So unless you want to do a voluntary consent. Unless
you want to do a no contest to this phase. You can do that
if you want, but yeah. You do need to be present at all
court hearings or you will be found in default. Did you
want an opportunity?

¶11 JMC’s counsel then interjected and asked for an opportunity to talk
to JMC, at which point the circuit court took a recess for thirty-six minutes so they
could confer. When court resumed, JMC decided to enter a no contest plea to the

5
No. 2023AP1824

abandonment allegation and to forgo the factfinding trial, and he signed a plea
questionnaire and waiver of rights form to that effect. In that plea questionnaire,
JMC agreed “that there are enough facts in the petition for the jury/court to find
that there are grounds to terminate my parental rights to the above named child,
and I do not object to the judge doing so.” The circuit court had JMC sworn in
and conducted a lengthy plea colloquy during which it confirmed JMC had read
the plea questionnaire/waiver of rights form, understood it, and signed it.

¶12 The circuit court’s plea colloquy included, as relevant to JMC’s
appeal, the following exchange:

THE COURT: And as I’ve stated just a few minutes
ago and you confirmed that it is your decision to enter a no
contest plea only to grounds in the ground of three-month
abandonment in this first phase of the termination of
parental rights trial; is that correct?

[JMC]: Yes.

THE COURT: Did you discuss that decision with your
attorney?

[JMC]: Yes.

THE COURT: Did you need any more time to discuss
your decision with your attorney?

[JMC]: No.

….

THE COURT: Do you understand that by entering a no
contest plea to grounds you are only conceding that there is
clear, convincing and satisfactory evidence as to the
grounds alleged by the State, but you’re as it relates to the
three-month abandonment ground because that’s the one
you’re pleading to? Not the other ones.

[JMC]: Yes.

….

6
No. 2023AP1824

THE COURT: Are you satisfied with your attorney and
the representation that your attorney has provided to you to
date?

[JMC]: Yes.

(Emphases added.)

¶13 At the conclusion of the colloquy, the circuit court accepted JMC’s
no contest plea and found:

that his waiver and no contest plea is being made freely,
voluntarily, intelligently and with full understanding of the
nature of the proceedings; the potential consequences of his
decision and all the rights that he has and is giving up by
entering a no contest plea. The Court does accept his
waiver and his no contest plea to the three-month
abandonment ground.

The Court finds that there’s a factual basis for the
allegation in the petition and based upon [JMC]’s waiver of
right to contest the three-month abandonment ground in the
petition I’ve accepted that and based on the entry of
[JMC]’s no contest plea to the three-month abandonment
ground which the Court has accepted the Court does now
find that the grounds for termination of parental rights as it
relates again to the three-month abandonment ground have
been proven by clear, convincing and satisfactory evidence.

And based on the finding of grounds I am mandated to
find that [JMC] is unfit.

¶14 The circuit court set the dispositional hearing for June 21, 2023.
However, on that date, JMC’s lawyer requested an adjournment due to the fact
that JMC’s incarceration out of town prevented them from being able to prepare.
The court adjourned the dispositional hearing until June 29, 2023. At the
June 29th hearing, only Brereton, the County’s case manager, testified. Brereton
testified that she prepared a dispositional report for the court on June 12, 2023, and
asked that the report be incorporated into her testimony. As material here,
Brereton testified:

7
No. 2023AP1824

 Janice was removed from her mother’s home in January 2021
and placed in foster care;

 JMC’s last contact with Janice was in December 2022, and he
had not had regular contact with the foster parents or the County
since January 2021;

 JMC sent letters to Brereton expressing that he loved and missed
Janice;

 Brereton provided JMC with envelopes so he could mail letters
to Janice through Brereton, but JMC failed to write any letters to
Janice;

 Janice never lived with JMC;

¶15 When asked, Brereton also confirmed that she was incorporating
into her “testimony the contents of the court report that [she] filed regarding this
case[.]” That report primarily addressed the history of Janice’s removal from her
mother’s home and her parents’ respective histories, cooperation with the County,
and failure to comply with the conditions of return.

