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  • July 13, 2023

    Court’s Use of Wrong Evidentiary Standard Not Grounds for Withdrawing TPR Plea

    A circuit court told a parent the wrong evidentiary standard it would use in deciding whether to terminate his parental rights, but that was not grounds for allowing the parent to withdraw his no contest plea, a divided Wisconsin Supreme Court has held.

    Jeff M. Brown

    A Wooden Cutout Of A Mother And A Father Holding Hands With A Child Between Them, With A Judge's Gavel Lying Next To Them

    July 13, 2023 – A circuit court told a parent the wrong evidentiary standard it would use in deciding whether to terminate his parental rights, but that was not grounds for allowing the parent to withdraw his no contest plea, a divided Wisconsin Supreme Court has held in State v. A.G., 2023 WI 61 (June 30, 2023).

    Justice Rebecca Bradley announced the mandate and delivered an opinion, joined by Chief Justice Annette Ziegler. Justice Brian Hagedorn wrote a concurrence, joined by Justice Jill Karofsky. Justice Rebecca Dallet dissented, joined by Justice Ann Walsh Bradley. Justice Patience Roggensack did not participate.

    Allegations of Drug Use

    The state filed a petition in Milwaukee County Circuit Court alleging that A.G.’s daughter was a child in need of protection of services (CHIPS).

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Eight months after those pleas, in a petition to terminate parental rights (TPR), the state alleged that A.G. and the child’s mother were heroin addicts and that the child tested positive for drugs when she was born.

    The state alleged the following grounds for the TPR petition: 1) continuing CHIPs; and 2) failure to assume parental responsibility.

    Two-phase Hearing

    During an initial appearance, the circuit court gave A.G. a detailed explanation of the TPR proceedings.

    The circuit court told A.G. that if the state established that grounds existed to terminate his parental rights in the first phase, the court would hold a “contested dispositional hearing” at which the focus would be on the best interest of the child.

    In that phase, the court told A.G., the court could order the termination of his parental rights. But, the court said, there could also be other outcomes “that don’t involve termination of parental rights.”

    No Contest Plea

    In a later hearing, A.G. pled no contest to the continuing CHIPS ground, and the circuit court dismissed the failure to assume parental responsibility ground.

    During the plea colloquy, A.G. said that he understood that:

    • he was giving up the trial rights during the first, “grounds” phase;

    • the second phase was where the court would decide whether terminating his parental rights was in his daughter’s best interest; and

    • that he was not giving up his trial rights in the second phase.

    The circuit court determined that terminating A.G.’s parental rights was in the child’s best interest. In announcing that decision, the court twice mentioned that evidence in support of that decision was clear and convincing.

    After the circuit court terminated A.G.’s parental rights, he filed a motion to withdraw his plea, on the grounds that it wasn’t knowing, voluntary, and intelligent. The court denied the motion without taking evidence.

    A.G. appealed. The Wisconsin Court of Appeals held that the circuit court failed to advise A.G. of the potential dispositions of the second phase of the hearing; it reversed the circuit court and remanded the case for an evidentiary hearing.

    A.G. didn’t appear at that hearing, and the circuit court again denied his motion to withdraw his plea.

    A.G. appealed that decision. The court of appeals reversed and ordered the cause remanded with directions to allow A.G. to withdraw his plea.

    The state appealed.

    Circuit Court’s Finding Was Not Erroneous

    Before the supreme court, A.G. argued that his plea was defective because the circuit court didn’t tell him of the potential dispositions if he entered a no-contest plea – specifically, that in the second phase, the court would either terminate his parental rights or not terminate his parental rights.

    However, Justice R. Bradley reasoned in her opinion that A.G.’s appeal could be answered on narrower grounds.

    She pointed out that the circuit court had held an evidentiary hearing and found that A.G. had understood the potential dispositions, based on the testimony A.G. had given at the dispositional hearing, which was held the day after the plea colloquy occurred.

    That finding was not clearly erroneous, Justice R. Bradley concluded, so the supreme court accepted it as true.

    Justice R. Bradley also pointed out that A.G. “received what the circuit court told him he would receive” – a hearing in which the court held the state to a clear-and-convincing standard, even though it wasn’t clear the law required the state to meet that standard.

    “A.G. was not inhibited from weighing the pros and cons of entering this particular no contest plea by being told that the State would have to satisfy a particular burden of proof because the State was actually held to and did satisfy that burden,” R. Bradley wrote.

    Hagedorn Concurrence: Circuit Court Followed Statute

    Justice Hagedorn noted in his concurrence that the circuit could never said that it would apply the clear-and-convincing standard in the second, dispositional phase. Rather, it mentioned that standard with regards to the first, grounds phase.

    When it turned to explain the dispositional phase to A.G., Justice Hagedorn wrote, the circuit court “followed the statutory language and explained that it would render a decision based on the best interests of the child.”

    “Sure, the circuit court could have been a bit more precise,”  Hagedorn wrote. “But the record shows that A.G. was informed ten months before entering his plea that in the second phase of the TPR proceeding, the focus shifted to what was in the child’s best interest.”

    Dissent: Plea Was Defective

    Justice Dallet argued in her dissent that the only issue raised by A.G.’s appeal was whether the state had shown by clear and convincing evidence that A.G. knew which standard would apply during the dispositional phase.

    Dallet argued that the court told A.G. that the state would have to prove by clear and convincing evidence that terminating his parental rights was in the best interest of the child.

    “But that is not the statutory standard that applies to the dispositional phase under the court of appeals’ prior ruling in this case,” Justice Dallet wrote. “Thus, A.G.’s plea colloquy was defective.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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