COA: Although plea in TPR appears “questionable,” parent did not prove manifest injustice meriting plea withdrawal
State v. B.A.J., 2025AP1476-77, 4/2/26, District I (ineligible for publication); case activity
In a case that demonstrates the high burden that parents must satisfy to withdraw their pleas, COA affirms despite also acknowledging the “questionable” nature of this mentally ill parent’s plea.
This case involves a young parent who has faced many obstacles during her short life:
The medical and court records in this case establish that Bethany has suffered from various mental health conditions since childhood, including oppositional defiance disorder, depression, ADHD, unspecified mood disorders, and bipolar disorder. Bethany also has a history of drug addiction and has previously been confined to a mental health facility under WIS. STAT. ch. 51. Furthermore, on several occasions during the pendency of these termination of parental rights (TPR) proceedings, Bethany was confined to jail in Milwaukee and Sheboygan counties in unrelated matters, which resulted in delays in these TPR cases and made it more difficult for Bethany to appear in court and to communicate with her lawyer.
(¶2). Bethany ultimately entered no contest pleas as to grounds in this TPR matter. (¶7). Bethany “minimized” her mental health history in the ensuing colloquy and the circuit court asked no follow-up questions on that topic. (Id.).
Bethany then appeared at another hearing where she made a number of illogical and concerning statements in what COA describes as a “lengthy, rapid, and rambling monologue.” (¶8). Thereafter, counsel filed a motion seeking an assessment of Bethany’s competency to proceed. (¶9). At the next hearing, Bethany continued to make further statements evincing her detachment from reality. (¶10). The court agreed to order a competency evaluation to determine competency “moving forward” but asserted that Bethany was competent when she entered her pleas. (¶12). Even though Bethany’s lawyer and a GAL appointed to represent her interests asked the court to reconsider the scope of the examination, the court refused. (¶13). Thereafter, the appointed examiner found Bethany incompetent to proceed. (¶14). In light of that report, appointed counsel and Bethany’s GAL again asked the court to reconsider Bethany’s competency at the time of her plea. (¶15). The court once again refused to entertain those requests, telling the attorneys that “competency is not an issue” in this type of proceeding. (¶16). Appointed counsel then obtained additional records and filed a formal motion to withdraw the plea, which was denied. (¶17).
Postdisposition, Bethany retained the services of the expert who had previously examined her and moved to withdraw her pleas yet again. (¶20). The expert “concluded that there were significant concerns about whether Bethany had been competent to enter a plea in June 2023, but acknowledged that she could not say with certainty if Bethany was competent or not competent at the time of the plea.” (Id.). The postdisposition court denied the postdisposition motion for plea withdrawal, finding that Bethany had not met her burden of proof. (¶21).
Although Bethany points to numerous pieces of evidence suggesting incompetency, that evidence is not dispositive when retroactively determining Bethany’s competency. (¶25). Moreover, the expert could not conclusively opine that Bethany was in fact incompetent at the time she entered her plea. (Id.). According to COA:
It is clear from the record that Bethany suffers from numerous complicated mental health disabilities and conditions and that she has been incompetent to act in her own interest on more than one occasion, sometimes for extended periods of time. There is no dispute that Bethany was not competent to represent her own interests in this case starting as early as November 2023. However, Bethany met with counsel in person on the day that she entered the pleas, and following that meeting, counsel recommended she enter the pleas despite knowledge of a prior competency concern in the Sheboygan County case; at that hearing, Bethany acted and responded appropriately to the colloquy. Therefore, on the basis of all of the evidence in the record before us, it is not clear that Bethany was incompetent when she entered the no contest pleas to grounds in June 2023.
(¶27).
Thus, even though COA agrees “that the record evidence and expert reports suggest a ‘questionable plea,’ Bethany was required to prove a manifest injustice—that she was not competent to enter a plea—by clear and convincing evidence in order to be entitled to plea withdrawal. She did not meet her burden. We therefore affirm the circuit court.” (¶28).
Three brief comments about this TPR decision:
- In a footnote, COA notes that Bethany is not appealing the circuit court’s denial of the pre-disposition motion to withdraw the plea. One citable case seems to suggest that the criminal presentencing standard would apply to that motion. However, this is an open legal question and it is unclear what authority counsel cited or what standard they were asking the circuit court to apply pre-disposition. Moreover, appeal of Bethany’s pre-disposition motion would likely be assessed under the exceedingly favorable deferential standard of review, which may explain why Bethany instead tried to fit this case into the postdisposition framework.
- The case demonstrates the absurdly hard lift faced by litigants trying to retroactively prove incompetency years after the entry of a plea. Bethany seemingly comes as close as possible by getting COA to accept the “questionable” validity of this plea but, under the standard, this simply isn’t enough.
- Finally, what would have happened if the circuit court found Bethany incompetent to enter a plea pre-dispo? It seems like this would have temporarily reopened the litigation as to grounds but, crucially, would not have necessarily derailed the case as it would have then been up to her GAL to determine whether contesting grounds was in Bethany’s interests, see I.P. v. State, 106 Wis. 2d 106, 116, thereby obviating this multi-year litigation saga.