COA: TPR defendant not misled regarding burden of proof at disposition hearing during plea colloquy

State v. N.H., 2024AP597, District I, 9/4/24 (one-judge decision; ineligible for publication); case activity

B.W. forecloses N.H’s TPR appeal that his plea was involuntary because the circuit court misled him regarding the burden of proof at the dispositional phase.

N.H was advised at his initial appearance on the State’s petition to terminate his parental rights (TPR) that the State bore the burden at the disposition phase of the case “to prove by clear, convincing and satisfactory evidence” that it was in his son’s best interests to terminate his parental rights.  In fact, the State bears the burden to prove grounds to terminate parental rights by clear and convincing evidence, Wis. Stat. § 48.31(1); but no such burden exists at the dispositional phase, where the “best interests of the child shall be the prevailing factor,” Wis. Stat. § 48.426(2).

N.H. eventually pled no contest to the grounds of the TPR.  At the plea hearing, the circuit court reviewed the rights N.H. waived by pleading no contest, including the right to require the State to prove grounds for termination by clear and convincing evidence.  The court also advised N.H. that, at the disposition hearing “there’s no right to a jury; you have all those same trial rights, but it’s always just a trial to the judge.”

N.H. filed a postdisposition motion to withdraw his plea; he argued the plea was not knowing, intelligent, and voluntary because the circuit court misinformed him at his initial appearance and at the plea hearing regarding the State’s burden of proof at the disposition hearing.  The Court of Appeals reversed the postdisposition court’s order denying the motion without an evidentiary hearing because it found that N.H. raised a prima facie case that his plea was involuntary and remanded to the circuit court for an evidentiary hearing.

N.H. testified at the evidentiary hearing he did not know the definition of a burden of proof, he understood the dispositional hearing was about his child’s best interests, and he knew the judge would decide the TPR petition based on the best interests of the child.  The circuit court again denied the postdisposition motion, and N.H. appealed.

While the case was pending in the Court of Appeals, SCOW issued B.W., which presented nearly identical facts with respect to the circuit court’s misinformation at the initial appearance and ambiguous language at the change of plea hearing regarding the State’s burden of proof at the disposition phase.  SCOW held that the circuit court “did not characterize the clear and convincing burden of proof applicable at grounds, as a trial right that would be applicable at disposition.”  (¶ 65).

With B.W. fresh off the press, N.H’s appeal was a fait accompli.  Citing B.W., the Court held that “references to ‘trial rights’ in the plea colloquy alone did not establish a prima facie” case for plea withdrawal.  (¶ 15).  “Therefore, as the basis of [N.H.’s] claim is that circuit court’s statement on the burden of proof or standard of review was only stated as a clear and convincing burden during the initial hearing, [N.H.’s] claim fails.”  (¶ 15).

Even if N.H. raised a prima facie case for plea withdrawal, the Court found that the State met its burden at the evidentiary hearing that N.H. knowingly entered his plea.  The Court cited N.H.’s testimony that he did not understand the meaning of a burden of proof and he entered the no contest plea because he wanted additional time to seek counseling and improve his case for the disposition.  “However, [N.H’s] testimony and the entire record do not support that [N.H.’s] plea was affected by the misstatement at the initial hearing.”  (¶ 16).