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No-contest plea to TPR grounds was valid

State v. T.A.D.S., 2018AP2173, District 1, 6/18/19 (one-judge decision; ineligible for publication); case activity

T.A.D.S. pleaded no-contest to the abandonment ground alleged in the petition filed to terminate his parental rights to his daughter, T.S. He argues his plea was invalid because the circuit court’s plea colloquy didn’t correctly explain the statutory standard for the disposition hearing. The court of appeals disagrees.

During the colloquy, and after explaining the state’s burden of proof at the grounds hearing, the court asked T.A.D.S. if he understood that, at the disposition hearing, “the Court would have to make a finding that the driving factor, the most important factor at the disposition phase, would be what’s in [T.S.’s] best interest” and that “the State would still have that burden of proof of showing what’s in [T.S.’s] best interest, but at the end of a trial and a disposition phase, I could decide to terminate your parental rights.” (¶4). T.A.D.S. argues this is wrong because there’s no specific burden of proof on either party at disposition, and that disposition involves a discretionary determination by the court based on what is in the child’s best interest. (¶7).

The court basically holds the colloquy as a whole shows T.A.D.S.’s plea was knowing and voluntary, as it covered all the areas required by the case law, e.g.Brown Cty. DHS v. Brenda B., 2011 WI 6, ¶¶43-44, 331 Wis. 2d 310, 795 N.W.2d 73. (¶12). As for the court’s reference to the state’s non-existent burden at disposition:

¶13      We also conclude that the circuit court’s comments about the burden of proof at disposition are irrelevant. The court was clear that its decision at disposition would be based on what it found to be T.S.’s best interests. The court thoroughly explained T.A.D.S.’s rights at the disposition hearing, explained the potential outcomes and unequivocally stated that its primary consideration at disposition was T.S.’s best interest. See Brenda B., 331 Wis. 2d 310, ¶44. The court’s decision reflects that it abided by this standard.

Irrelevant? Sure, if you already know there’s no specific burden of proof. True, the court’s colloquy clearly said T.S.’s best interest is “the driving factor” at disposition and that the court makes the best-interest determination; but those statements don’t correct the error about the state having a burden of proof, and there’s nothing inconsistent between those statements and a party having a burden of proof. Basically, the court seems to believe T.A.D.S. should’ve just ignored the court’s erroneous reference to the state’s burden of proof.

Speaking of irrelevant, that “[t]he court’s [disposition] decision reflects that it abided by [the correct] standard” is wholly irrelevant to whether T.A.D.S. knew what standard the court would apply, and how, when he entered his plea . Thus, the court’s ultimate disposition decision can’t save the colloquy’s muddled explanation of how the decision is made.

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