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SCOW to address plea withdrawal in TPR cases

State v. A.G., 2022AP652, two petitions for review of unpublished court of appeals opinions granted 10/11/22; reversed, 2023 WI 61; case activity

Issues for review:

From the State’s petition: Whether A.G., the father who lost his parental rights, knowingly, intelligently, and voluntarily pled “no contest” to grounds for termination of his rights.

From the GAL’s petition: Whether Bangert‘s procedure governing motions to withdraw a criminal guilty plea should apply rigidly to TPR proceedings.

Also from the GAL’s petition. Whether a parent loses his right to appeal after failing to attend a remand hearing without excuse.

A.G. pled “no contest” for the “continuing CHIPS” ground for termination of his parental rights. He later argued that his plea was not knowing, intelligent, and voluntary because the trial court failed to establish during his plea colloquy that he understood the potential dispositions that would result from his plea. Plus the trial court incorrectly explained the legal standard that would apply at the disposition phase.

Wisconsin courts apply State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), a criminal case, to plea withdrawal claims in TPR cases. See Waukesha County v. Steven H., 2000 WI 28, ¶42,  233 Wis. 2d 344, 607 N.W.2d 607.   If the parent makes a prima facie showing that the circuit court violated its mandatory duties, the burden shifts to the State to prove by clear and convincing evidence that the parent knowingly and intelligently waived his right to contest the petition’s allegations.

In an earlier appeal, the court of appeals reversed the denial of A.G.’smotion to withdraw his no-contest plea and remanded the case for a Bangert evidentiary hearing. A.G. did not appear for the hearing. The State argued that a transcript from A.G.’s initial appearance 10 months prior to the plea hearing proved that he knew the potential dispositions and applicable legal standard. Later, in this appeal, the court of appeals held that based on the facts of this case the transcript alone did not do the trick. As in criminal cases, the State easily could have presented information outside the record (e.g. testimony from his lawyer) to establish what had been explained to A.G. See State v. Brown, 2006 WI 100, ¶40, 293 Wis. 2d 594, 716 N.W.2d 906

Note: The State and the GAL do not contend that Bangert should NOT apply to TPR cases. They just don’t like how the court of appeals applied it in this case. Sounds like a request for error correction.

As for the failure to appear at a hearing forfeiting the right to appeal, that would be a dramatic change in the law. If sauce for the goose is sauce for the gander, SCOW shouldn’t even reach the issue because the State and the GAL did not preserve the issue below.


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