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Defense Win! Father entitled to evidentiary hearing on TPR plea withdrawal claim

State v. N.H., 2022AP1945, District 1, 03/14/2023, (one-judge decision, not eligible for publication) case activity

This case presents a relatively straightforward application of how Bangert applies to termination of parental rights pleas. As noted by the decision, however, the Wisconsin Supreme Court is currently considering a more nuanced version of the issue in State v. A.G. In Nico’s (N.H.) case, the court of appeals again holds that a circuit court’s incorrect explanation of the applicable statutory standard at disposition entitles the parent to an evidentiary hearing under Bangert to determine whether the state can prove the parent’s plea was entered knowingly, intelligently, and voluntarily. Opinion, ¶1.

As was the case in A.G.’s initial appeal, the circuit court in Nico’s case incorrectly advised Nico that at disposition the state would have the burden to prove by “clear, convincing, and satisfactory evidence that it is in [the child’s] best interest that I terminate your rights.” Id., ¶4. Further, the court also informed Nico that by entering a plea he maintained his right to a trial, and that the Court, instead of a jury, would decide whether it was in his child’s best interest that Nico’s parental rights be terminated. Id., ¶5-6.

After Nico’s plea and the state’s “prove up,” the court found grounds to terminate Nico’s parental rights. At disposition, the dispute concerned whether the three-year old child was too young to express his wishes. On this issue, the court affirms the circuit court’s decision to terminate Nico’s parental rights and specifically the court’s consideration of the child’s wishes despite the child’s age because the statutory factor’s “must” be considered in every involuntary TPR disposition, regardless of the age of the child. Id., ¶¶24-28.

Postdisposition, Nico moved the court to hold an evidentiary hearing on his claim that his plea was not knowing, intelligent, and voluntary. The circuit court held a non-evidentiary hearing, reviewed transcripts from several hearings, and heard oral argument from the parties. The court then concluded that while the court had incorrectly explained the burden of proof applicable at disposition during Nico’s initial appearance, that because the court correctly explained “Nico’s rights and the burden of proof for the grounds phase and twice expressed the best interests standard for disposition,” it determined that Nico failed to make a prima facie showing necessary under Bangert to entitle him to an evidentiary hearing or plea withdrawal. Id., ¶¶14-15 (emphasis added).

The court of appeals reverses and holds that Nico made a prima facie showing necessary to be entitled to an evidentiary hearing on his plea withdraw claim. Id., ¶21. Further, the court holds that Nico asserted that he did not understand the  burden of proof applicable at disposition. Id., ¶22. Essentially, the court explains that Nico’s allegations are sufficient to create a “question of fact” that shifts the burden to the state to prove “by clear and convincing evidence” that Nico’s plea was in fact knowing, intelligent, and voluntary. Id., ¶19, 23.

In addition to State v. A.G., which is another District I case now pending in SCOW, this case is the second reversal this month out of District I related to a circuit court’s misstatement during a plea colloquy about the state’s burden of proof at disposition. See State v. Y.P.V. Further, in 2019, District I affirmed in a similar case despite the circuit court’s statement that at disposition the state would have the “burden” to prove what was in the child’s best interest because the court did make clear that the focus at disposition would be the child’s best interests. See State v. T.A.D.S.

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