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In a sequel to its previous decision in A.G., SCOW holds that parent is not entitled to plea withdrawal or new dispo hearing; leaves other issues open

State v. B.W., 2024 WI 28, 6/27/24, affirming an unpublished court of appeals decision; case activity (including briefs)

In a closely-watched TPR appeal, SCOW issues a decision that leaves many open questions regarding the vexing “burden of proof” issue that has ensnarled lower courts.

Although the majority spends roughly 28 pages outlining the facts, the issues presented in this appeal are actually straightforward:

Alleged Plea Colloquy Defect

B.W., like A.G. before him, argues that he is entitled to withdraw his plea based on an assertion that the circuit court’s plea colloquy led him to believe there was a burden of proof placed upon the State at the dispositional phase of the proceedings. (¶49). Here, the circuit court explained to B.W. the rights he was giving up by entering a no-contest plea as to grounds. (¶61). It also told him it would be the State’s burden of proving unfitness at that stage. (¶62). Ultimately, the circuit court informed B.W. that he would have “those same trial rights” during the dispositional phase. (¶63). Accordingly, B.W. argues that he understood the court’s colloquy as informing him that there was a burden of proof at the dispositional phase–a proposition that B.W., for the purposes of this appeal, claims to be legally inaccurate. (¶60).

SCOW, however, holds that B.W. failed to make a prima facie case for plea withdrawal, as he fails to prove that the “circuit court’s reference to ‘trial rights’ meant that the clear, satisfactory, and convincing burden of proof applicable at the grounds phase, also applied at the disposition phase.” (¶67). Under the facts of this case, the “the record reflects that the circuit court did not characterize the clear and convincing burden of proof applicable at grounds, as a trial right that would be applicable at disposition.” (¶65). Moreover, the circuit court also appropriately informed B.W. of the correct statutory standard–the best interest of the children. (¶67).

This is a curiously limited holding, one that seemingly leaves the door open for future litigation. Recall that one way out of this morass was for SCOW to simply accept the path set forth by COA in its unpublished but citable decision in T.A.D.S. There, COA confronted a similar plea withdrawal claim and held that any commentary about a burden of proof was irrelevant because the parent received the information required to be disclosed: that the standard at disposition would be the best interest of the child. That holding appears to follow COA’s decision in Therese S. (parent must be informed of best interest standard in order for plea to be KIV) as well as SCOW’s holding in Brenda B. (“at the very least” parent needs to know that best interest standard is the “prevailing factor” at disposition.) Here, Justice Ziegler’s majority opinion appears to flirt with such an absolute holding, one that would conclusively shut down this issue for good: All the parent needs to know, for a plea to be KIV, is that the best interest standard is what will apply at dispo. 

That, however, is not what SCOW ultimately holds. Instead, SCOW holds that because the record does not reflect any misadvice, then there is no basis for plea withdrawal. In other words, if the circuit court does affirmatively misadvise the person about the burden, it would appear that such claims remain meritorious post-B.W. 

Erroneous Exercise of Discretion 

Next, B.W. argues that the circuit court erroneously exercised its discretion when it relied “on the adoptive parent’s assurance that she would allow B.W. to continue to visit with his son in deciding to terminate his parental rights.” (¶2). Here, the circuit court was confronted with a unique fact pattern as “B.W. has another child with D.D., the proposed adoptive parent.” (¶69). Accordingly, the circuit court “referenced the potential future contact” between the child at issue and B.W. (Id.).

Of course, any promises of future contact are unenforceable given the nature of a TPR order. Accordingly, in Margaret H.SCOW held that while a circuit court may “consider [a] good faith promise […] it should not be bound to hinge its determination on that legally unenforceable promise.” (¶75). Under Margaret H., B.W. avers that the circuit court must “consider that promises by an adoptive parent are legally unenforceable, and presumably […] do so on the record.” (¶76). However, SCOW rejects this request for what it views as a “magic words” requirement. (¶78). Here, there is nothing in the record which would prove the circuit court “believed this co-parenting relationship was enforceable.” (¶79). Utilizing the deferential standard of review applicable to such discretionary decisions–and in light of the circuit court’s consideration of the required factors–SCOW holds that the circuit court appropriately exercised its discretion in this case and affirms. (¶82).

Finally, a note on the issue that is not decided in this case. As many litigators are presumably aware, a large number of cases seem to be making their way toward SCOW following COA’s decision in H.C.which held that there is a burden of proof at disposition–the preponderance of the evidence. That petition for review remains pending. Accordingly, the majority opinion is clear that it “decline[s] to address” that issue. (¶6).

In case you were wondering where the justices stand, however, there are some obvious signals. Chief Justice Ziegler, joined by Justice R.G. Bradley, files a lengthy concurrence explaining that the statute does not impose a burden of proof and that no such burden is constitutionally required. (¶87).  Justice A.W. Bradley, joined by Justice Protasiewicz, urges caution and writes separately to clarify that the majority opinion should not be read as holding that the burden of proof is not a “right;” instead, she believes the opinion is read as properly holding that the circuit court did not label the burden as such. (¶138).

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