State v. E.R.W. ( 2021 )

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.
June 9, 2021
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 Nos. 2020AP1778 Cir. Ct. Nos. 2018JC120
2018JC121
2020AP1779 2018JC122
2020AP1780
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
NO. 2020AP1778
IN THE INTEREST OF A.N.B., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
E.R.W.,
RESPONDENT-APPELLANT.
NO. 2020AP1779
IN THE INTEREST OF M.W.B., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
E.R.W.,
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RESPONDENT-APPELLANT.
NO. 2020AP1780
IN THE INTEREST OF E.L.G., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
E.R.W.,
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Kenosha County:
DAVID P. WILK, Judge. Affirmed.
¶1 DAVIS, J.1 In this consolidated appeal, “Eileen” appeals from:
(1) WIS. STAT. ch. 48 dispositional orders finding her children “Erika,” “April,”
and “Mark”2 in need of protection or services (CHIPS); and (2) an order denying
her postdisposition motion to withdraw her no-contest pleas in the CHIPS actions.
Eileen seeks review of the latter order on the grounds that the CHIPS petition does
not reflect a sufficient factual basis for her pleas.
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.
2
To preserve confidentiality, we refer to E.R.W. and her children by pseudonyms.
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¶2 It is undisputed that the dispositional orders have expired and that
our resolution of the plea withdrawal issue will have no practical effect on the
closed CHIPS cases. We hold that, accordingly, the appeals of April’s and Mark’s
cases are moot, as there are no lasting collateral consequences stemming from
their orders. See Marathon County v. D.K., 2020 WI 8, ¶¶19, 23-25, 390 Wis. 2d
50, 937 N.W.2d 901. We further hold that the appeal of Erika’s case is not moot:
because her dispositional order placed her outside the home, her CHIPS
adjudication may form the partial basis for an involuntary termination of parental
rights (TPR) action against Eileen. See id., ¶25. Thus, a real and lasting collateral
consequence exists with respect to that order.
¶3 On the merits of the appeal as to Erika, the facts in the CHIPS
petition show that, on a regular basis and over a number of years, Eileen neglected
to provide sufficient food for Erika. Thus, there is a factual basis for the CHIPS
allegation that Eileen neglected, refused, or was unable, for reasons other than
poverty, to provide necessities for Erika, so as to seriously endanger Erika’s
physical health. See WIS. STAT. § 48.13(10). Accordingly, we affirm.
BACKGROUND
¶4 In August 2018, the State filed CHIPS petitions pursuant to WIS.
STAT. 48.13(10), alleging that Eileen’s neglect, refusal, or inability to provide for
her three children posed a serious danger to their physical health. The main
allegation was that, on frequent occasions and for extended lengths of time, Eileen
left then-thirteen-year-old Erika in charge of eight-year-old Mark and six-year-old
April. During those times, Erika had access to a phone that made 911 calls, but
there was otherwise no phone or internet service. According to the petition, there
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was little food in the house, the house was dirty, and neighbors reported caring for
and feeding the children.
¶5 In December 2018, Eileen pled no contest in all three cases; in
exchange, the State dismissed criminal charges based on the same conduct alleged
in the CHIPS petitions. In January 2019, the circuit court entered dispositional
orders. April and Mark were placed in-home; Erika was placed in foster care, but
placement was later changed to in-home. As amended (in Erika’s case), the orders
expired in January 2020, Eileen having successfully completed the conditions of
continued placement.
¶6 In July 2020, Eileen brought a postdisposition motion, seeking plea
withdrawal on the grounds that there was an insufficient factual basis for her plea.
The circuit court denied the motion, and this appeal followed. We will discuss
additional facts below.
DISCUSSION
Mootness
¶7 As a threshold matter, the State argues that this appeal is moot
because the dispositional orders have expired. Mootness is a doctrine of judicial
restraint, under which we may decline to review an issue where our decision
would have no practical effect on a live controversy. D.K., 390 Wis. 2d 50, ¶19.
Our supreme court, in an analogous context, recently reiterated that an appeal is
not moot where collateral consequences stem from the expired order. See id.,
¶¶22-25 (firearms ban, resulting from expired WIS. STAT. ch. 51 commitment
order, constitutes a collateral consequence rendering appeal not moot). Moreover,
even where an issue is moot, we may elect to review it as falling under a
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recognized mootness exception; for example, where the issue “arises often and a
decision from this court is essential” or “is likely of repetition and evades review.”
