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No withdrawal of “no contest” plea to grounds for TPR under Bangert, “manifest injustice,” “fair and just reason” standard

Dane County DHS v. S.J., 2017AP1578-1580, 10/19/17, District 4 (1-judge opinion, ineligible for publication) case activity

When an opinion starts by saying a mother answered more than 80 questions relating to her understanding of pleading “no contest” during the grounds phase of a TPR case and quotes the her lawyer as saying “she’s one of the brightest clients I’ve ever worked with,” you know her motion to withdraw her plea is doomed.

S.J. argued that she should have been allowed to withdraw her “no contest” plea because the circuit court appeared to apply a “manifest injustice” test to her pre-disposition request for plea withdrawal when it should have applied the “fair and just” reason standard. The court of appeals held that those standards don’t apply; Bangert does.

¶16 . . . S.J. makes an unsupported request that I create a new standard for the analysis of plea withdrawal in the TPR context.  That is, S.J. fails to point to Wisconsin authority that either the manifest injustice or fair and just reason standards apply to a motion to withdraw a no contest plea in a TPR proceeding.  Instead, as the County argues and I now explain in more detail, when reviewing a claim that a no contest plea in a TPR proceeding was not knowing, voluntary, and intelligent, courts follow the analysis set forth in Bangert, familiar from the criminal context.  See Therese S., 314 Wis. 2d 493, ¶6.

¶17 Under the appropriate analysis, a parent seeking to withdraw a plea in a TPR proceeding must first make a prima facie case establishing that the circuit court violated its mandatory duties under WIS. STAT. § 48.422(7)4 and asserting that the parent did not know or understand the information the court should have provided.  Id.  If the parent fails to establish a prima facie case, the court need go no further and may deny the motion for plea withdrawal.  Waukesha Cty. v. Steven H., 2000 WI 28, ¶43, 233 Wis. 2d 344, 607 N.W.2d 607, modified on other  grounds by St. Croix Cty. DHHS v. Michael D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d 107.  If the parent makes a prima facie showing, the State (or, here, the County) must then show by clear and convincing evidence that the parent knowingly, voluntarily, and intelligently waived the right to contest the allegations in the petition.  See Steven H., 233 Wis. 2d 344, ¶42.

The court of appeals held that S.J. forfeited her “wrong standard,” argument but addressed it anyway. Op. ¶¶19-23. Then it applied all 3 possible standards to the facts of this case and held:

¶29 My review of the record reveals that the circuit court did not erroneously exercise its discretion by finding that S.J. knowingly, voluntarily, and intelligently entered her pleas and that her testimony in support of her withdrawal testimony was not credible.  The circuit court was properly within its discretion to make credibility determinations and to weigh the testimony of S.J. and S.J.’s original attorney in making its decision.  See, e.g., Johnson v. Merta, 95 Wis. 2d 141, 152, 289 N.W.2d 813 (1980) (citation omitted) (circuit court is ultimate arbiter of the credibility of witnesses).


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