State v. L.N.H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 13, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP209 Cir. Ct. No. 2020TP247

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF A.C., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

L.N.H.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.
No. 2022AP209

¶1 WHITE, J.1 Lucy appeals the order terminating her parental rights
to her son, Anthony, and the order denying her postdisposition motion without a
hearing.2 Lucy argues that the circuit court erred when it did not allow her to
withdraw her voluntary consent to the termination of parental rights (TPR)
petition. She argues her plea was not entered knowingly, intelligently, and
voluntarily because she was unaware of the consequences of her plea. Upon
review, we affirm the circuit court.

BACKGROUND

¶2 In November 2020, the State filed a petition to terminate Lucy’s
parental rights to Anthony. As alleged in the petition, the Division of Milwaukee
Child Protective Services (DMCPS) received a referral that Lucy had given birth
to Anthony in March 2018; she previously had a child removed by DMCPS.
Anthony was placed in newborn intensive care for severe drug withdrawal
symptoms, although he tested negative for drugs in his system. The dispositional
order was entered on August 30, 2018, and Anthony remained in an out-of-home
foster placement after that time. The petition alleged continuing CHIPS3 and
failure to assume parental responsibility as grounds for the TPR, pursuant to WIS.
STAT. § 48.415(2) and (6). The petition alleged that Lucy had failed to comply

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
To protect confidentiality and for ease of reading, we refer to the family involved in
this case by pseudonyms. We refer to L.N.H. as “Lucy”; her son A.C., as “Anthony”; A.C.’s
father, as “Adam”; and S.C., L.N.H.’s cousin and Anthony’s foster parent, as “Sophia.” See WIS.
STAT. RULE 809.19(1)(g).
3
“CHIPS is the commonly used acronym to denote the phrase ‘child in need of
protection or services’ as used in the Wisconsin Children’s Code, chapter 48, Stats.” Marinette
Cnty. v. Tammy C., 219 Wis. 2d 206, 209 n.1, 579 N.W.2d 635 (1998).

2
No. 2022AP209

with the conditions of the dispositional order. Lucy was required to control her
drug and alcohol addiction, as well as control her mental health for panic disorder,
social anxiety, and ADHD. Further, she was required to commit no crimes and
resolve her criminal cases, which included charges for a hit-and-run, child neglect,
operating a vehicle with a revoked driver’s license, and operating while
intoxicated. Additionally, the conditions required her to keep her child safe; she
had a history of domestic violence with Adam and a no-contact order with him.

¶3 The TPR proceedings were held over Zoom video conferencing
because of the Covid-19 pandemic. At the final pretrial on August 13, 2021, Lucy
did not appear and the court granted the State’s motion for default as to the TPR
petition on the grounds component of the TPR proceedings because of her
nonappearance at the hearing, which was at least the second hearing she missed,
despite being told she needed to attend all hearings. Further, Lucy’s trial counsel
moved to withdraw and informed the court that communication had broken down
between herself and Lucy. The court held counsel’s motion under advisement.

¶4 The following week on August 16, 2021, at the scheduled trial date
on the grounds for the TPR petition regarding Adam’s parental rights, Lucy
appeared and her trial counsel informed the court that Lucy was contemplating a
voluntary consent to the TPR. First, Adam decided to plead no contest to the
grounds and to not have a trial; after a colloquy with Adam, the court accepted
Adam’s no contest plea and found him an unfit parent.

¶5 The court then turned to Lucy’s request to voluntarily consent to the
TPR. It engaged in a colloquy with Lucy and reminded her that if she didn’t
“understand something I say, please say, Judge, I don’t understand what you just
said and then I will explain myself, okay?” Lucy replied, “Yes, your Honor.” The

3
No. 2022AP209

court ascertained Lucy’s age—forty-three—and that she had an associate’s degree,
and that she was “able to read and write and understand the English language.”
Further, the court ensured she had received a copy of the November 2020 TPR
petition, reviewed it with her attorney, and understood its contents. The court
asked Lucy if she felt “comfortable and confident” that she understood what was
happening in this court? Lucy replied, “Yes, your Honor.” The court
acknowledged “this is a very emotional decision” and that if Lucy wanted a “time
out” at any point, she should ask.