D.K., 390 Wis. 2d 50, ¶19.
¶8 Eileen argues that the three individual appeals in this consolidated
appeal are not moot, but for different reasons. As to the appeal of Erika’s case,
Eileen points out that a CHIPS adjudication under WIS. STAT. § 48.13(10) may
form the partial basis for a subsequent TPR action. This is because, pursuant to
WIS. STAT. § 48.415(2)(am)1.:
Grounds for termination of parental rights shall be one of
the following:
….
That on 3 or more occasions the child has been
adjudicated to be in need of protection or services under
[§ 48.13(10)] and, in connection with each of those
adjudications, has been placed outside his or her home ….
We find Eileen’s reasoning persuasive. Although there is only an indirect
connection between a single CHIPS adjudication and TPR grounds, the former
may increase the likelihood of the latter. Accordingly, we find that the appeal as
to Erika is not moot.
¶9 Eileen acknowledges that Mark’s and April’s CHIPS adjudications
do not carry the same collateral consequence, as these younger children were not
placed outside the home. Nonetheless, Eileen argues broadly that their cases are
not moot because of the “lasting reputational damage” resulting from the CHIPS
orders. Eileen does not flesh out this argument in any depth, however, so as to
apply this general principle to her own situation. Specifically, Eileen does not
articulate why or how she might incur reputational damage, given that, as she
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concedes, CHIPS orders are confidential. Thus, whether this argument can be best
be characterized as lacking in merit or insufficiently developed, the result is the
same: Eileen cannot show that the appeals of Mark’s and April’s cases are not
moot. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (we may decline to address undeveloped arguments). Eileen, moreover,
concedes that these appeals do not implicate one of the established exceptions to
the mootness doctrine. See D.K., 390 Wis. 2d 50, ¶19. Accordingly, on mootness
grounds, we will not address Mark’s or April’s appeals, as a decision on the merits
would neither bear on their CHIPS status nor carry any lasting consequences for
them or Eileen.
¶10 Eileen argues that notwithstanding the above, we should review the
younger children’s appeals because their cases are intertwined with Erika’s. As a
practical matter, this is largely true, but that does not change the fact that these
cases are moot. Accordingly, the remainder of this decision will ignore any facts
solely pertaining to April’s or Mark’s CHIPS status, and we will focus only on
whether there was a sufficient factual basis for adjudging Erika CHIPS.
Plea Withdrawal
¶11 Eileen seeks review of the circuit court’s order on her
postdisposition motion, alleging that the lack of a factual basis for her CHIPS plea
constitutes a manifest injustice warranting plea withdrawal. We begin with some
background on plea withdrawal in the criminal context, including the requirement
that there be a factual basis for the plea. We also discuss whether and how these
criminal law principles apply to CHIPS cases. Next, we discuss the standard of
review governing this appeal, and we analyze the merits of Eileen’s motion.
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Plea Withdrawal in the Criminal and WIS. STAT. ch.48 Contexts
¶12 After sentencing, a criminal defendant is entitled to withdraw his or
her guilty or no-contest plea upon establishing, by clear and convincing evidence,
that there has been a “manifest injustice,” State v. Denk, 2008 WI 130, ¶31, 315
Wis. 2d 5, 758 N.W.2d 775—that is, “a serious flaw in the fundamental integrity
of the plea,” State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d
836 (citation omitted). One such “manifest injustice” is the lack of a factual basis
for the plea. White v. State, 85 Wis. 2d 485, 488, 271 N.W.2d 97 (1978).
¶13 A plea lacks a factual basis where the conduct admitted to does not
constitute the offense charged. Id. In White, for example, there was no factual
basis for the plea to theft of a chainsaw valued above $150 because there was no
evidence in the record establishing the saw’s value. Id. at 489-91. A factual basis
may also be lacking where the defendant admits to a set of facts constituting the
charge while continuing to maintain a complete defense to that charge. Thus, in
State v. Lackershire, 2007 WI 74, ¶¶29, 38, 301 Wis. 2d 418, 734 N.W.2d 23,
there was no factual basis for the charge of sexual assault of a child because the
defendant, although admitting to having sexual intercourse with a minor,
maintained that she was raped by the minor.
