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COA says mom can’t withdraw her consent to termination of her parental rights

State v. L.N.H., 2022AP209, 9/13/22, District 1, (10judge opinion, ineligible for publication); case activity

The State filed petitions against “Lucy” and “Adam,” seeking to terminate their parental rights to “Anthony.” Adam stipulated to grounds for the TPR, but ultimately not to termination. Lucy consented to termination but later argued that her consent was not knowingly and intelligently made.

Lucy argued that:

¶16 . . . at the time she entered consent to the voluntary TPR, she “did so with the knowledge and understanding that a guardianship petition would be filed by or on behalf of [Sophia [i.e. a cousin]], and if the guardianship went through, the State would dismiss its petition to terminate her parental rights.” Lucy contended that she consented “with the knowledge and understanding that her parental rights would only be terminated if the father’s parental rights were also terminated.” Lucy “maintain[ed] that she did not know or understand that her rights could be terminated even if [Sophia] became[Anthony’s] guardian, and/or if the father maintained his parental rights.” Lucy contended that she did not “fully understand the possible outcomes and consequences of her consent to termination when she entered it.”

According to the court of appeals: “The record reflects that after Lucy brought up her possible voluntary consent to the TPR during the court proceedings, no person, attorney, or judicial officer stated that Lucy’s rights should be or would be maintained if a guardianship were granted.” (Opinion, ¶21). Ditto regarding her contention that her rights would be maintained if Adam’s rights were not terminated. (Opinion, ¶22).

SCOW established 6 factors that a circuit court should consider before accepting a parent’s voluntary consent to TPR. T.M.F. v. Children’s Serv. Soc’y, 112 Wis. 2d 180, 196-197, 332 N.W.2d 293 (1983). None of those factors specifically her information obtained outside of the plea colloquy. Thus, Lucy did not challenge the colloquy. She argued that her misunderstanding of the consequences of her plea arose from conversations that she had with her trial lawyer.

The court of appeals rejected that argument for two reasons. First, it was based on State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24, so it doesn’t apply here:

The State points out that Jenkins is a presentencing plea withdrawal case, which has not been applied to postdisposition TPR cases. In the review of plea withdrawal for a no-contest plea to the grounds for a TPR grounds, we have treated the request for postdisposition plea withdrawal to be akin to post-sentencing plea withdrawal, applying a Bangert analysis. See Waukesha Cnty. v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607, holding modified on other grounds by St. Croix Cnty. DHHS v. Matthew D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d 107; State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). We conclude that Jenkins is not applicable to the procedural posture of Lucy’s motion. (Opinion, ¶23, n. 5).

Second, the court of appeals held that Lucy’s misunderstanding due to her conversations with trial counsel is covered by the second T.M.F. factor, which requires the circuit court to consider the parent’s understanding of the consequences of termination. In other words, Bangert applies, and she failed to satisfy its two-part test. (Opinion, ¶25).

The misunderstanding that occurred in this case was not the first. Click here to read about other attempts to withdraw consents to TPRs.

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