¶6 The circuit court reviewed the rights that Lucy would be giving up if
she consented to the termination, which included the “right to fight against the
termination of parental rights at a trial”; the “right to testify yourself and with the
help of your lawyer call other witnesses to testify about the facts in the petition”;
the “right to force the state or the petitioner to prove the facts in the petition that
they are true or substantially true to a reasonable certainty by clear, satisfactory
and convincing evidence”; and the “right to have a jury decide whether [the State]
did or did not meet this burden of proof[.]”

¶7 The circuit court explained the consequences of termination and
questioned Lucy if she understood she was giving up these rights:

[Y]our right to have the child live with you and provide for
the child’s daily needs, food, clothing, shelter,
guardianship, that is the right and responsibility to make
decisions that effect your child’s long-term welfare,
education, medical care and religious upbringing, visitation
and communication, you are forever surrendering your
right to any legal recognized right to visit, communicate or
force others to communicate with you about how your child
is doing.

4
No. 2022AP209

Addressing outcomes, the court stated

[THE COURT:] Now, [Sophia] has been identified as the
adoptive resource. I can’t promise you that she will adopt
or some other alternative, guardianship of your child but if
she did not adopt and she did not become the guardian, I
would have to find someone else to become the guardian of
the child. Do you understand?

[LUCY:] Yes, your Honor.

Then, the court asked Lucy to tell him “why you have decided to voluntarily
consent to your parental rights being terminated?” Lucy replied, “Because I really
don’t believe that I am going to be able to and he is better off being with my
cousin. She takes good care of him and he is happy and they love him very much
and I just want what is best for him.” On the topic of why Lucy wanted Sophia to
have the guardianship, Lucy stated that she wanted to have Anthony “around his
brothers and sisters” that are in West Virginia, where she and some of her
extended family and some of Adam’s extended family lives. She stated that she
had seven children in total, with her oldest, age twenty-five, living with her.

¶8 The court informed Lucy of her appeal rights, and informed her that
“your right to appeal is not [thirty] days for you to change your mind or think
about your decision.” The court informed her that the decision was “permanent” if
accepted and “pretty much etched in stone unless” Lucy could show that
“something went wrong in court today[.]” Lucy would need to comply with the
appeal procedure and “convince the appeals court that something significantly
went wrong and that occurred in these proceedings.” The court accepted Lucy’s
voluntary consent to termination.

¶9 Two days later, on August 18, 2021, the parties returned to court and
the court wanted to know the status of the guardianship petition explaining it

5
No. 2022AP209

would stay with this court, even if it were separately filed. The court sought
opinions on the guardianship. Lucy’s trial counsel stated to the court and parties:

[I]n terms of my previous conversations with [Lucy] she
strongly feels whether it’s a guardianship or whether it’s a
termination that the child should remain placed with the
relatives in West Virginia. That is her position and it’s her
position and she understands that her relationship with the
adoptive—with the foster placement is rather strained and
she would like to get that in balance with that relationship
so her position would be either guardianship or adoption,
that would be fine with her as long as the child remains in
West Virginia.

¶10 The GAL and the ongoing case manager both expressed that Adam
was involved and wanted to stay involved in Anthony’s life. Adam’s counsel
argued that the court should not terminate Adam’s parental rights. The court
summed up that Lucy “voluntarily consented to have her parental rights
terminated and that leaves one parent in place, [Adam,] and if [Adam and Sophia]
come to an agreement on how they want to proceed, I don’t want to get in the way
of that….” Ultimately all parties agreed to guardianship, although Sophia
expressed a preference for adoption.

