State v. S. S.

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 7, 2023
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.
2022AP1179 Cir. Ct. Nos. 2021TP133
2021TP134
2022AP1180
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO H.S., A PERSON UNDER THE
AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S.S.,
RESPONDENT-APPELLANT.
IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.S.-A., A PERSON UNDER
THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
S.S.,
Nos. 2022AP1179
2022AP1180
RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM and JOSEPH R. WALL, Judges. Affirmed.
¶1 BRASH, C.J.1 S.S. appeals orders terminating her parental rights to
her children, Harold and Sean,2 and orders denying her postdisposition motion.
S.S. argues that her no contest pleas during the grounds phase for the termination
of parental rights (TPR) petitions was not knowing, intelligent, and voluntary
because her plea colloquy was defective. Specifically, she argues that during the
plea colloquy, the circuit court3 (1) failed to accurately advise her of the potential
dispositional outcomes; and (2) set forth the wrong statutory standard for the
dispositional phase of the TPR proceedings. We conclude that S.S.’s claim fails as
to the first alleged plea colloquy defect. We further conclude that S.S.’s
postdisposition motion set forth a prima facie case for plea withdrawal as to the
second alleged plea colloquy defect. However, the State proved by clear and
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
Pursuant to WIS. STAT. RULE 809.107(6)(e), this court is required to issue a decision
within thirty days after the filing of the reply brief. We may extend the deadline pursuant to WIS.
STAT. RULE 809.82(2)(a) upon our own motion or for good cause. See Rhonda R.D. v. Franklin
R.D., 191 Wis. 2d 680, 694, 530 N.W.2d 34 (Ct. App. 1995). On our own motion, we will extend
the decision deadline through the date of this decision.
2
For ease of reference and to protect the confidentiality of these proceedings, we use
pseudonyms to refer to the children.
3
The Honorable Ellen R. Brostrom presided over both TPR proceedings and entered the
orders terminating S.S.’s parental rights; we refer to Judge Brostrom as the circuit court. The
Honorable Joseph R. Wall presided over the hearings on the postdisposition motions and issued
the decisions and orders denying the motion; we refer to Judge Wall as the postdisposition court.
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convincing evidence that S.S. knowingly and intelligently waived the right to
contest the allegations in the petitions. Accordingly, we affirm the orders
terminating S.S.’s parental rights, and the orders denying her postdisposition
motion.
BACKGROUND
¶2 S.S. is the birth mother of Harold and Sean, who were born in
October 2009 and September 2014, respectively. Prior to the TPR proceedings in
this case, the children were adjudged to be in need of protection or services
(CHIPS) and were removed from S.S.’s custody, Harold in November 2017 and
Sean in January 2019. The CHIPS orders cited concerns regarding abuse, neglect,
and risk of neglect.
¶3 In June 2021, the State filed petitions4 to terminate S.S.’s parental
rights to her children. The petitions alleged continuing CHIPS and failure to
assume parental responsibility as grounds for the TPRs, pursuant to WIS. STAT.
§§ 48.415(2) and (6).
Attempted Virtual Plea Colloquy
¶4 The circuit court held a “check in” hearing on October 18, 2021, and
was informed that the case was “still in a trial posture.” Later that day, however,
the parties reconvened, and counsel informed the court that S.S. desired to enter no
4
The TPR petitions also set forth grounds to terminate the parental rights of Harold’s
biological father and Sean’s adjudicated father. The circuit court entered orders terminating the
fathers’ parental rights; those orders are not on appeal here, and this decision focuses on the facts
and the proceedings as they relate only to S.S.
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contest pleas with respect to the ground of failure to assume parental
responsibility.
¶5 In response, the circuit court began to conduct a plea colloquy.
After the court ascertained various facts relating to S.S. and her background, the
following exchange occurred:
THE COURT: Right. So … remember at the
beginning of the case we talked about how it has two
halves. In the first half, the State has to prove there’s legal
reason or grounds to terminate your parental rights. In the
second half, if grounds are found, I would have to decide if
it’s in the children’s best interest to do so. Do you
understand that?
[S.S.]: In the first half the State would have to
prove it. In the second half, it would be upon you and part
of your decision, right?