¶14 The factual basis requirement has both statutory and constitutional
dimensions. Under WIS. STAT. § 971.08(1)(b), before the court accepts a plea, it
must “[m]ake such inquiry as satisfies it that the defendant in fact committed the
crime charged.” See State v. Black, 2001 WI 31, ¶11, 242 Wis. 2d 126, 624
N.W.2d 363. An analogous statute applies to CHIPS actions (more on that
below). More fundamentally, this requirement helps ensure that the plea comports
with due process—that it is “knowing, intelligent, and voluntary,” State v. Brown,
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2006 WI 100, ¶¶19, 25, 293 Wis. 2d 594, 716 N.W.2d 906—by protecting a
defendant who might enter a plea without knowingly or intelligently appreciating
that the facts do not fit the crime, Lackershire, 301 Wis. 2d 418, ¶35.
¶15 A defendant seeking plea withdrawal after sentencing (be it on
“factual basis” or any other grounds) has two methodological or procedural paths
available. State v. Sulla, 2016 WI 46, ¶25, 369 Wis. 2d 225, 880 N.W.2d 659.
The first, a Bangert3 motion, alleges that the circuit court failed to fulfill its
statutory or judicially mandated plea colloquy duties. See State v Howell, 2007
WI 75, ¶¶26-27, 301 Wis. 2d 350, 734 N.W.2d 48. The second, a Nelson/Bentley4
motion, alleges some extrinsic defect, such as ineffective assistance of counsel.
Howell, 301 Wis. 2d 350, ¶74. A defendant may invoke both Bangert and
Nelson/Bentley with respect to the same underlying grounds for plea withdrawal,
but each motion carries with it a distinct set of procedures and standards. See
Howell, 301 Wis. 2d 350, ¶¶27-31, 73-79. We will discuss this point further
below as it relates to Eileen’s motion.
¶16 With these principles in mind, we turn to plea withdrawal in WIS.
STAT. ch. 48 cases. We begin with TPR cases, which most seriously implicate the
parent’s constitutional rights and are thus most closely analogous to criminal
cases. See Steven V. v. Kelly H., 2004 WI 47, ¶¶21-22, 271 Wis. 2d 1, 678
N.W.2d 856 (parenting is a fundamental liberty interest protected by the
Fourteenth Amendment; accordingly, TPR “adjudications are among the most
3
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
4
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), modified by State v. Bentley,
201 Wis. 2d 303, 548 N.W.2d 50 (1996).
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consequential of judicial acts, involving as they do ‘the awesome authority of the
State to destroy permanently all legal recognition of the parental relationship’”
(citation omitted)). In the TPR context, our supreme court has noted that WIS.
STAT. § 48.422, a statute ensuring similar procedural safeguards as WIS. STAT.
§ 971.08,
address[es] the concerns that ‘the power of the state to
terminate the parental relationship is an awesome one,
which can only be exercised under proved facts and
procedures which assure that the power is justly exercised
… [and] that the parental rights will not be terminated
precipitously, arbitrarily, or capriciously’ without regard to
the parents’ rights.
Burnett Cnty. DSS v. Kimberly M.W., 181 Wis. 2d 887, 892, 512 N.W.2d 227(Ct. App. 1994) (second alteration in original; citation omitted), overruled on
other grounds by Steven V., 271 Wis. 2d 1, ¶52 n.9. Accordingly, the court held,
the Bangert framework for evaluating claimed defects within the plea colloquy
applies to TPR cases. Kimberly M.W., 181 Wis. 2d at 892. Subsequent TPR
cases have reiterated this point. See, e.g., Waukesha County v. Steven H., 2000
WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607; Kenosha Cnty. DHS v. Jodie W.,
2006 WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845.
¶17 From our review, we could not identify any binding case law
applying the Nelson/Bentley framework to TPR cases. We see no conceptual
reason why it would not apply, but we also need not decide the point. This is
because we conclude infra note 7 that Eileen’s motion can best be characterized as
a Bangert motion but that Eileen has not met her burden under either standard
(this makes sense since, as we also explain below, a defendant must meet a higher
pleading standard to succeed on a Nelson/Bentley motion). See Howell, 301
Wis. 2d 350, ¶¶28, 75. For our purposes, then, we assume without deciding that a
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motion for plea withdrawal in a TPR case is subject to all the same principles,
methodologies, and standards applicable to criminal cases.
¶18 Eileen’s case, of course, is neither a criminal case nor a TPR case.
But although the consequences of a CHIPS disposition are less severe, both
CHIPS and TPR cases affect the parent-child relationship and implicate the
constitutional right to parent. See C.N. v. Waukesha Cnty. Cmty. Hum. Servs.