¶11 Lucy did not appear at the next hearing on November 3, 2021. The
court and Lucy’s counsel discussed the breakdown in communication between
Lucy and counsel. The court also asked about a notice of intent to appeal Lucy
filed in August. The court asked what Lucy was appealing, as there was no final
order. Lucy’s counsel stated she did not know. The court found Lucy’s
nonappearance at the hearing to be egregious and without excuse, and defaulted
her on the dispositional phase, the second stage in a voluntary consent to TPR
under WIS. STAT. § 48.41(1).

6
No. 2022AP209

¶12 The State moved forward with the disposition of Lucy’s rights.
The ongoing case manager testified about Anthony’s health, time in care, and
placement with Sophia since November 2019. The ongoing case manager testified
that Anthony is aware that Lucy is “someone important in his life” but he “doesn’t
look to her for his basic needs. He doesn’t call her mom.” Lucy has had virtual or
in-person visits over the years, with her missing visits for some periods of time
and DMCPS having concerns about active alcohol abuse and her mental state. She
testified that Lucy’s last in-person visitation with Anthony was in summer 2021.

¶13 The ongoing case manager testified that there was a trial
reunification with Lucy when Anthony was very small, but it ended because Lucy
reported ongoing domestic violence between her and Adam. She wanted to move
to West Virginia and DMCPS attempted to support her, but she was revoked on
her probation for drinking alcohol. Anthony (and an older sister) were returned to
Wisconsin; DMCPS tried reunification with Adam with a safety plan that he was
not allowed to have any direct contact with Lucy. However, during a “pop-in”
visit, a DMCPS case worker found Lucy and Adam together. She testified that
Lucy and Adam had an “on again, off again” type relationship, which they were
not honest about with DMCPS over the years.

¶14 The circuit court then made findings of fact reviewing the six
required statutory considerations under WIS. STAT. § 48.426(3).4

4
By statute, in making a decision on the disposition of a TPR petition, the prevailing
factor is the best interests of the child. In doing so, the circuit court must consider, but is not
limited to, the following factors:

(a) The likelihood of the child’s adoption after termination.

(continued)

7
No. 2022AP209

There’s nothing about the age or health of the child that
would be a barrier to either adoption or guardianship.

The child was removed from the parents’ home almost over
two years ago. The child … does not have a substantial
parental relationship with his mother. The child knows
who his father is, at least his father visits with him twice a
week.

The child does not have a substantial parental relationship
with any other family members or siblings, and it will not
be harmful to this child to sever the legal relationships that
he has with his mother or any siblings or any other
maternal family members.

The child is too young to tell you what his wishes are
regarding adoption or guardianship.

The child has been separated from his mother and father
and placed in foster care for over two years.

If I grant the petition for termination of parental rights, the
child will be able to enter into a more permanent family
relationship, that relationship with his mother’s rights being
terminated and guardianship being placed with [Sophia]
and leaving [Adam’s] parental relationship—sorry—
leaving the relationship with the child intact.

(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was removed
from the home.

(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.

(d) The wishes of the child.

(e) The duration of the separation of the parent from the child.

(f) Whether the child will be able to enter into a more stable and
permanent family relationship as a result of the termination,
taking into account the conditions of the child’s current
placement, the likelihood of future placements and the results of
prior placements.

WIS. STAT. § 48.426(3).

8
No. 2022AP209

Considering this evidence in light of the best interests
standard, the court concludes as a matter of law that a
termination of parental rights as to [Lucy] has been proven
by clear and convincing and satisfactory evidence and that
it is in the best interests of the child that [Lucy’s] parental
rights are terminated.

On November 9, 2021, the order terminating Lucy’s parental rights was signed by
the court.

¶15 On January 14, 2022, the circuit court held a hearing on the State’s
guardianship petition. It approved naming Sophia as Anthony’s guardian and
decided it was not in Anthony’s best interests to terminate Adam’s parental rights.