THE COURT: Yes. But it’s still the State’s burden
to prove it’s in the children’s best interest. So I just want to
talk about the consequence from a legal processing
standpoint if I accept this no contest plea. What it means is
you won’t have the jury trial, but you will have the
disposition contest. Do you understand that?
[S.S.]: Um, a little bit.
¶6 At that point, the circuit court acknowledged that it was “getting
late,” and asked counsel if the parties could reconvene at a later date in order for
counsel to better prepare S.S. for the plea colloquy. The parties agreed, and the
matter was rescheduled.
In-Person Plea Colloquy
¶7 The parties returned for an in-person plea hearing on October 21,
2021. The circuit court informed S.S. that she had an absolute right to a trial
regarding grounds, and that by entering no contest pleas to grounds, S.S. was only
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giving up her “fight” against whether the State could prove grounds by clear,
convincing, and satisfactory evidence. The court also reiterated its previous
statements that during the dispositional phase of a TPR, the State carried a burden.
This time, however, the court informed S.S. that the State’s burden would be by a
“reasonable certainty.” Notably, on at least five occasions, the court mentioned
the best interests of the child standard.5
¶8 Additionally, the circuit court informed S.S. about the two potential
outcomes at the dispositional hearing assuming grounds were met—termination of
parental rights, or dismissal of the TPR petitions. The court went on to note
several alternative outcomes if the court ultimately decided to dismiss the TPR
petitions, which included: 1) S.S.’s children could be immediately returned to her
care without any involvement from child welfare authorities; 2) the court could
leave the children in foster care or with relatives and “ask that the CHIPS case be
reinvigorated;” or 3) the court could order a “transfer of guardianship.” S.S.
confirmed to the court that this made sense and that she understood the
dispositional alternatives listed by the court.
¶9 The circuit court confirmed with both S.S. and her attorney that her
no contest pleas were knowing, intelligent, and voluntary, and the court ultimately
accepted S.S.’s no contest pleas.
5
In Wisconsin, TPR proceedings follow a bifurcated procedure. The first stage is the
grounds phase, consisting of a fact-finding hearing in which the fact finder determines whether
there are grounds to find the parent unfit. See WIS. STAT. § 48.415. During the grounds phase,
the fact finder “does not consider the best interests of the child standard.” Waukesha Cnty. DSS
v. C.E.W., 124 Wis. 2d 47, 61, 368 N.W.2d 47 (1985). If the parent is found to be unfit during
the grounds phase, the case proceeds to the dispositional stage, in which the court considers
whether it is in the best interests of the child or children to terminate the parent’s rights. See WIS.
STAT. § 48.426(2); see also C.E.W., 124 Wis. 2d at 60-61.
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¶10 The case then proceeded to the dispositional phase of the TPR
proceedings. The circuit court took judicial notice of the underlying CHIPS
documentation for “prove up,” and found that grounds had been met by the State.
After hearing testimony from the children’s foster parent, the case manager, and
S.S, the court ultimately found that it was in the children’s best interests to have
S.S.’s parental rights terminated, and TPR orders were filed in April of 2022.
Motion for Plea Withdrawal and Hearing on Motion
¶11 In August 2022, S.S. filed a motion for postdisposition relief
alleging that during the plea colloquy, the circuit court did not inform her of the
correct statutory standard that it would apply at the dispositional hearing, and that
she was given an “inaccurate explanation” of potential dispositions.6 S.S. argued
that these defects were sufficient to show a prima facie case for plea withdrawal.
S.S. further argued that the State could not meet its burden by clear and
convincing evidence that her no contest pleas was nonetheless knowing,
intelligent, and voluntary.
¶12 The postdisposition court held a hearing on the motion and reviewed
the pertinent portions of the plea hearing transcript, and heard oral argument from
the parties. Upon reviewing the relevant information, the postdisposition court
found that S.S. failed to establish a prima facie case because the court “adequately
6
To the extent S.S. raised an ineffective assistance of counsel claim before the
postdisposition court, or that her no contest pleas were involuntary for reasons outside the plea
colloquy, she appears to have abandoned any such arguments on appeal because she did not brief
those issues. We therefore deem any other argument raised before the postdisposition court, but
not presented on appeal, abandoned. See, e.g., A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 491-92, 588 N.W.2d 285 (Ct. App. 1998) (issues raised before the trial court but not
raised on appeal are deemed abandoned).
