State v. B.M., 2024AP414, District I, 9/10/24 (one-judge decision; ineligible for publication); case activity
In a replay of last week’s decision in N.H., on which we posted here, the Court of Appeals affirmed the circuit court’s order denying B.M.’s motion to withdraw her no-contest plea to the grounds of the petition to terminate her parental rights.
The parties conceded that B.M. made a prima facie case to withdraw her plea because the circuit court advised her during the plea colloquy that, at the disposition hearing, the State was required “’to prove to a reasonable certainty that adoption serves the best interest of [her] child’ and if the State did not meet its burden, then the TPR ‘petition would have to be dismissed and a different alternative would have to be pursued.’” (¶ 3). Actually, the State does not bear the burden at the dispositional phase, where the “best interests of the child shall be the prevailing factor,” Wis. Stat. § 48.426(2).
Nevertheless, the Court held that, at the evidentiary hearing regarding B.M.’s motion to withdraw her plea, the State met its burden by clear and convincing evidence that her plea was knowing, intelligent, and voluntary despite the colloquy defect. The Court cited B.M.’s testimony that, when she entered her plea, she knew there would be another hearing when the circuit court would decide what was in the best interest of her child. (¶ 17). The Court also noted that “B.M. had experienced finalized TPR cases for three of her children including a jury trial and dispositional hearing before she entered her plea . . . she told the judge in a prior TPR case that she did not need an explanation of the statutory standards because she already understood, and that she declined to ask the court any questions about the language used in the hearing or her understanding of the proceedings.” (¶ 18).
The Court concluded that B.M. testified she entered her plea “because she wanted additional time to ‘win.’ She received additional time. She did not testify that her decision making was influenced by an expectation of a higher burden of proof on the State of clear and convincing evidence.” (¶ 19).
N.H. and B.M. were held in abeyance pending SCOW’s decision in B.W., which as we stated in previous posts left open the door to contest whether a plea to the grounds of a TPR is voluntary if the circuit court affirmatively misrepresents the burden of proof that will apply at the disposition phase before the plea is entered. N.H. and B.M. suggest that respondents will need to show a causal relationship between the court’s misrepresentation of the burden of proof at the disposition phase and the decision to enter a plea to prevail on a claim to withdraw the plea. Meanwhile, this area of the law is potentially volatile as SCOW granted the petition for review on Sep. 11, 2024, in H.C., where it will address whether a burden of proof at the dispositional phase is a constitutional requirement.
