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Plea to TPR petition valid despite prior finding of incompetency

State v. R.D.S., 2017AP1771, District 1, 9/18/18 (one-judge decision; ineligible for publication); case activity

R.D.S. moved to withdraw her no-contest plea to a TPR petition, saying her plea was not knowing, intelligent, and voluntary because of the cognitive disabilities for which she was found to be incompetent during the underlying CHIPS proceedings and a criminal case involving charges of abuse of her child. The circuit court denied the motion after an evidentiary hearing, and court of appeals affirms.

When it accepted R.D.S.’s plea to the TPR petition the circuit court wasn’t aware that she had been found incompetent during the CHIPS and criminal proceedings. (¶¶10-11). While that doesn’t automatically preclude a valid plea to the TPR petition, it is relevant to the validity of the plea, so the circuit court determined R.D.S. made a prima facie showing her plea colloquy was insufficient and held an evidentiary hearing to establish whether her plea was valid. (¶¶11, 18). R.D.S., her attorney, and her GAL testified at that hearing (¶¶12-13), and based on the testimony the court found her plea was valid:

¶19     At [the evidentiary] hearing, the … court heard and considered testimony relating to R.D.S.’s competence from her trial counsel and her guardian ad litem, as well as testimony from R.D.S. herself. The … court also discussed information specific to the previous incompetence rulings, including the timing of those rulings relative R.D.S.’s plea in the TPR proceeding and the psychological assessments of R.D.S. prepared in conjunction with those rulings. Ultimately, the … court found that R.D.S.’s cognitive disabilities did not prevent her from understanding the allegations of the TPR petition and the consequences of her plea. Therefore, it concluded that the State had met its burden of demonstrating that R.D.S.’s plea was knowingly, voluntarily, and intelligently made.

¶20     In sum, the [circuit] court thoroughly considered all of the evidence relevant to the issue of R.D.S.’s competence in finding that the State had established that R.D.S.’s plea was knowingly, intelligently, and voluntarily made. See [Waukesha County v.] Steven H., [2000 WI 28,] 233 Wis. 2d 344, ¶42[, 607 N.W.2d 607]. In our review of the record, we conclude that this finding is not contrary to the great weight and clear preponderance of the evidence. ….

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