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explained all of the alternatives….”7 With regard to S.S.’s argument that the
circuit court misadvised S.S. about the statutory standard used during the
dispositional hearing, the postdisposition court stated: “there is no burden of proof
at [the] dispositional hearing as to the best interest.… [B]est interest is best
interest.” However, the postdisposition court also found that the circuit court
correctly mentioned the best interests on several occasions during the plea
colloquy. Thus, consistent with the reasoning set forth in State v. T.A.D.S.,
No. 2018AP2173, unpublished slip op. (WI App June 18, 2019),8 the
postdisposition court found that the “[c]ourt’s comments, although incorrect,
[were] irrelevant in light of its emphasis … on just the best interest standing
alone ….” Accordingly, the court entered orders for each child denying S.S.’s
postdisposition motion for plea withdrawal. S.S. now appeals.
DISCUSSION
¶13 On appeal, S.S. renews her arguments that the circuit court, during
its plea colloquy, improperly informed her of the potential dispositional outcomes,
and that the court informed her of the wrong statutory standard used at the
dispositional phase of a TPR. We address each of her arguments in turn.
7
Despite its finding, the postdisposition court conducted an evidentiary hearing in which
S.S. and S.S.’s former attorney were allowed to testify. After hearing closing arguments,
considering the testimony, and reviewing the relevant transcripts, the postdisposition court
determined that the State had met its burden to prove that S.S.’s no contest plea was made
knowingly, voluntarily, and intelligently.
8
See WIS. STAT. RULE 809.23(3)(b) (authorizing citation of certain unpublished
opinions for their persuasive value). We discuss this case in greater detail below.
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I. Legal Standards for TPR Pleas and Plea Withdrawals
¶14 A no contest plea in a TPR case must be entered knowingly,
voluntarily, and intelligently. Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶24,
293 Wis. 2d 530, 716 N.W.2d 845. Under Wisconsin law, before accepting a
parent’s no contest plea in the grounds stage of TPR proceedings, the circuit court
must engage the parent in a personal colloquy to “determine that the admission is
made voluntarily with understanding of the nature of the acts alleged in the
petition and the potential dispositions.” WIS. STAT. § 48.422(7)(a); Oneida Cnty.
DSS v. Therese S., 2008 WI App 159, ¶5, 314 Wis. 2d 493, 762 N.W.2d 122.
Additionally, “the parent must be informed of the statutory standard the court will
apply at the second stage. That is, the court must inform the parent that ‘[t]he best
interests of the child shall be the prevailing factor considered by the court in
determining the disposition....” Therese S., 314 Wis. 2d 493, ¶16 (citation
omitted; alterations in Therese S.). However, the circuit court need not inform a
parent of every detail implicated by the no contest plea, because such a
requirement would be unduly burdensome. See id., ¶17.
¶15 “When a parent alleges a plea was not knowingly and intelligently
made, the Bangert analysis applies.”9 Therese S., 314 Wis. 2d 493, ¶6. First, “the
parent must make a prima facie showing that the circuit court violated its
mandatory duties and must allege the parent did not know or understand the
information that should have been provided at the hearing.” Id. If the parent
makes a prima facie showing, “the burden then shifts to the [State] to demonstrate
9
See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
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by clear and convincing evidence that the parent knowingly and intelligently
waived the right to contest the allegations in the petition.” Id.¶16 Whether a parent “has presented a prima facie case by pointing to
deficiencies in the plea colloquy and sufficiently alleging [he or] she did not know
or understand information that should have been provided in the colloquy is a
question of law we review independently.” Id., ¶7. Whether the State established
that a parent knowingly, voluntarily, and intelligently waived the right to contest
that grounds existed to terminate his or her parental rights raises a question of
constitutional fact. See State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12(1986). We review constitutional questions independent of the circuit court. Id.However, “[w]e will uphold the circuit court’s findings of evidentiary or historical
facts unless the findings are ‘contrary to the great weight and clear preponderance
of the evidence.’” Jodie W., 293 Wis. 2d 530, ¶28 (citations omitted).