¶16 Lucy appealed and in April 2022, this court, upon Lucy’s motion,
remanded the case to the circuit court to allow her to file a postdisposition motion
seeking to vacate her consent to the TPR. Lucy moved to reopen the judgment
pursuant to WIS. STAT. § 806.07(1)(h) because her consent was not knowingly or
intelligently made. Lucy argued that at the time she entered consent to the
voluntary TPR, she “did so with the knowledge and understanding that a
guardianship petition would be filed by or on behalf of [Sophia], and if the
guardianship went through, the State would dismiss its petition to terminate her
parental rights.” Lucy contended that she consented “with the knowledge and
understanding that her parental rights would only be terminated if the father’s
parental rights were also terminated.” Lucy “maintain[ed] that she did not know
or understand that her rights could be terminated even if [Sophia] became
[Anthony’s] guardian, and/or if the father maintained his parental rights.” Lucy
contended that she did not “fully understand the possible outcomes and
consequences of her consent to termination when she entered it.”

9
No. 2022AP209

¶17 The circuit court held a hearing on June 28, 2022. The court
reviewed the procedural history of the case, the guardianship being granted to
Sophia, and the thorough colloquy it conducted with Lucy over the rights she was
giving up if she voluntarily consented. The court noted Lucy’s assent to
understanding and accepting each issue. The court stated:

Now, I do not remember there being any bargain between
the [c]ourt and [Lucy] that her consent was not conditional
in any way. There was a conversation the [c]ourt had with
[Lucy] about whether … it could be either a guardianship
or an adoption. There was no conversation that the [c]ourt
had with [Lucy] as to whether or not it would only
terminate her parental [] rights if it terminated the parental
rights of the father. I am not sure where that came from as
far as her knowledge and understanding but that is not an
understanding she had with the [c]ourt and I had the
colloquy with her so it was not conditional and there was
no bargaining between the [c]ourt and [Lucy] so if her
reasoning is that I should vacate the judgment and order
terminating her parental rights, I do not agree with that and
I am doing so without a hearing because there is nothing—
and the record speaks for itself as to what she wanted to do
and what she did do and she was informed it would be
almost irreversible unless she can demonstrate that
something significantly went wrong during the hearing. I
couldn’t find anything in the record that went significantly
wrong. She may not be happy with the outcome but there
wasn’t a bargain between the [c]ourt and [Lucy] or as I
understand it, anyone else but that’s my decision[.]

The court denied the motion to withdraw her voluntary consent without an
evidentiary hearing. Lucy appeals.

DISCUSSION

¶18 Lucy renews her postdisposition motion arguments and seeks to
withdraw her voluntary consent to the TPR because she argues it was not
knowingly and intelligently made. The State argues that the circuit court complied
with the required colloquy to ensure Lucy’s consent was knowing, intelligent and

10
No. 2022AP209

voluntary. Further, the State and GAL assert that the circuit court did not err in
exercising its discretion to deny the motion for plea withdrawal without an
evidentiary hearing.

¶19 A parent may voluntarily consent to a TPR petition in accordance
with WIS. STAT. § 48.41. The circuit court’s determination that a parent’s consent
to TPR is voluntary and informed is a question of law we review independently.
T.M.F. v. Children’s Serv. Soc’y, 112 Wis. 2d 180, 188, 332 N.W.2d 293 (1983).
However, that legal conclusion is “derived from and intertwined with the [circuit]
court’s factual inquiry during which the [circuit] court has had the opportunity to
question and observe the witnesses; the [circuit] court is thus better prepared to
reach a just and accurate conclusion than is an appellate court.” Id. Although the
circuit court’s decision is not controlling, it is given weight by this court. Id.

