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TPR – Voluntariness of Plea

Portage Co. HHS v. Jesus S., 2010AP2698, District 4, 2/3/11

court of appeals decision (1-judge, not for publication); for Jesus S.: Theresa J. Schmieder; case activity

For a no-contest plea to a TPR petition to be knowing and voluntary, the parent must be notified of the direct consequences of his or her plea, including an automatic finding of parental unfitness, ¶6, citing Oneida Cnty. Dep’t of Social Servs. v. Therese S., 2008 WI App 159, ¶¶10-11, 314 Wis. 2d 493, 762 N.W.2d 122.  The remedy for a defective plea proceeding is a Bangert-type evidentiary hearing, ay which the county must prove by clear and convincing evidence that the parent in fact knew the information omitted by the plea colloquy. Such a hearing was conducted here, and the court upholds the trial judge’s determination that Jesus S. in fact knew that his plea would automatically result in a finding of his parental unfitness, ¶¶13-14 (the issue turned on a credibility dispute between Jesus and his trial attorney, resolved by the trial judge in favor of the attorney; that resolution wasn’t clearly erroneous and therefore is upheld on appeal).

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