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State sufficiently proved parent’s pleas were knowing, intelligent and voluntary despite possible misadvice in plea colloquy

State v. S.S., 2022AP1179 & 2022AP1180, District I, 6/7/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

In yet another TPR appeal with a parent alleging a defective plea colloquy, the court of appeals finds that the State proved the plea was knowing, intelligent, and voluntary at a postdisposition hearing.

At the time of this writing, appellate practitioners are still awaiting a decision from SCOW in State v. A.G., which raises an identical legal issue involving a miscommunication of the dispositional standard during a TPR plea colloquy. This is a recurring issue in District I; see our posts on N.H. (petition for review on hold in SCOW) and Y.P.V. here and here. Given the imminence of a decision from SCOW, one might have expected the court of appeals to hold S.S. pending the resolution of A.G. or N.H. Instead, the court of appeals affirms the circuit court’s denial of “Samantha’s” motion and does not permit her to withdraw her plea(s).

As to the A.G. issue, the circuit court told Samantha, when accepting her no-contest pleas, that the State would have to prove at a dispositional “trial” that termination was in the best interest of her children to a “reasonable certainty.” (¶31). While the court assumes, without deciding, this was error, (¶35), it denies relief for two reasons. First, following the logic of T.A.D.S., the court holds that Samantha “clearly understood that the best interests of the child standard governed whether the court would terminate her parental rights.” (¶38). Second, Samantha’s postdisposition testimony also shows that Samantha struggled to give a dictionary definition of the word “burden.” (Id.). Accordingly, the State sufficiently proved Samantha’s plea was knowing, intelligent, and voluntary.

As noted above, SCOW is addressing identical issues in A.G., a case with many similarities, including the same circuit court judge. D1’s resolution of this case reflects one possible holding we might see in SCOW–that any miscommunication of the burden of proof, following T.A.D.S., is irrelevant, so long as the parent has an essential understanding that: (1) the dispositional standard is best interest and (2) the circuit court makes the ultimate decision whether to terminate.

In addition to the A.G. issue, Samantha also argued that her plea should be withdrawn due to the circuit court’s failure to adequately explain the dispositional outcomes. (¶17). Among other things, the circuit court told Samantha–whose children were subject to a CHIPS order–that it could order, at disposition, “an immediate return to your care without any involvement from child welfare authorities.” (Id.) Although the court of appeals acknowledges a dispute between the parties as to whether Samantha was legally misadvised during the colloquy, it ultimately holds that resolution of those issues is irrelevant. After all, the statute only requires that the court inform the parent of two alternatives–termination or dismissal–and Samantha concedes that the court complied with that statutory bare minimum here. (¶24).

On both claims, the court of appeals sets aside legal misadvice the parent might have received during the plea colloquy in order to focus on what it understands to be a constitutionally sufficient baseline level of understanding. Under this view, the circuit court is seemingly free to include irrelevant and even inaccurate commentary within the plea colloquy; so long as the parent understands certain fundamental concepts (a judge makes the ultimate decision using the best interest standard, for example), the parent is precluded from obtaining plea withdrawal under Bangert


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