Dep’t, 143 Wis. 2d 603, 611, 422 N.W.2d 450 (Ct. App. 1988), overruled on other
grounds by A.S. v. State, 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52 (1992); see
also R.D.K. v. Sheboygan Cnty. Soc. Servs. Dep’t, 105 Wis. 2d 91, 105-06, 312
N.W.2d 840 (Ct. App. 1981). Moreover, the parties in this case take for granted
that the criminal law/TPR framework applies, at least insofar as Eileen’s appeal is
concerned. Therefore, we will assume that the criminal law plea withdrawal
framework applies to motions to withdraw no-contest pleas in CHIPS cases. We
turn now to the application of those standards to the facts of this case.
Plea Withdrawal Framework Applied to Eileen’s Appeal
Standard of Review
¶19 We begin with our standard of review for evaluating the circuit
court’s conclusion that there was a factual basis for Eileen’s no-contest plea. We
note that standards of review on postsentencing motions for plea withdrawal are,
at times, superficially contradictory. Taking the ten thousand-foot view, however,
we conclude that our review of the issues in this appeal is entirely de novo, based
on the following principles.
¶20 First, although plea withdrawal is generally considered within the
circuit court’s discretion, State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d
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707 (1997), a defendant is entitled to plea withdrawal upon establishing a manifest
injustice, Denk, 315 Wis. 2d 5, ¶31. Put another way, where the defendant shows
a manifest injustice, the circuit court’s denial of the motion to withdraw
constitutes an erroneous exercise of discretion. State v. Rock, 92 Wis. 2d 554,
559, 285 N.W.2d 739 (1979).
¶21 Second, there was no testimony presented below; instead, the parties
stipulated to relying on the CHIPS petition as the factual basis for the plea. Where
the factual basis for a plea derives from documents in the record, we are in the
same position as the circuit court to draw factual conclusions from those
documents. State v. Peralta, 2011 WI App 81, ¶16, 334 Wis. 2d 159, 800 N.W.2d
512. Accordingly, our review of the court’s factual findings is de novo.5 See id.¶22 Third, we recognize that our courts have occasionally summarized
our role on review by broadly referencing (while not necessarily applying) the
“clearly erroneous” standard applicable to the circuit court’s factual findings. See,
e.g., State v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996) (“The
determination of the existence of a sufficient factual basis lies within the discretion
of the trial court and will not be overturned unless it is clearly erroneous.”);
Broadie v. State, 68 Wis. 2d 420, 423-25, 228 N.W.2d 687 (1975) (“Where the
trial court has concluded that the evidence did provide a sufficient factual basis to
support the plea, this court will not upset these factual findings unless they are
5
A nuance to this case, which we discuss infra note 7 concerns whether we may rely on
other parts of the record besides the CHIPS petition in determining whether there was a factual
basis for the plea. As the circuit court never heard testimony at any point, nor had other cause to
make credibility determinations or resolve factual disputes, the documents control, and our
review is de novo regardless.
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contrary to the great weight and clear preponderance of the evidence.”). Such
reference obscures the larger point: the proceedings below may have involved fact
finding, but the application of a set of undisputed (or admitted-to) facts to a legal
standard is always a legal determination.6 State v. Trochinski, 2002 WI 56, ¶16,
253 Wis. 2d 38, 644 N.W.2d 891. And that is the scenario before us, as will be
evident from our analysis below. Thus, we review de novo whether the facts
Eileen admitted to satisfy the elements of WIS. STAT. § 48.13(10), the CHIPS
allegation at issue. See Peralta, 334 Wis. 2d 159, ¶16; see also Lackershire, 301
Wis. 2d 418, ¶48 (“Factual basis cases typically involve the question of whether
undisputed facts actually constitute the crime charged.”).
