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Court of appeals upholds no contest plea to grounds for TPR despite problems with plea hearing

State v. K.H., 2016AP1180, District 1 (1-judge opinion, ineligible for publication); case activity

During a lengthy colloquy regarding her “no contest” plea to grounds for terminating parental rights to her son, K.H. “seemed confused.” She said she hadn’t taken all of her prescribed medication. The court was concerned that she “was not able to fully understand the proceedings.” So her lawyer conducted a direct examination to determine her understanding of what she was doing. Eventually, the court was satisfied that she did and found that her plea was freely, voluntarily and intelligently given. Then it proceeded to establish a factual basis for it. On appeal, K.H. contends that (1) her plea was not knowing, intelligent and voluntary, and (2) the court erred in accepting the plea before the factual basis for it was proven as required by §48.422(7).

K.H. argued that during the colloquy she did not understand that by pleading “no contest” she surrendered the chance to complete the conditions set forth in the CHIPS order, the right to contest the continuing CHIPS grounds of the TPR petition, and the testimony at the prove up hearing. ¶15. The court of appeals rejected this argument based solely on K.H.’s answers without mentioning whether K.H.’s failure to take her prescribed medications could have affected her ability to understand what was being said and hence her answers:

¶18 In our independent review of the record, we do not find any evidence to support K.H.’s claims. For example, with regard to K.H.’s claim relating to additional time for meeting the CHIPS conditions, the trial court explained during the plea colloquy that one of the allegations included in the K.H.’s no contest plea was that it was “substantially unlikely that [K.H.] could meet all the goals and conditions [of the CHIPS order] within the next nine months.” K.H. answered affirmatively. Furthermore, K.H. confirmed that she understood she was giving up her right to trial and her right to contest the continuing CHIPS grounds. Additionally, the record clearly indicates that the trial court advised K.H. of the burden of proof that the State would be required to meet to prove the allegations if they went to trial, but that with the plea the State would not have to prove those allegations with evidence. Again, K.H. answered affirmatively.

¶19 Although K.H. expressed a lack of understanding at some points during the plea hearing, her trial counsel made every effort to explain the proceedings to her. In fact, the record indicates that trial counsel requested a recess prior to the plea hearing in order to more fully explain to K.H. the import of a no contest plea. He also performed a direct examination of K.H. during the hearing to assure himself that K.H. understood the proceedings. The trial court also repeatedly explained the details of the proceedings to K.H. during the hearing until it was convinced that she understood what the plea meant and its ramifications.

As for K.H.’s “reverse order” argument, the court of appeals noted that the case K.H. relied upon, Ernst v. State, 43 Wis. 2d 661, 170 N.W.2d 713 (1969), was overruled by Bangert. ¶22. It also held that §48.422(7) (facts  1st, plea 2nd) applies when a parent “admits” grounds for termination; it does not apply to a “no contest” plea because the parent isn’t admitting anything. ¶24.  In fact, ” a judge may establish the factual basis as he or she sees fit, as long as the judge guarantees that the defendant is aware of the elements of the crime, and the defendant’s conduct meets those elements.”  State v. Thomas, 2000 WI 13, ¶22, 232 Wis. 2d 714, 605 N.W.2d 836

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