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No withdrawal of TPR plea where where mom failed to appear for hearing

State v. V.R., 2020AP798 & 2020799, 1/26/21, Distrct 1 (1-judge opinion; ineligible for publication); case activity

This is an appeal from an order terminating V.R.’s parental rights. The court of appeals rejected a no-merit report because the record revealed that neither defense counsel nor the circuit court had discussed the meaning of a “substantial parental relationship” with V.R. before she pled no contest to failure to assume parental responsibility. On remand, V.R moved to withdraw her no contest plea and filed an affidavit. She lost her motion and now her appeal because she did not appear at the plea withdrawal hearing.

When a parent alleges that her plea to grounds for a TPR, Bangert applies, and it requires the parent to make a prima facie showing that the court violated its mandatory duties and that the parent did not know or understand the information that should have been provided at the hearing. Oneida Cnty. DSS v. Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122.

The court of appeals held that V.R.’s absence prevented her from making a prima facie showing of grounds for plea withdrawal. She was not present to testify in support of her affidavit or to waive the attorney-client privilege so that her lawyer could testify to the allegations of the affidavit. It also held that her affidavit made only conclusory allegations. Opinion, ¶¶16-19.

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