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Parent knew plea to TPR grounds would mean unfitness finding

State v. L. H.-H., 2016AP917, 1/18/17, District 1 (1-judge decision; ineligible for publication); case activity

L.H.H. seeks to withdraw his plea to the single T.P.R. ground of failure to assume parental responsibility. He contends he did not understand that a plea would result in a finding that he was an unfit parent; the court of appeals upholds the circuit court’s finding that he did.

Where a parent alleges a deficiency in a TPR-grounds plea colloquy, the analysis proceeds along the same (Bangert) lines as in criminal cases: if the parent makes a prima facie case by (1) showing that the circuit court did not provide required information, and (2) alleging that he or she did not understand said information, the burden shifts to the petitioner to show that the parent did, in fact, have the required knowledge. Waukesha Cty. v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607. (¶12). One of those bits of required knowledge is the fact that a plea to grounds automatically results in a finding of unfitness. Oneida Cty. Dep’t of Soc. Servs. v. Therese S., 2008 WI App 159, ¶10, 314 Wis. 2d 493, 762 N.W.2d 122. (¶13).

Here, the court engaged L.H.H. in a fairly detailed colloquy but failed to tell him about the automatic unfitness finding. (¶4¶9). After L.H.H.’s rights were terminated, he filed a motion alleging that he had not understood this fact, and the circuit court held a hearing at which L.H.H. and his counsel testified (¶¶6-8). The circuit court acknowledged its failure to give the information in the plea colloquy but nevertheless concluded he had not made a prima facie case. The court based this conclusion on the fact that it had informed L.H.H. of the unfitness finding at a hearing prior to the plea hearing, as well as its finding that L.H.H.’s counsel had likely explained it to him. (¶9).

That’s not quite right! The facts the court found may well have satisfied the state’s burden to show that L.H.H. in fact knew about the automatic unfitness finding, but that does not mean he didn’t make a prima facie case–rather, the state was required to carry that burden because he made a prima facie case.

In any case, the court of appeals affirms, without making precisely clear whether it’s adopting the circuit court’s somewhat blurred analysis or applying the usual two-step framework. (¶¶12-16).

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