Application to Eileen’s Appeal
6
Courts’ invocation of the “clearly erroneous” standard might also be informed by the
language of WIS. STAT. 971.08(1)(b), which requires the circuit court to “[m]ake such inquiry as
satisfies it that the defendant in fact committed the crime charged.” (Emphasis added.) See State
v. Black, 2001 WI 31, ¶¶11-12, 242 Wis. 2d 126, 624 N.W.2d 363. Such language, however,
cannot reasonably be construed as requiring (and, simply put, cannot require) deference to the
circuit court’s legal conclusions. At least one decision raises this point. See State v. Mendez, 157
Wis. 2d 289, 295 n.2, 459 N.W.2d 578 (Ct. App. 1990) (“We seriously question whether
[precedential case law] correctly holds that appellate review of a trial court’s determination that a
factual basis for a guilty plea exists presents a question of fact. While in some cases the trial
court may need to engage in historical fact finding in order to determine whether a factual basis
for a plea exists, the ultimate determination is that a given set of facts fulfills a particular legal
standard. This presents a question of law.” (citation omitted)). We note that the de novo
component is clearer when the inquiry is viewed through the lens of whether the plea was
knowing, intelligent, and voluntary. See State v. Lackershire, 2007 WI 74, ¶35, 301 Wis. 2d 418,
734 N.W.2d 23 (“A defendant’s failure to realize that the conduct to which she pleads guilty does
not fall within the offense charged is incompatible with that plea being ‘knowing’ and
‘intelligent.’”); State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906 (“Whether
a plea is knowing, intelligent, and voluntary is a question of constitutional fact. We accept the
circuit court’s findings of historical and evidentiary facts unless they are clearly erroneous but we
determine independently whether those facts demonstrate that the defendant’s plea was knowing,
intelligent, and voluntary.” (citation omitted)).
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¶23 We turn now to whether the facts Eileen admitted to fulfill the
elements of WIS. STAT. § 48.13(10), but we must first clear up two remaining
points. The parties disagree about which documents we must consider when
determining whether there was a factual basis for this CHIPS allegation. The State
claims that we should consider the entire record, while Eileen would confine our
analysis to the CHIPS petition itself.7 As we discuss supra note 7, to settle this
point definitively, we would need to make certain determinations relating to the
procedural posture of this case. We need not settle this point, however, because
7
The State correctly recites the general rule that, “when applying the manifest injustice
test, ‘a reviewing court may look beyond the plea hearing transcript’ to the totality of the
circumstances,” including “the plea hearing record, the sentencing hearing record [and] other
portions of the record.” State v. Cain, 2012 WI 68, ¶¶29-31, 342 Wis. 2d 1, 816 N.W.2d 177(citations omitted); see also White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97 (1978) (in
evaluating whether the plea lacks a factual basis, “this court may consider the whole record since
the issue is no longer whether the guilty plea should have been accepted, but rather whether there
was an abuse of discretion in the trial court’s denial of the motion to withdraw”). Here, however,
the circuit court denied Eileen’s motion without an evidentiary hearing; as a technical point,
therefore, the remedy Eileen seeks is an evidentiary hearing on what is either a Bangert or a
Nelson/Bentley motion. And in that respect, our analysis differs depending on which motion
Eileen brought below. A Bangert motion alleges some deficiency by the circuit court;
accordingly, we confine our analysis to the plea hearing transcript and any stipulated-to
documents forming the basis for the plea. See Brown, 293 Wis. 2d 594, ¶¶35-36, 39-42; State v
Howell, 2007 WI 75, ¶¶61-66, 301 Wis. 2d 350, 734 N.W.2d 48. In contrast, a Nelson/Bentley
motion points to some extrinsic defect; we therefore consider that motion, and any new facts
alleged therein, with reference to the entire record. Howell, 301 Wis. 2d 350, ¶¶74-78. Eileen’s
motion can best be characterized as a Bangert motion, in that she alleges that the circuit court
failed to “[m]ake such inquiries as satisfactorily establishes that there is a factual basis for the
plea.” See WIS. STAT. § 48.30(8)(c). We note that the pleading standard is lower on Bangert
motions because the defendant need only make a prima facie showing of a defect within the plea
colloquy. See Howell, 301 Wis. 2d 350, ¶¶26-29, 73-77. Thus, we need not definitively decide
which motion Eileen brought; by treating this as a Bangert motion, we assign a relatively lower
pleading burden to Eileen. Because we ultimately affirm the circuit court’s order, we also need
not consider whether an evidentiary hearing on remand would be helpful or necessary on this
record. See Lackershire, 301 Wis. 2d 418, ¶48 (“In some ways … applying the Bangert
procedure for failure to satisfy the factual basis requirement is an awkward fit. Factual basis
cases typically involve the question of whether the undisputed facts actually constitute the crime
charged. Where undisputed facts cannot constitute the crime charged as a matter of law, the
defendant is allowed to withdraw her plea to prevent a manifest injustice.”).
