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Parent entitled to an evidentiary hearing on claim that circuit court miscommunicated burden of proof in TPR plea colloquy

State v. B.M., 2023AP1137, 11/14/23, District I (ineligible for publication); case activity

Despite an intervening decision from SCOW which generated skepticism as to whether parents can obtain plea withdrawal when a circuit court miscommunicates the burden of proof in a TPR plea colloquy, COA nevertheless reverses and remands in this case presenting yet another “A.G.” claim.

For those needing a recap of this recurring issue that has been frequently covered on this blog: Following unprecedented back-to-back defense wins in COA establishing that a colloquy which does not ensure a correct understanding of the dispositional standard results in plea withdrawal, the GAL and the State successfully petitioned SCOW with a request to forever eliminate the legal basis for A.G.’s plea withdrawal claim…but then failed to secure a binding holding (due to the inability of four justices to agree how A.G. should lose) which would conclusively resolve this issue. You can check out our post on that recent SCOW decision here.

Undeterred by that defense loss–and perhaps even spurred on by SCOW’s fractured decision–B.M. presents essentially the same issue: that “the circuit court informed her in the plea colloquy of the wrong statutory standard for the dispositional phase of the termination of parental rights (TPR) proceedings.” (¶1). Because she argues that this rendered her plea not knowing, intelligent or voluntary, she asks for an evidentiary hearing under the Bangert framework and, ultimately, plea withdrawal.

COA sides with B.M. and points out that the circuit court’s colloquy is especially confusing, as the court “explained the burdens and standards for a TPR proceeding in multiple ways,” (¶15), including an explicit statement that the petitioner would have to prove, at the dispositional phase, that adoption is in the best interest of the child “by a reasonable certainty.” (¶4). The record also reflects that the circuit court ultimately went on to apply this almost-certainly legally incorrect standard at the dispositional hearing. (Id.).

Given that the record establishes “that the circuit court misinformed B.M. about the standard of review during the dispositional phase and instead stated in various ways that the State was “forced to prove” that the termination was in [the child’s] best interests,” COA therefore reverses the circuit court’s order denying B.M. an evidentiary hearing. (¶20). In reaching that conclusion, it also rejects the GAL’s arguments that its questioning of B.M. at the plea hearing–apparently intended to firm up the knowing and intelligent nature of the plea–rectified any court error. (¶19). In COA’s view, it was up to the court–and not the GAL–to “clarify the standard.” (¶18). Here, all the record establishes is that B.M. received conflicting information from two different legal actors and the entity responsible for resolving that conflict–the judge–did not use the GAL’s questions as a “launching pad” to conclusively clarify the issue. (Id.).

Because the misstatement of the burden of proof goes beyond a “technical defect or a minor detail,” COA therefore holds that B.M was wrongly denied her evidentiary hearing and remands so that the State can have an opportunity to prove the knowing, intelligent and voluntary nature of her plea. (¶20)

Well, that is if B.M. gets back to court before SCOW accepts review of the inevitable PFR to be filed by either the State or the GAL (interestingly, a review of the public record shows that this case even involves many of the same lawyers as in A.G., meaning this case will be a very direct sequel to that litigation if, in fact, it makes its way to SCOW) Note also that A.G. was handled by a six-member court, given Justice Roggensack’s recusal. However, Justice Protasiewicz’s participation is not guaranteed to result in a more clear-cut outcome.

To explain: Of the current “conservatives” on the court, all three voted against A.G., although Justices R.G. Bradley and Hagedorn were unable to agree on a rationale for reversal, resulting in a fractured opinion and harsh words slung from the lower margins of Justice R.G. Bradley’s “lead” opinion. And, while two of the remaining “liberals” voted in favor of A.G., their decision relies largely on a quirky application of the “law of the case doctrine,” meaning they may reach a different outcome in a case where they are unfettered to exercise independent judgment on this “burden of proof” issue.

One more note: Interestingly, COA does not cite its prior decision in A.G. Iholding that a miscommunication of the burden of proof may be sufficient to obtain an evidentiary hearing–in the body of this opinion. Yet, because of SCOW’s fractured opinion in A.G. IIand the lack of an appeal in A.G. I–that decision remains persuasive authority under Rule 809.23(3)(b).  

Long story short(er): Stay tuned, as we probably haven’t heard the last of this case or this issue!

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