¶20 Before accepting a parent’s voluntary consent to TPR, the circuit
court “must explain[] the effect of termination of parental rights” and have
“questioned the parent … and [be] satisfied that the consent is informed and
voluntary.” WIS. STAT. § 48.41(2)(a). To ascertain whether consent is “voluntary
and informed” the circuit court must consider the following on the record:

1. the extent of the parent’s education and the parent’s
level of general comprehension;

2. the parent’s understanding of the nature of the
proceedings and the consequences of termination, including
the finality of the parent’s decision and the circuit court’s
order;

3. the parent’s understanding of the role of the guardian ad
litem (if the parent is a minor) and the parent’s
understanding of the right to retain counsel at the parent’s
expense;

11
No. 2022AP209

4. the extent and nature of the parent’s communication
with the guardian ad litem, the social worker, or any other
adviser;

5. whether any promises or threats have been made to the
parent in connection with the termination of parental rights;

6. whether the parent is aware of the significant
alternatives to termination and what those are.

T.M.F., 112 Wis. 2d at 196-97. If the court is satisfied that the consent is
voluntary and informed, then it “may proceed immediately to a disposition of the
matter after considering the standard and factors specified in
[WIS. STAT. §] 48.426.” Sec. 48.41(1).

¶21 Lucy argues she was not aware of the consequences of her consent.
In her affidavit accompanying her postdisposition motion, Lucy alleged that she
believed that if the guardianship were granted, the TPR action would be dismissed
and her parental rights would be maintained. The record reflects that after Lucy
brought up her possible voluntary consent to the TPR during the court
proceedings, no person, attorney, or judicial officer stated that Lucy’s rights
should be or would be maintained if a guardianship were granted. Her counsel
relayed her position on multiple occasions—always focused on having Anthony
stay in West Virginia. When the circuit court directly asked her about why she
was voluntarily consenting, she stated that “I really don’t believe that I am going
to be able to and he is better off being with my cousin. She takes good care of him
and he is happy and they love him very much and I just want what is best for
him.” She did not express that she wanted to retain her rights or that her consent
was dependent or conditional on similar action taken for Adam.

12
No. 2022AP209

¶22 In T.M.F., our supreme court reversed a voluntary consent to a TPR
because the record before it did not show that the mother’s consent was voluntary
and informed. It considered the plea colloquy “cursory and perfunctory,” noting:

The record is replete with T.M.F.’s responses, consisting of
a simple “U’m h’m” or “Yeah,” to leading and complex
questions asking whether T.M.F. understood the nature of
the proceedings, the explanation of the alternatives
available to her, and the explanation of the consequences of
her consent, and whether she was ready to make a
commitment to the court to give up her child.

Id., 112 Wis. 2d at 189. Our supreme court criticized the circuit court for not
asking T.M.F. questions “which would have required her to explain in her own
words what she understood and what her reasons were for terminating her parental
rights.” Id. at 195. Here, Lucy was asked a series of long questions regarding her
rights and understanding, for which she gave short affirmative answers, but the
circuit court did ask her to explain in her own words why she wanted to
voluntarily consent to the TPR. She gave a thorough answer and the court asked
responsive follow-up questions. The record reflects Lucy’s strong concern that
Anthony stay in West Virginia. It does not show any expectation, request, or
desire on Lucy’s part that her rights would be maintained if the guardianship
occurred or if Adam’s rights were not terminated. The record also supports the
circuit court’s assertion that it did not remember a “bargain” between it and Lucy
that showed her consent was “conditional in any way.”

¶23 Lucy concedes that the circuit court complied with the “basic
information” required under Wisconsin law. See T.M.F., 112 Wis. 2d at 196-97.
She argues that the plea colloquy was not deficient, but that her mistaken
understanding arose from her conversations with trial counsel and her

13
No. 2022AP209

interpretation of the information received from trial counsel.5 The State argues
that Lucy has failed to alleged deficiencies in the plea colloquy and that there were
no deficiencies in the plea colloquy. Therefore, it contends her motion fails.