II. Circuit Court’s Statements Regarding Potential Dispositional Outcomes
¶17 S.S. first takes issue with the dispositional outcomes the circuit court
explained to S.S. if it ultimately did not terminate S.S.’s parental rights. The court
explained as follows:
THE COURT: [I]f the [c]ourt did not ultimately terminate
your parental rights, then the petition would be dismissed,
and a different alternative could be pursued. Do you
understand that?
[S.S]: Yes.
THE COURT: So among the alternatives would be
an immediate return to your care without any involvement
from child welfare authorities. And if [the court] thought
that was safe and appropriate, [the court] could do that, or
[the court] could leave the children in foster care, or with
relatives and ask that the CHIPS case be reinvigorated. Or
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we could do a transfer of guardianship. There are a number
of alternatives that could happen at that point and time.
Does that make sense?
[S.S.]: Yes, ma’am.
THE COURT: So again just to review in that
second half, if the [c]ourt did not find it was in the
children’s best interest to terminate your rights, the
petitions would be dismissed, and then a number of
different things could happen. But your unfitness finding
would be vacated, and your parental rights would not be
terminated. Does that make sense?
[S.S.]: Yes, ma’am.
THE COURT: The only issue in that second half is
is it in the best interest of your children to have your rights
terminated and be adopted, or should the petition be
dismissed in pursuit of some other alternative.
¶18 In support of her argument that the circuit court improperly informed
her of the potential dispositional outcomes, S.S. relies on Therese S., 314 Wis. 2d
493, ¶16. In Therese S., we interpreted the requirement of WIS. STAT.
§ 48.422(7)(a) that the court must engage the parent in a personal colloquy to
“determine that the admission is made voluntarily with understanding of ... the
potential dispositions.” See id., ¶5. We concluded that “at the very least” circuit
courts must inform the parent that at the dispositional phase of a TPR, the court
will hear evidence related to the disposition and will either terminate the parent’s
rights or dismiss the petition, if the evidence does not warrant termination. See id.,
¶16.
¶19 Relying on Therese S., S.S. asserts that the circuit court’s colloquy
must convey to the parent that there are only two legal outcomes at a dispositional
hearing: termination of parental rights or dismissal of the TPR petitions.
Acknowledging that the court did in fact inform S.S. that it could either terminate
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her parental rights or dismiss the TPR petitions, S.S. argues that the court “went
well beyond this binary” and instead presented her with a “panoply of other
alternatives that could occur … which were legally and factually nonexistent.”
¶20 Specifically, S.S. asserts that there is no legal or factual basis for
informing her that her children could immediately be returned to her care without
involvement from the Division of Milwaukee Child Protection Services, especially
given that these TPR proceedings involved a “CHIPS matter.” Because of the
CHIPS orders, S.S. argues that the court would have had no authority to allow her
to leave with her children following the TPR dispositional hearing, and therefore it
was erroneous to inform S.S. while accepting her plea that she could obtain such a
result.
¶21 S.S. next argues that the circuit court erred when it stated it could
later determine whether to “reinvigorate” the existing CHIPS cases if it did not
terminate S.S.’s parental rights. As best as we can discern, S.S. contends that if
the TPR case had been dismissed, the decision would have had no legal effect on
the CHIPS orders and the court could not have exercised its discretion to decide
whether to reinvigorate a separate court matter.
¶22 Finally, S.S. asserts that the circuit court “misstate[d] the law” when
it informed her that guardianship could be a dispositional alternative if the court
dismissed the State’s petitions and did not terminate her parental rights. S.S.
argues that guardianship would be a potential dispositional alternative “only after
the binary decision—to terminate, or not to terminate—has been made.”
