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Failure to take testimony to support no-contest plea in TPR case didn’t entitle parent to plea withdrawal

Sheboygan County DHHS v. Phillip L., 2014AP780, District 2, 9/10/14 (1-judge; ineligible for publication); case activity

When Phillip entered his no-contest plea at the fact-finding stage of his termination of parental rights (TPR) proceeding, the circuit court didn’t take sworn testimony to support the TPR petition, as required by § 48.422(3). Because Phillip doesn’t allege the error resulted in any lack of understanding as to the plea he entered, he is not entitled to withdraw his plea.

The court rejects Phillip’s argument that taking testimony to support the allegations in the TPR petition is independent from whether as plea is knowing, intelligent, and voluntary, and therefore he is entitled to withdraw his plea regardless of whether he knew or understood the information that was not taken under oath.

¶5        Phillip’s confusion apparently stems from the supreme court’s discussion in [Waukesha County v.] Steven H.[, 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607,] where, despite asserting that Steven H. did not make a prima facie showing under [State v.] Bangert[, 131 Wis. 2d 246, 389 N.W.2d 12 (1986)] and its inquiry could end, the court went on to satisfy itself that the error was not prejudicial by “teas[ing] out” sworn testimony to support the allegations in the TPR petition from other parts of the record. See Steven H., 233 Wis. 2d 344, ¶¶43, 51, 56-60. Steven H. was a unique, precedent-setting case that involved review of “whether a parent’s no contest plea was knowingly made, even though he had not filed a post-judgment motion to withdraw the plea.” [Kenosha County DHS v.] Jodie W., [2006 WI 93,] 293 Wis. 2d 530, ¶28[, 716 N.W.2d 845]. Steven H. did not depart from the Bangert requirement that a party moving for plea withdrawal in a TPR proceeding must make a prima facie showing that he or she did not know or understand the information that should have been provided at the hearing. See Jodie W., 293 Wis. 2d 530, ¶26. Although applying Bangert to the “factual basis” portion of a court’s plea acceptance procedure can be “an awkward fit,” a motion for plea withdrawal must still allege that the moving party lacked knowledge or understanding of the information omitted from the plea hearing before relief may be granted. See State v. Lackershire, 2007 WI 74, ¶¶48, 51-55, 301 Wis. 2d 418, 734 N.W.2d 23. As Phillip’s motion failed to do so, it was properly denied.

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