¶24 To understand our standard of review, we turn to the general legal
principles behind plea withdrawal, drawn from the criminal law context, but
applied under similar reasoning in TPR cases. Brown Cnty. v. Shannon R., 2005
WI 160, ¶59, 286 Wis. 2d 278, 706 N.W.2d 269 (“[T]ermination of parental rights
proceedings deserve heightened protections because they implicate a parent's
fundamental liberty interest.”). “When a defendant seeks to withdraw a guilty plea
after sentencing, [the defendant] must prove, by clear and convincing evidence,
that a refusal to allow withdrawal of the plea would result in ‘manifest injustice.’”
State v. Brown, 2006 WI 100, ¶ 18, 293 Wis. 2d 594, 716 N.W.2d 906 (citation
omitted). One way the defendant can show manifest injustice is to prove that the
plea was not entered knowingly, intelligently, and voluntarily. State v. Taylor,
2013 WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482. A defendant can show that a
plea was not entered knowingly, intelligently, and voluntarily by alleging
deficiencies in the plea colloquy by the circuit court failing to “fulfill the duties
mandated in WIS. STAT. § 971.08 or under the Bangert line of cases[.]” Taylor,
347 Wis. 2d 30, ¶32. Alternately, “when the defendant alleges that some factor

5
Lucy argues that under State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d
24, matters outside of the plea colloquy can be considered in determining the voluntary consent of
a plea. The State points out that Jenkins is a presentencing plea withdrawal case, which has not
been applied to postdisposition TPR cases. In the review of plea withdrawal for a no contest plea
to the grounds for a TPR grounds, we have treated the request for postdisposition plea withdrawal
to be akin to post-sentencing plea withdrawal, applying a Bangert analysis. See Waukesha Cnty.
v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607, holding modified on other
grounds by St. Croix Cnty. DHHS v. Matthew D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d
107; State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). We conclude that Jenkins is not
applicable to the procedural posture of Lucy’s motion.

14
No. 2022AP209

extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion,
renders a plea infirm,” the defendant makes a motion for relief under the
Nelson/Bentley standard.6 State v. Howell, 2007 WI 75, ¶74, 301 Wis. 2d 350,
734 N.W.2d 48.

¶25 Although Lucy considers her misunderstanding to have arisen
extrinsic to the plea colloquy, when we review the six required duties for the court
during a voluntary consent to a TPR, we consider that Lucy’s complaint falls
under whether the circuit court ascertained “the parent’s understanding of … the
consequences of termination.” T.M.F., 112 Wis. 2d at 196. On that basis, an
allegation of a flawed plea colloquy falls under a Bangert analysis, which would
require her to (1) make a prima facie showing of the court’s violation of a
mandatory duty, and (2) allege that she “did not, in fact, know or understand the
information that should have been provided during the plea colloquy.” Taylor,
347 Wis. 2d 30, ¶32; Waukesha Cnty. v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d
344, 607 N.W.2d 607, holding modified on other grounds by St. Croix Cnty.
DHHS v. Matthew D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d 107.

¶26 In Lucy’s postdisposition motion, she argues that she was unaware
that the outcome that occurred—terminating her rights despite the court granting
the guardianship and maintaining Adam’s rights—was a possible consequence of
her voluntary consent. The record reflects that there was no discussion of the
State dismissing Lucy’s TPR action at disposition; however, this outcome was
discussed when Adam considered pleading no contest to the grounds. There was

6
See Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972); State v. Bentley, 201
Wis. 2d 303, 548 N.W.2d 50 (1996).

15
No. 2022AP209

no discussion that the court would accept Lucy’s voluntary consent, but then deny
the TPR at disposition and maintain her rights during the guardianship. However,
Lucy fails to explain why this was information the court should have ascertained
about Lucy’s understanding. See Brown Cnty. v. Brenda B., 2011 WI 6, ¶53, 331
Wis. 2d 310, 795 N.W.2d 730 (holding that statutory requirement that the court
inform parents about possible dispositions should be relevant to the plea, but does
not require “hypothetical but improbable outcomes”). Further, she has not alleged
why she did not ask questions about this issue during the plea colloquy. The
record reflects that the circuit court provided a thorough explanation of the
consequences of termination during the plea colloquy. We conclude that Lucy has
failed to make a prima facie case that the circuit court failed to fulfill its duties
under T.M.F. to ascertain her consent was informed and voluntary with regard to
the consequences of the termination. See T.M.F., 112 Wis. 2d at 188; Steven H.,
233 Wis. 2d 344, ¶51. Therefore, under a Bangert analysis, her claim for plea
withdrawal fails.