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we cannot identify, and the State has not pointed to, any relevant facts outside the
petition bearing on our analysis.8 Accordingly, we analyze only the CHIPS
petition to determine whether it establishes a factual basis for Eileen’s plea.
¶24 Second, we must address an argument central to Eileen’s appeal,
relating to which facts (if any) within the CHIPS petition we should consider. As
Eileen would have it, the petition is “so inconsistent” that it “fail[s] to provide a
narrative sufficient to establish the requirements of WIS. STAT. § 48.13(10).” In
Eileen’s view, the petition contains so many discrepancies and contradictions that,
essentially, it is unclear what is being admitted to. In the face of these
discrepancies, Eileen asserts, the circuit court was required to “ma[k]e [an] effort
to parse which of the [facts] she admitted to” so as to satisfy its statutory duties.
See WIS. STAT. § 48.30(8)(c) (“Before accepting an admission or plea of no
contest of the alleged facts in a [CHIPS] petition, the court shall … [m]ake such
inquiries as satisfactorily establishes that there is a factual basis for the plea or
admission ….”). Put another way, Eileen appears to argue that even though she
stipulated to using the petition as the factual basis, either this CHIPS petition was
incapable of providing a sufficient factual basis at all or § 48.30(8)(c) nonetheless
8
We use the qualifier “relevant” because the State would have us consider, in addition to
the CHIPS petition, a portion of the dispositional report that discusses Eileen’s “refusing to
provide urine for drug analysis,” “attempt[ing] to tamper with her urine sample,” and not
“return[ing] the next day to submit [another] sample.” We are prepared to draw the most
reasonable inculpatory inference from this report: that Eileen evaded getting a drug test because
she had taken illegal drugs. See Black, 242 Wis. 2d 126, ¶16 (“[A] factual basis for a plea exists
if an inculpatory inference can be drawn from the complaint or facts admitted to by the defendant
even though it may conflict with an exculpatory inference elsewhere in the record and the
defendant later maintains that the exculpatory inference is the correct one.”). Without additional
context, however, we are unprepared to draw any conclusions as to how this drug use relates to
Eileen’s neglecting, refusing, or being unable to provide necessities for Erika so as to endanger
Erika’s physical health. See WIS. STAT. § 48.13(10).
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required something more on the circuit court’s part before the petition could so
provide.
¶25 Eileen is correct in that the CHIPS petition contains contradictions.
One might expect as much, given that the petition recounts conversations with
three minor children and Eileen. The two younger children were occasionally
unable to describe their living situation accurately, no doubt because of their age
(for example, six-year-old April stated that Eileen goes grocery shopping “once a
year”). Eileen, for her part, certainly had an incentive to minimize the extent of
the problems in the house. Intake workers also recorded facts in the first portion
of the petition that they later clarified upon further conversations. The result is a
CHIPS petition that indeed contains contradictory facts or allegations. As one
example, when a juvenile crisis worker first visited the house, “[t]he children
reported the last time they ate was the previous day,” but Erika later clarified that
all three children ate that day. As another example, Eileen reported that Erika
“only has to watch her siblings 1 or 2 days out of the week,” but Erika stated that
“she babysits her siblings ‘almost daily.’”
¶26 Eileen is incorrect, however, in asserting that there was no factual
basis for her plea solely because of these contradictions. Such argument, in fact,
fundamentally misconstrues the import and effect of the guilty or no-contest plea.
“[I]t is a well-established rule ‘that what is admitted by a guilty or no contest plea
is all the material facts alleged in the charging document.’” State v. Liebnitz, 231
Wis. 2d 272, 286-88, 603 N.W.2d 208 (1999) (citation omitted). It follows that
“the essence of what a defendant waives when he or she enters a guilty or no
contest plea” is a jury resolution, in the defendant’s favor, of factual discrepancies
within that document (or the record generally). See Black, 242 Wis. 2d 126, ¶16.
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Thus, “a factual basis for a plea exists if an inculpatory inference can be drawn
from the complaint or facts admitted to by the defendant even though it may
conflict with an exculpatory inference elsewhere in the record and the defendant
later maintains that the exculpatory inference is the correct one.” 9 Id.Accordingly, in determining whether a factual basis exists for a plea, we not only
discount the existence of internal inconsistencies but we draw all reasonable
inferences in favor of the State.