¶16 In addition to her testimony and the incorporated report, Brereton
had also previously signed and filed an affidavit that was attached to the Petition.
That affidavit included, as relevant here, the following: (1) pursuant to a court
order, Janice “was placed outside the home of a parent … since January 22, 2021,
a period of longer than six months”; (2) “[t]he court’s dispositional, change of
placement, revision, and permanency hearing orders have been reduced to writing,
and all include written termination of parental rights warnings, pursuant to [WIS.
STAT. § ]48.356(2)”; (3) copies of these orders and the “written termination of
parental rights warnings[] were provided to the parents”; (4) JMC “received verbal
termination of parental rights warnings” when he appeared in court “on
January 22, 2021, July 6, 2021, February 4, 2022, and July 8, 2022”; and (5) JMC

8
No. 2023AP1824

abandoned Janice under WIS. STAT. § 48.415(1)(a)2 because he failed to visit or
communicate with her for “a period of longer than three months.”

¶17 JMC did not testify at the dispositional hearing; however, after his
lawyer made arguments on his behalf, JMC read a statement in which he blamed
the County for not alerting him when Janice was removed from her mother’s home
or about Janice’s hospitalization, and he also said that while the County worked
hard to try to help Janice’s mother, it did nothing to help him. He further stated
that when he was released from prison, he made efforts to have contact with
Janice.

¶18 The circuit court found it was in Janice’s best interests to terminate
JMC’s rights. It acknowledged that although JMC expressed love for Janice and
attempted visits with her during the short time he was on extended supervision,
JMC nevertheless returned to prison. The court agreed with JMC that his
incarceration impacted his ability to actively parent Janice, particularly because he
had been incarcerated for most of her life, but then observed that it was ultimately
JMC’s choices that created those circumstances. The court entered the TPR order,
and JMC appealed.

¶19 After filing his appeal, however, JMC filed a motion to remand to
the circuit court, which this court granted. Upon remand, JMC filed a
postdisposition motion seeking withdrawal of his no contest plea on the ground
that the circuit court accepted his no contest plea without taking testimony to
support the allegations in the Petition as required by WIS. STAT. § 48.422(3). JMC
also sought to have the TPR order vacated. The postdisposition motion did not
challenge the circuit court’s denial of his request for a new lawyer.

9
No. 2023AP1824

¶20 The postdisposition court held a hearing on JMC’s postdisposition
motion in November 2023. No witnesses testified—the court simply heard
argument from both sides. JMC’s lawyer argued only that the circuit court
violated WIS. STAT. § 48.422(3) by not taking testimony at the time of JMC’s no
contest plea, whereas the County, which seemingly agreed that the circuit court
had erred, argued there was nevertheless sufficient evidence in the Record as a
whole that supported the abandonment allegation. The County contended that
JMC was not prejudiced despite the error.

¶21 The postdisposition court agreed with the County. It admitted it had
erred in failing to take testimony at the time of JMC’s plea as required by WIS.
STAT. § 48.422(3) but found that JMC was not prejudiced because there was
sufficient evidence in the entire Record to prove abandonment grounds. Relying
on Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d
607, it held that because the factual basis to support the abandonment grounds
alleged in the Petition could “be teased out of the testimony of other witnesses at
other hearings when the entire record is examined[,]” its error did not cause
prejudice. (Quoting id., ¶58.)

¶22 In explaining why its error was not prejudicial, the postdisposition
court addressed both elements needed to establish abandonment in the context of
the Record as a whole. With respect to the first element—whether the child was
placed outside the parental home pursuant to a court order that contained the
termination of parental rights notice required by law—the court concluded “that
information is easily ascertainable by the review of the entire termination of
parental rights file.” It explained that at the March 31, 2023 hearing, it “took
judicial notice of documents, certified documents, that were tendered by the
[County]. Specifically the dispositional order in the underlying CHIPS matter.

10
No. 2023AP1824

Also, an order for a change of placement with [TPR] notice. An in home to out of
home placement filed January 22nd of 2021.” The court then went through each
of the orders and explained that each placed Janice outside of the parental home
and included the proper TPR notices. Thus, it concluded that the first element of
the abandonment ground had been proven.

¶23 With respect to the second element—whether JMC failed to
communicate or visit with Janice for a period of three months or longer—the
postdisposition court found Brereton’s testimony at the dispositional hearing
provided sufficient proof. The court noted Brereton testified that there was a
period of twenty months (February 6, 2021, to October 11, 2022) when JMC failed
to visit with or communicate with Janice. The court also observed that JMC did
not challenge Brereton’s testimony, the contents of her report, or the incorporation
of her report into her verbal testimony.