¶27 Alternately, we address her argument that her mistaken
understanding as an issue entirely outside of the plea colloquy, arising out of not
understanding there was a possible outcome that ultimately terminated her rights
despite the guardianship and allowed Adam to retain his parental rights. However,
Lucy has failed to allege sufficient material facts to warrant relief for the alleged
manifest injustice. The circuit court holds an evidentiary hearing on a motion for
plea withdrawal if the party’s motion “alleges facts which, if true, would entitle
the defendant to relief[.]” Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629
(1972). However, the circuit court has discretion to deny such a motion without a
hearing if the defendant fails to allege sufficient material facts in the motion,
presents only conclusory allegations, or “if the record conclusively demonstrates

16
No. 2022AP209

that the defendant is not entitled to relief.” Id. at 497-98. A party seeking plea
withdrawal “must do more than merely allege that he [or she] would have pled
differently; such an allegation must be supported by objective factual assertions.”
State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996).

¶28 Under the Nelson/Bentley standard, we conclude Lucy’s allegations
are conclusory. She alleged that her trial counsel “informed” her that her “parental
rights would not be terminated if there was a guardianship by [Sophia] in place
and if [Adam] maintained his parental rights.” A parent seeking postdisposition
relief must allege “who, what, where, when, why, and how” in the motion itself to
allow the court to meaningfully review the claim. See State v. Allen, 2004 WI
106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433. Lucy does not provide factual
allegations upon which we can meaningfully review her claim of mistaken
understanding. See id. As proof of her intentions, she can only point to the
premature notice of intent to pursue postdisposition relief that she filed in August
2021, shortly after the plea colloquy on her voluntary consent, but before the
termination was ordered in November 2021. This does not provide sufficient
material facts or even a reasonable inference of such facts that her motion warrants
an evidentiary hearing, much less an order to allow her to withdraw her plea.
Therefore, we conclude her claim fails under the Nelson/Bentley standard for plea
withdrawal.

¶29 Additionally, we conclude that the circuit court did not err when it
denied Lucy’s postdisposition motion for plea withdrawal without an evidentiary
hearing. We again apply the same standards and reasoning for plea withdrawal in
the criminal context. To warrant an evidentiary hearing on a postconviction
motion to withdraw a plea of guilty, or no contest, the defendant must satisfy the
requirements of Bangert or Nelson/Bentley.” See Howell, 301 Wis. 2d 350, ¶24.

17
No. 2022AP209

A reviewing court reviews a circuit court’s exercise of its
discretion to grant or deny a hearing when as a matter of
law the defendant’s motion fails to allege sufficient facts
entitling the defendant to relief or presents only conclusory
allegations, or the record, as a matter of law, conclusively
demonstrates the defendant is not entitled to relief. This
review determines whether the circuit court erroneously
exercised its discretion.

Id., ¶79. Lucy has failed to allege sufficient material facts to make a prima facie
claim under Bangert or Nelson/Bentley. Her allegations are conclusory and
therefore, we conclude that the circuit court did not erroneously exercise its
discretion when it denied her motion without a hearing.

CONCLUSION

¶30 For the reasons stated above, we conclude that Lucy’s consent to the
termination of her parental rights to Anthony was voluntary and informed.
Further, we conclude that the circuit court did not erroneously exercise its
discretion when it denied her postdisposition motion without a hearing.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

18