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Mother did not establish fair and just reason to withdraw consent to TPR

Green County DHS v. Ericka L.R., 2014AP1106, District 4, 7/17/14 (1-judge; ineligible for publication); case activity

Assuming the “fair and just reason” standard for plea withdrawal before sentencing also applies to motions to withdraw consent to TPR before disposition, Ericka failed to establish a fair and just reason for withdrawing her voluntary consent to termination of her rights to her daughter.

After consenting to termination, but before the dispositional hearing occurred, Ericka moved to withdraw her consent on various grounds. (¶¶2-4). At a hearing on her motion she argued the court should apply a “totality of the circumstances” test  to her motion, though she conceded the courts have applied the Bangert approach to similar types of motion, e.g., Brown County DHS v. Brenda B., 2011 WI 6, ¶¶34-36, 331 Wis. 2d 310, 795 N.W.2d 730 (applying Bangert standards to question of whether parent may withdraw no contest plea in involuntary termination of parental rights proceeding). In the court of appeals, she argues the fair and just reason standard should apply, but the court finds this argument to be forfeited. (¶10).

The court also concludes, however, that even if the argument were preserved she has not proven her asserted bases for withdrawing her consent—problems with her attorney; her hasty decision to consent; and an agreement she had with Ella’s guardians under which they would pay her child support arrears, which was an improper influence on her decision and an improper quid pro quo. (¶¶11-15). The first two grounds are insufficiently specific and merely conclusory (¶¶16-18) and the record does not establish there was an agreement regarding child support at the time she entered her consent (¶¶19-23). Moreover, to the extent there was an agreement, the record shows the main reason for her consent to termination was because she thought Ella should stay with the guardians her child had come to know as family. (¶¶24-25).

Finally, the court finds no relevant defect in the colloquy the court conducted with Ericka when she entered her consent. While the court missed one of the requirements under T.M.F. v. Children’s Service Society of Wisconsin, 112 Wis. 2d 180, 332 N.W.2d 293 (1983), Ericka did not allege this failure as part of her motion to withdraw her consent, so her claim on that ground is forfeited. (¶¶31-34).

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