¶24 Accordingly, the postdisposition court denied JMC’s postdisposition
motion on the basis that its failure to take the statutorily required testimony at the
time of JMC’s no contest plea did not cause prejudice because “facts supporting
the allegation in the petition to which [JMC] entered his no contest plea, the
underlying facts … are clear from the entire record and witness testimony at other
hearings.”

¶25 JMC appeals.

II. DISCUSSION

¶26 JMC makes two arguments on appeal: (1) the circuit court erred in
denying his request to fire his lawyer on the day of the factfinding trial; and (2) the

11
No. 2023AP1824

circuit court erred in failing to take testimony required by statute at the time he
pled no contest to abandonment, which prejudiced him.

A. Request for a new lawyer

¶27 JMC believes the circuit court erroneously exercised its discretion in
denying his request for a new lawyer. Whether to grant a litigant’s request for
new counsel is discretionary, and on appeal, this court must therefore determine
whether the circuit court’s denial was an erroneous exercise of its discretion. See
State v. Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988). In reviewing the
circuit court’s decision, appellate courts are to “consider a number of factors
including” “the adequacy of the court’s inquiry,” “the timeliness” of the request,
and “whether the alleged conflict between the defendant and the attorney was so
great that it likely resulted in a total lack of communication that prevented an
adequate defense and frustrated fair representation of the case.” Id. at 359.

¶28 Here, JMC contends the circuit court erroneously exercised its
discretion primarily because it failed to make a “full inquiry into [his] reasons for
requesting a change of counsel.” See id. at 361. JMC concedes that the timing of
his request made on the day the grounds trial was set to begin was not ideal but
argues there are circumstances when such timing is necessary.

¶29 As noted above, Lomax requires that this court consider three
specific factors in reviewing the circuit court’s denial; however, in identifying
those three factors, the Lomax court indicated that these three specific factors
were among “a number of factors” to be considered. See id. Having reviewed the
Record, this court cannot conclude, based on Lomax and the totality of the
circumstances, that the circuit court erroneously exercised its discretion in denying
JMC’s request.

12
No. 2023AP1824

¶30 Here, it is clear that the adequacy of the circuit court’s inquiry into
JMC’s request was insufficient under the first Lomax factor as the circuit court did
nothing more than ask JMC to confirm that he wanted a new lawyer prior to
denying the request. However, shortly thereafter, the circuit court, in response to
JMC’s frustration, allowed JMC an opportunity to voice his concerns and
frustrations with limited interruption before maintaining the denial of his request.
When JMC concluded his statement—much of which related to his overall
frustration with the TPR process rather than actual frustration with his lawyer—he
told the court “[t]hat’s all I wanted to say, Your Honor. I’m all right now.” That
JMC was primarily frustrated with the process rather than his lawyer was
confirmed later in the very same hearing when JMC confirmed, in response to the
court’s question as to whether he was “satisfied with [his] attorney and the
representation that [his] attorney has provided [him] to date[,]” that he was. Thus,
although the circuit court failed to engage directly with JMC as to why he had
requested a new lawyer, JMC himself confirmed during the same hearing that he
was satisfied with his lawyer despite the request. This supports the conclusion that
the circuit court’s discretion was not erroneously exercised.

¶31 Further supporting that conclusion is the second Lomax factor—the
timing of JMC’s request, which occurred on the morning of the grounds trial just
before the circuit court sought to have the jury brought up. While there may be
circumstances in which such a request is timely, there is simply nothing in the
Record that would support that conclusion here. To the contrary, the Record
indicates that JMC has made similar last-minute requests for a new lawyer in other
proceedings. While having made similar last-minute requests in other cases is not
dispositive, this history of similar requests weighs against JMC where, as here,
JMC failed to explain why he waited to make his request until the jury trial was

13
No. 2023AP1824

about to begin—particularly since, as the circuit court noted, JMC had just
appeared in the courtroom with counsel a few days earlier.