¶23 The State responds by refuting all of S.S.’s arguments and by
disagreeing with her interpretation of Therese S. The State highlights the fact that
the circuit court did inform S.S. that it could either grant the TPR or dismiss the
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petitions. Regarding the court’s ability to “reinvigorate” the CHIPS orders, the
State explains that WIS. STAT. § 48.368(1) suspends the existing CHIPS orders
pending the outcome of a TPR proceeding. The State notes that the expiration
date for one child’s dispositional order passed while the TPR proceedings were
pending. As a result, the State submits that if the court had dismissed the TPR
petition, the court would have then had the option to extend the CHIPS order,10
thereby “reinvigorating” it, or it could have decided not to extend the CHIPS
order, resulting in the court losing jurisdiction and the child in question being
returned to S.S. As to guardianship, the State explains that the court could have
transferred guardianship either prior to the entry of a termination order or after
granting a termination order pursuant to WIS. STAT. § 48.977 (providing for the
appointment of guardians for children placed under, among others, a CHIPS order)
and WIS. STAT. § 48.427 (providing for the transfer of guardianship and custody
pending adoptive placement to various entities upon the circuit order terminating
the parental rights of one or both parents.).
¶24 We need not resolve the nuances of the parties’ arguments because,
as conceded by S.S. and as shown by the plea hearing transcript, as required by
Therese S., the circuit court informed S.S. that it would hear evidence at the TPR
dispositional hearing and then would either terminate her parental rights or dismiss
the State’s TPR petitions.
10
See WIS. STAT. § 48.368(1) (“If a petition for termination of parental rights is filed ...
during the year in which a dispositional order under s. 48.355 [CHIPS orders]… is in effect, the
dispositional … order … shall remain in effect until all proceedings related to the filing of the
petition or an appeal are concluded.”).
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¶25 We reject S.S.’s argument that Therese S. stands for the proposition
that as a matter of law, the circuit court, during a TPR plea colloquy, may inform a
parent that there are only two dispositional outcomes––termination or dismissal of
a TPR petition—and is prevented from further informing a parent of potential
outcomes if it would decide to dismiss the TPR petitions. What S.S. is really
arguing is that the court’s dispositional alternatives she is contesting were either
not plausible under the circumstances, or could have only occurred had the court
dismissed the petitions and additional, separate legal proceedings occurred. Other
than misinterpreting Therese S., S.S. does not provide us with any persuasive
authority to show us that the court, by presenting her with a “panoply of other
alternatives,” actually violated its mandatory duties.
¶26 In sum, S.S. has not persuaded us that the circuit court violated its
mandatory duties by presenting its dispositional alternatives, and that she did not
know or understand the information that should have been provided at the plea
hearing. Accordingly, we conclude that S.S. did not establish a prima facie case
for plea withdrawal on this issue, and therefore, we continue to S.S.’s next alleged
plea colloquy defect.
III. Circuit Court’s Statements Regarding the Statutory Standard Applied at
the Dispositional Hearing
¶27 We now turn to S.S.’s argument that during the plea colloquy, the
circuit court failed to explain the proper statutory standard that it is required to
apply at the dispositional phase of TPR proceedings. WISCONSIN STAT.
§ 48.426(2), provides that the “best interests of the child shall be the prevailing
factor considered by the court in determining the disposition” in a termination of
parental rights case. S.S. argues that the court misinformed her that the State
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would have the burden of proving that termination was in the best interests of the
children, and as a result, S.S. “satisfactorily alleged that she did not know or
understand this information,” and was entitled to a hearing on her plea withdrawal
motion.
¶28 We pause to note that in the discussion below, we focus our attention
on the circuit court’s colloquy with S.S. on October 21, 2021, when the court
actually accepted S.S.’s no contest pleas. While we are cognizant of the court’s
incorrect prior references at other pretrial hearings to a burden of proof that the
State carries at a dispositional hearing, those prior references neither alter nor
affect our conclusion below. Accordingly, we now recount in detail the court’s
colloquy with S.S. at the October 21, 2021 plea hearing at which S.S., S.S.’s prior
attorney, the GAL, the case manager, and the State were present.
¶29 At the outset of the plea colloquy, the circuit court ascertained S.S.’s
age, level of education, and that S.S. could read and write English. S.S.
acknowledged that she read the TPR petitions and “had a basic understanding” of
what the State was alleging.
¶30 The following interaction occurred with S.S.:
THE COURT: You have an absolute right to a trial,
and to have a jury or a judge decide after that trial if the
State has proven a reason to terminate your parental rights.