¶27 Therefore, the question before us narrows to whether the CHIPS
petition, reasonably construed at its most inculpatory, see id., alleges facts
sufficient to meet the elements of WIS. STAT. § 48.13(10). Subsection (10)
establishes CHIPS jurisdiction where the parent “neglects, refuses or is unable for
reasons other than poverty to provide necessary care, food, clothing, medical or
dental care[,] or shelter so as to seriously endanger the physical health of the
child.” Thus, there are two elements to this allegation. First, that the parent
neglected, refused, or was unable to provide necessities for the child (poverty
status constitutes an affirmative defense, but Eileen has not alleged its application
9
Eileen further argues that the circuit court was required to determine which specific
facts she admitted to—even in the face of her stipulating to relying on the CHIPS petition as the
factual basis—because she “admitted to some, but not all, of the allegations in the petition.” If
Eileen had, in fact, attempted to plead no-contest under some sort of reservation, we might need
to determine whether the circuit court fulfilled its statutory duties both to “[m]ake such inquiries
as satisfactorily establishes that there is a factual basis for the plea” and to “determine that the
plea … is made voluntarily with understanding of the nature of the acts alleged in the petition and
the potential dispositions.” See WIS. STAT. § 48.30(8)(a), (c). But there is no indication that
Eileen misunderstood the plea process or that some related irregularity occurred below. At one
point, the court took a recess so that Eileen’s counsel could clarify the meaning of the no-contest
plea. When the hearing resumed, Eileen agreed on the record that although she “may not agree
with everything that’s in the petition,” she was “not contesting the State’s ability to prove the
facts in the petition.” The circuit court was not foreclosed from accepting the plea merely
because Eileen disagreed with certain facts in the petition, so long as she agreed that the State
could prove those facts supporting the CHIPS allegation. No error occurred below in this regard.
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here). WIS JI—CHILDREN 250. Second, that the neglect, refusal or inability to so
provide seriously endangered the child’s physical health. Id. As one might
expect, this second element does not require that the child already have been
harmed; rather,
[t]he physical health of the child is “seriously endangered”
if the failure to provide creates a significant risk that the
child will be seriously harmed or injured…. [A]ctual harm
or injury need not have occurred. In determining whether
the physical health of the child was seriously endangered,
[the jury] may consider the natural and probable
consequences of the failure to provide. [The jury] may also
consider the nature of any possible harm to the child and
the level of risk that a particular harm will occur.
Id.; see also Z.E. v. State, 163 Wis. 2d 270, 274-76, 471 N.W.2d 519 (Ct. App.
1991) (approving of prior jury instruction on § 48.13(10) worded to similar effect).
¶28 Construing the facts and reasonable inferences against Eileen, the
CHIPS petition alleges the following. First, Eileen’s house was in “poor
condition” and was described as cluttered, messy, and dirty. There were no bugs
or mold in the house, however, or hazardous conditions described.
¶29 Second, Eileen and her husband worked seventy-five hours per
week, at least in some weeks, leaving Erika to babysit the younger children. Erika
babysat most days but never, it appears, overnight or for a longer than twenty-four
hours. Erika felt upset or overwhelmed by the amount of babysitting she had to
do, which was in addition to cooking for the younger children and doing most of
the cleaning in the house. Erika had a cell phone that could reach 911 but that
could not otherwise place calls, and there was no landline or internet service in the
house. Therefore, Erika could not easily contact an adult while she was
babysitting (at least, not without leaving her house).
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¶30 Third, this matter began when neighbors reported (among other
things) that “they help take care of the children and get them food when they are
hungry.” The Kenosha County worker that first visited the family observed
minimal food in the house. We do note, however, that in an unscheduled visit
conducted the next day, another county worker observed a variety of food. The
younger children could not always accurately describe when or how often they ate,
and Erika responded, “No” when asked “if she feels like she and her siblings are
going hungry.” After the children were temporarily removed from the home,
however,
Kenosha Sheriff’s Department deputies reported that they
had been getting statements all day from the neighbors,
who reported they often buy clothing and food for the
children. Neighbors also reported that this has been going
on for 2-3 years. The kids have been going to neighbors’
homes asking for food and for money to get food.
¶31 Given that we are evaluating the CHIPS petition only as to Erika, we
find that these first two allegations (concerning the state of the house and Erika’s
role as caregiver) do not support a CHIPS finding. Assuming without deciding
that these allegations could demonstrate lack of necessary care or shelter, the facts
do not sustain the conclusion that such neglect seriously endangered Erika’s
physical health. There is no evidence of either actual or “significant risk” of harm.
