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Defense win! TPR reversed due to errors in plea colloquy and disposition

State v. Y.P.V., 2022AP1935-36, 3/21/23, District 1 (1-judge opinion, ineligible for publication); case activity

The court of appeals reversed and remanded this TPR for two reasons. First, the mom made a prima facie case that her “no contest” plea to grounds was not knowing, intelligent, and voluntary because, during the plea colloquy, the circuit court misstated the law that would apply during the disposition. Then, at the disposition phase, the circuit court failed to apply the proper standard of law and misstated an important fact.

During the grounds phase of this TPR, the mom agreed to plead no contest to two grounds for termination of her parental rights to her daughters. While conducting a thorough colloquy, the circuit court told the mom that during the disposition phase:

You would have the right to force the petitioner or the State to prove to a reasonable certainty that adoption serves the best interest of your children and if they are not able to do so, that the petition for termination of parental rights should be dismissed and a different alternative would be pursued instead of the termination of your parental rights.

The court of appeals held that the circuit court misstated the law. The statute governing the disposition phase does not hold the State to a burden or proof or impose a “reasonable certainty” standard.  See § 48.426(2). Also, the circuit did not advise the mom that during the disposition phase, the prevailing factor would be the “best interests” of the children. Opinion, ¶23.

Because the mom made a prima facie showing that her plea was not knowing, intelligent, and voluntary, the court of appeals reversed and remanded for an evidentiary hearing where the State may present evidence regarding the mom’s knowledge and understanding of the statutory standard that applies during the disposition phase. Opinion, ¶25.

In footnote 5, the court of appeals noted two recent appeals concerning misstatements of the standard of law or burden of proof for the dispositional phase. In one, the State misstated the burden assigned to the State. The court of appeals did not reverse because at least the circuit court advised the parent that the prevailing standard was the “best interests of the child” standard. See State v. T.A.D.S., No 2018AP2173 (WI App June 18, 2019)(unpublished). In the other, the court of appeals reversed and remanded for an evidentiary hearing because, in addition to misstating the burden of proof, the circuit court failed to advise the parent that the “best interest of the child” would be the prevailing factor during the disposition phase. See State v. A.G., No. 2022AP652 (WI App July 12, 2022)(unpublished). This case aligns with A.G., which is now pending in SCOW. Click here. 

During the disposition phase, the circuit court decides whether the TPR is in the best interests of the child by applying the 6 factors in  § 48.426(2).  Here, the circuit court made two errors in its analysis of these factors.

First, it was required to determine whether the children had a substantial relationship with their mom or other family members and whether it would harm the children to sever these relationships. But in this case, the circuit court focused on whether the children would be harmed by severing the relations with their foster mother. Opinion, ¶¶28-32.

Second, the circuit court repeatedly stated that the length of the separation between the mom and her daughters was 75 months and described that as a significant amount of time. In fact, the separation lasted only 38.5 months. While this error alone would not justify reversal, the court of appeals stated that it undermined the reasonableness of the circuit court’s decision-making. Opinion, ¶33. 


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