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Denial of evidentiary hearing in remanded TPR wasn’t erroneous

State v. B.D.S., 2017AP1770, District 1, 8/27/18 (one-judge decision; ineligible for publication); case activity

B.D.S. filed a motion for postdisposition relief seeking to withdraw his no-contest plea to a TPR petition, alleging there was an issue about his competency to understand the proceedings. (¶9). The court of appeals rejects his claim that the circuit court was required to hold an evidentiary hearing on the motion.

Case law holds that a motion to withdraw a plea to a TPR petition is handled using the Bangert procedure adopted for dealing with motions to withdraw pleas in criminal cases: If—and only if—the motion makes a prima facie showing the circuit court didn’t comply with its duties in taking the plea, an evidentiary hearing must be held at which the state bears the burden of proving the plea was knowing and voluntary despite the defects in the plea colloquy. Waukesha County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607. B.D.S. aruges this standard doesn’t apply where the court of appeals has remanded the case for postdisposition proceedings under Rule 809.107(6)(am) because that rule says that “[i]f the court of appeals grants the motion for remand, it shall set time limits for the [remand] court to hear and decide the issue” (emphasis added). The court of appeals disagrees that this statute, which was created in 2001, mandates an evidentiary hearing in every case that is remanded:

¶16     …. B.D.S. provides no legal support demonstrating that the rule has been interpreted in the manner he suggests since that language was implemented seventeen years ago. In fact, case law indicates otherwise, as the Bangert standard is used regularly in our review of TPR cases where the plea is being challenged…. See [Oneida Cty. DSS v.] Therese S., [2008 WI App 159,] 314 Wis. 2d 493, ¶6[, 762 N.W.2d 122]. Moreover, we disagree with B.D.S.’s interpretation of the rule.


¶19     The first line of the statutory subsection at issue explains that a motion for remand can be filed in a TPR proceedings if the appeal is based on “any ground that may require postjudgment fact-finding[.]” Wis. Stat. Rule 809.107(6)(am) (emphasis added). It does not mandate that a hearing be held. Rather, it requires that the remand court “hear” the motion—that is, review and consider the motion—and then determine whether a fact-finding hearing is necessary. See, e.g., Therese S., 314 Wis. 2d 493, ¶6; see also Dane County DHS v. S.J., Nos. 2017AP1578, 2017AP1579, and 2017AP1580, unpublished slip op. (WI App Oct. 19, 2017). And, as the relevant case law indicates, the proper vehicle by which the remand court is to determine whether an evidentiary hearing is required on a postdispositional issue in a TPR case is the Bangert analysis. See Therese S., 314 Wis. 2d 493, ¶6.

The circuit court performed an appropriate Bangert analysis and properly found that B.D.S. didn’t make a prima facie showing that the plea colloquy was inadequate; therefore, the circuit court didn’t err in denying B.D.S.’s motion without an evidentiary hearing. (¶¶20-21).

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