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Admission to TPR grounds was knowing and voluntary

State v. M.G., 2016AP1197, District 1, 7/5/16 (one-judge decision; ineligible for publication); case activity

M.G. moved to withdraw his no contest plea to the petition to terminate his parental rights based on CHIPS grounds. He alleged the plea colloquy was deficient regarding his waiver of the right to trial because his lawyer and the judge referred to his having a “second” trial regarding disposition, and that he was confused by these statements. (¶15). The court of appeals finds no deficiency in the plea colloquy and therefore no basis for plea withdrawal.

As in a criminal case, a claim that a plea in a TPR case was not knowing and voluntary is subject to the Bangert analysis, the first step of which requires the parent to make a prima facie showing that the circuit court violated its mandatory duties under § 48.422(7) and to allege that he or she did not know or understand the information that should have been provided. Waukesha County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607. M.G. doesn’t make a prima facie showing:

¶22     We agree with the trial court that its colloquy was very thorough, and not deficient in any way. Furthermore, although M.G. may have initially been confused by the trial court’s description of the disposition as a “second trial,” the trial court’s subsequent explanation of the rights being forfeited with regard to the jury trial, and its comparison of the jury trial to the disposition, was clear and explicit. Moreover, the trial court stated that M.G.’s demeanor during the colloquy clearly denoted his understanding of the proceedings. Therefore, we agree with the trial court that M.G. did not meet his burden of presenting a prima facie showing that the trial court violated its mandatory duties and that M.G. did not understand the information provided. ….

M.G. also argues his right to counsel was violated when the circuit court asked the social worker certain questions during the child’s mother’s plea hearing, at which neither he nor his lawyer were present. The questions involved whether M.G. had been adjudicated as the father, whether any other man had filed a declaration of paternity, whether the Indian Child Welfare Act applied, and whether the current placement of the child was an adoptive resource. While that information was relevant to M.G.’s proceeding and the court typically asked about the information during a plea hearing, it wasn’t part of the testimony needed to establish a factual basis for M.G.’s plea and therefore the court’s questions on that topic weren’t part of a “critical phase” of the proceedings at which M.G. had the right to counsel. (¶¶9, 23-27).

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