¶32 As to the third Lomax factor, JMC did not identify a specific conflict
with his lawyer, let alone suggest such conflict “was so great that it likely resulted
in a total lack of communication that prevented an adequate defense and frustrated
a fair presentation of the case.” See id., 146 Wis. 2d at 359. And, in any event,
JMC’s conduct during the course of the same hearing suggested no conflict
existed. For example, shortly after JMC’s lengthy statement to the circuit court,
JMC and his lawyer met for over thirty minutes to discuss whether JMC wished to
proceed with the jury trial or to enter a plea to grounds, and at no point thereafter
did JMC indicate that he had any inability to communicate with his lawyer. In
fact, it was after that conversation that JMC confirmed that he was satisfied with
his lawyer’s representation.

¶33 In addition to the three Lomax factors—which again are only among
“a number of factors” to be considered on appeal—this court notes that JMC,
despite having been granted a remand from this court to raise postdispositional
arguments, did not raise this issue in his postdispositional motion or at the
postdispositional hearing itself. As the Lomax court noted, even if a circuit court
erroneously exercised its discretion in denying a litigant’s request for a new
lawyer, the appropriate remedy is not outright reversal but rather the opportunity
to be heard at a “retrospective hearing” to allow the circuit court to determine,
after the fact, whether there were sufficient reasons to deny the request. Lomax,
146 Wis. 2d at 357-58. Here, JMC had the opportunity to raise this issue with the
circuit court—presided over by the same judge who denied his request for a new
lawyer—but failed to do so.

14
No. 2023AP1824

¶34 In summary, while it is clear that the circuit court could have—
should have—done more to engage directly with JMC rather than simply allowing
him an opportunity to engage in a monologue, this court cannot conclude, based
on the totality of the circumstances reflected in the Record, that the circuit court
erroneously exercised its discretion in denying JMC’s request, particularly in light
of JMC’s confirmation that he actually was satisfied with his lawyer’s
representation shortly after the court had denied his request.

B. Failure to take testimony at time of no contest plea and prejudice

¶35 JMC also contends the circuit court erred when it failed to take
testimony at the time of his no contest plea and argues this error prejudiced him.
JMC is correct that the circuit court erred when it failed to take testimony at the
time of his no contest plea. WISCONSIN STAT. § 48.422(3) provides that “[i]f the
petition is not contested the court shall hear testimony in support of the allegations
in the petition, including testimony as required in sub. (7).” It is undisputed here
that the circuit court erred in failing to do so, and the circuit court itself conceded
the error.

¶36 Our supreme court, however, has held that this error is harmless
when the statutorily required testimony may be “teased out” from other parts of
the Record. Steven H., 233 Wis. 2d 344, ¶58. Whether the circuit court’s error
was harmless presents a question of law this court reviews de novo, see State v.
Jackson, 2014 WI 4, ¶44, 352 Wis. 2d 249, 841 N.W.2d 791, and in determining
whether JMC was prejudiced, this court is to review the entire Record and the
totality of the circumstances. See Steven H., 233 Wis. 2d 344, ¶4.

¶37 As the facts set forth above establish, a review of the entire Record
demonstrates that JMC was not prejudiced because a factual basis supporting the

15
No. 2023AP1824

conclusion that JMC abandoned Janice can be located “when the entire record is
examined.” See id., ¶58.

¶38 As the postdisposition court aptly explained in its ruling, both
elements establishing abandonment grounds are contained in the Record. In
regard to the first element, at the March 31, 2023 hearing, the circuit court took
judicial notice of the court orders placing Janice outside of the parental home, each
of which it confirmed had the TPR warnings attached. JMC nevertheless argues
that the circuit court having done so was insufficient to establish the first element
because the allegation was not established by “testimony.” In that regard, JMC
argues Steven H. held that orders with attached warnings cannot be established by
taking judicial notice and that Brereton’s report does not assert that “the order
placing [Janice] outside the home contained the requisite termination of parental
rights notice.” This court rejects JMC’s arguments.

¶39 To the extent JMC suggests the circuit court’s having taken judicial
notice of the multiple orders it issued during the pendency of this matter was
insufficient to establish the first element of the abandonment claim—that Janice
had “been placed, or continued in a placement, outside the parent’s home by a
court order containing the” required TPR warnings—this court disagrees. See
WIS. STAT. § 48.415(1)(a)2 (emphasis added). While JMC is correct that the
Steven H. court confirmed “that the legislature intended the circuit court to hear
testimony in support of the allegations,” the Steven H. court, after “examination of
the entire record,” was nevertheless “persuade[d] … that there [were] insufficient
grounds to justify … overturning the circuit court’s judgment” despite the circuit
court having failed to take testimony at the time of the no-contest plea. 233
Wis. 2d 344, ¶¶56, 60 (emphasis added).