WIS JI—CHILDREN 250. And although we might conceivably conclude that one
“natural and probable consequence[]” of Erika’s caregiver status is harm to the
younger children, it would be speculative to conclude as much with respect to
Erika. Id. Erika may have been placed in a role that was inconducive to the
mental and emotional health of a thirteen-year-old girl. On this record, however,
we cannot conclude that her physical health was threatened.
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¶32 The third allegation, however, concerns a long-term pattern of
insufficient food (and to a lesser extent, clothing) in the household. The
reasonable inference from the neighbors’ reports and statements10 is that Erika
either regularly went hungry or would have gone hungry but for the neighbors’
intervention, performed as a necessity and at the childrens’ request. We recognize
that Erika herself told a county worker that she did not “feel like” she was “going
hungry.” At the post-plea stage, however, we consider the broader, complete
picture, discounting this exculpatory fact in favor of others—in particular, the
neighbors’ reports—that are inculpatory. We note too that the neighbors’
intervention does not foreclose a CHIPS finding. That is, the fact that the
neighbors regularly fed the children, and did so over several years, does not
alleviate the “significant risk” that Eileen’s neglect itself created. See WIS JI—
CHILDREN 250 (emphasis added); see also Z.E., 163 Wis. 2d at 274-75 (approving
of jury instruction stating that the child was “seriously endanger[ed]” where “such
harm could happen except for the intervention of others” (citation omitted)). It is
also reasonable to conclude that a “natural and probable consequence” of
insufficient food over several years’ period is serious danger to the physical health
of a growing girl. See WIS JI—CHILDREN 250. Therefore, we find that the CHIPS
petition established a sufficient factual basis for adjudging Erika CHIPS.
10
Eileen implies that we should discount references to the neighbors’ reports because the
CHIPS petition does not itself establish that those reports are accurate, but only that they were
made. Essentially, we construe Eileen to argue that we may rely on some but not other hearsay
(or hearsay-within-hearsay) in the petition—a position that has no legal basis. At the plea hearing
itself, the circuit court’s factual basis determination is not limited to consideration only of
evidence that would be admissible at trial. Edwards v. State, 51 Wis. 2d 231, 236-37, 186
N.W.2d 193 (1971). At the post-plea stage, we determine whether those facts, regardless of how
they were adduced, constitute the offense charged. Id. at 236. By pleading no contest, Eileen has
waived any hearsay or Confrontation Clause challenge to the facts and allegations within the
CHIPS petition.
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¶33 We recognize that Eileen now disputes the allegations in the CHIPS
petition, and this opinion is not intended to suggest that those allegations are
accurate. Rather, the only issue that we can, and do, consider is whether a factual
basis existed in the petition from which the circuit court could accept her no
contest plea. Because the petition alleged facts from which a reasonable fact-
finder could find Erika CHIPS, we conclude that it met this standard.
¶34 A guilty or no-contest plea does not lack a factual basis merely
because the stipulated-to charging document contains contradictory or inconsistent
witness statements. Rather, in reviewing a plea withdrawal motion, we must
examine whether the most inculpatory facts, and any reasonable inferences that
can be drawn from them, meet the elements of the charge. Here, the CHIPS
petition contains sufficient facts establishing that Eileen’s neglect, refusal, or
inability, for reasons other than poverty, to provide food for Erika posed a serious
danger to Erika’s physical health. See WIS. STAT. § 48.13(10). Consequently, the
circuit court did not err in denying Eileen’s motion to withdraw her plea on factual
basis grounds.11
By the Court.—Orders affirmed.
11
Because we affirm on the grounds that there was a factual basis for Eileen’s plea, we
need not decide the State’s other arguments, except to address one point. See Sweet v. Berge, 113
Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (not addressing additional bases to sustain
where one basis is dispositive). The State appears to argue that Eileen’s “conced[ing] in her
colloquy that there was enough in the petition for the court to find that the children were
[CHIPS]” is in of itself proof of a sufficient factual basis for the plea. We have previously
rejected this argument (couched in terms of judicial estoppel) because it “creates a scenario in
which a defendant can plead guilty to an offense which was not committed.” See Mendez, 157
Wis. 2d at 294. To reiterate a point made elsewhere in this decision: the existence of a factual
basis for the plea is a legal conclusion. Thus, a defendant may admit to the underlying facts and
even agree that a factual basis exists, but the defendant cannot stipulate to a legal conclusion so as
to foreclose any appeal on “factual basis” grounds.
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This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
21