16
No. 2023AP1824

¶40 Here, support for the factual allegation that Janice had been placed
outside of her parents’ home pursuant to a court order that contained the TPR
warning is found in the circuit court’s own orders, and it would be illogical to
conclude that the circuit court could not look to its own orders to support this
allegation but would instead be required to rely specifically on witness testimony
that the circuit court itself had issued such orders. Additionally, Steven H.
addressed whether the circuit court could take judicial notice of a TPR report—not
whether the court could take judicial notice of its own orders, which are certified
records not subject to reasonable dispute. See id., ¶53; WIS. STAT. § 902.02(2).
Thus, the circuit court could take judicial notice of the orders, and it was
acceptable for the circuit court to rely on those to establish the first element
required for abandonment.4

¶41 In addition to the circuit court having taken judicial notice of its own
orders, Brereton’s testimony at the adjourned initial appearance on March 31,
2023—although taken in the context of grounds as to Janice’s mother—
acknowledged a January 2021 revision to the dispositional order placing Janice
outside of a parent’s home. And, although Brereton did not specifically testify at
the dispositional hearing that Janice had been removed from her parents’ home
pursuant to a court order with the required TPR warnings, she again referenced
Janice’s January 2021 removal from her mother’s home pursuant to a CHIPS order

4
Additionally, Brereton’s affidavit attached to the Petition states that Janice was
removed from the parental home pursuant to a court order with the required TPR warnings, that
JMC received copies of those orders, and that JMC received both written and verbal notice of the
TPR warnings. While this information was included in Brereton’s affidavit rather than in her
testimony or the incorporated report, it is nevertheless part of the Record to which this court can
look to support the allegations in the Petition. See Waukesha County v. Steven H., 2000 WI 28,
¶¶58, 60, 233 Wis. 2d 344, 607 N.W.2d 607.

17
No. 2023AP1824

and Janice’s placement in foster care since that time. While this testimony does
not specifically reference the TPR warnings and directly mentions only the
January 2021 order, it nevertheless supports the allegation that Janice had been
removed from the parental home and that placement outside of the parental home
continued—particularly when viewed in light of the Record as a whole.

¶42 As to the second element—that JMC did not visit or communicate
with Janice for three months or longer—Brereton’s testimony at the dispositional
hearing clearly addressed this allegation. Specifically, Brereton testified at the
June 2023 dispositional hearing that since January 2021, when Janice was
removed from her mother’s home, JMC had seen Janice six or seven times—all of
which occurred between October 2022 and December 2022—and that JMC had
otherwise not maintained regular contact with the County or the foster parents.
Brereton’s report, which she incorporated into her dispositional hearing testimony,
further stated that during his incarceration—first from January 6, 2021, through
October 11, 2023, and then from January 6, 2023, through at least the date of her
report (June 12, 2023)—JMC “did not write letters to [Janice]” and only
inconsistently wrote “to the assigned DCFS worker expressing that he loved and
missed [Janice].”

¶43 Accordingly, although the circuit court erred when it failed to take
testimony at the time it accepted JMC’s no contest plea, a review of the entire
Record confirms that a factual basis for the abandonment “allegations in the
petition can be teased out of the testimony of other witnesses at other hearings

18
No. 2023AP1824

when the entire record is examined.” See Steven H., 233 Wis. 2d 344, ¶58. This
court agrees that JMC was not prejudiced by the circuit court’s error.5

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
In a further attempt to establish prejudice by distinguishing his case from Steven H.,
JMC also asserts he, unlike the parent in Steven H., raised a substantive defense to the alleged
ground for termination at the dispositional hearing. See Steven H., 233 Wis. 2d 344, ¶59.
According to JMC, his statements at the end of the dispositional hearing—which again, were not
testimony—that “[t]here’s no threat[,]” “[t]here’s no abandonment[,]” and there is “no true and
just reason for termination of my parental rights” raise a substantive defense to the abandonment
ground. This court is not persuaded. JMC entered a plea at the grounds phase and he did not
testify at the dispositional phase. His unsworn, conclusory statements do not somehow negate the
evidence that JMC abandoned Janice and the circuit court’s determination that it was in Janice’s
best interest to terminate his parental rights.

19