Do you understand that?
[S.S.]: Yes.
THE COURT: And the State would have to do that
by clear, convincing, and satisfactory evidence to a
reasonable certainty. That’s what we call the middle
burden. Do you understand that?
[S.S.]: Yes.
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THE COURT: By pleading no contest in the
grounds phase, you’re giving up your right to fight against
the termination of parental rights in the grounds phase, and
you’re acknowledging that the State can prove the grounds
by clear, convincing, and satisfactory evidence. Do you
understand that? Do you understand that, [S.S.]?
[S.S.]: Somewhat, but somewhat not. Because, um,
so it would be me against the State, right?
THE COURT: Yes.
[S.S.]: There would be a lot of people called, and I
would be going on the stand and all that, right?
¶31 In an attempt to address S.S.’s question, the circuit court began
informing S.S. of her “trial rights.” S.S. acknowledged her understanding that she
had a right to jury at the grounds phase. Upon reviewing additional rights with
S.S., she acknowledged that they made sense to her. At that point, the court
informed S.S. of the following:
THE COURT: Now, that does not mean that you’re
giving up your right to have a trial or to contest whether it’s
in the children’s best interest that the [c]ourt actually
terminate your parental rights. Do you understand that?
[S.S.]: Yes.
THE COURT: And I’m going to talk about that
second half of the process in just a second. But I want to
make sure you understand that this no contest plea only
applies to the first half. The grounds phase of the case.
Does that make sense?
[S.S]: Yes.
The circuit court turned its attention to the dispositional phase of the TPR
proceedings in this case, explaining:
THE COURT: Now, in the second half, at the
disposition phase, if the [c]ourt did not grant the
termination ultimately, meaning it did not find it was in the
children’s best interest[s] to do so, then the petitions would
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be dismissed, and that unfitness finding would be reversed.
Okay?
[S.S.]: Yes.
THE COURT: Okay. So let’s talk now about how
the trial works in the second half where you can contest if
you want, but it’s in the children’s best interest[s] that the
[c]ourt terminate your parental rights. It’s basically another
right to a trial except there’s no right to a jury in that
second half. It’s always just a trial to the [j]udge. Okay?
[S.S.]: Okay.
THE COURT: But all those same trial rights would
pertain. So it would be the State’s burden to prove it’s in
the children’s best interest[s] that I terminate your rights.
Although it’s just to a reasonable certainty. Not clear and
convincing evidence. Do you understand that?
[S.S.]: Yes.
THE COURT: So that’s a little bit lower burden.
But all those same trial rights would still apply. So
witnesses on the stand. The right of cross examination.
The right to introduce your own evidence. The right to
compel witnesses to come to court and testify for you. The
right to testify yourself or remain silent. But again,
knowing silence can be used against you. Do you
understand that you still will have all of those rights?
[S.S.]: Yes.
After informing S.S. of the potential dispositional outcomes, the circuit court
reviewed its comments above, stating:
THE COURT: So again just to review in that
second half, if the [c]ourt did not find it was in the
children’s best interest[s] to terminate your rights, the
petitions would be dismissed, and then a number of
different things could happen. But your unfitness finding
would be vacated, and your parental rights would not be
terminated. Does that make sense?
[S.S.]: Yes, ma’am.
THE COURT: The only issue in that second half is
[if] it [is] in the best interest[s] of your children to have
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your rights terminated and be adopted, or should the
petition be dismissed in pursuit of some other alternative.
So let me circle back around. Does that answer the
question that you were kind of mulling over before?
[S.S.]: Yes, ma’am. Yes, ma’am, it is.
S.S. testified that no one promised her or paid her anything in exchange for
entering a no contest plea as to grounds, and that she was not being coerced or
threatened. S.S. also testified that she spoke with her therapist about her decision
to enter no contest pleas. When asked by the court whether she was still
comfortable with entering her pleas, and whether she was making her decision to
plead no contest in a knowing, intelligent, and voluntary way, S.S. replied: “Yes,
ma’am.” Trial counsel also testified that S.S. was making knowing, intelligent,
and voluntary no contest pleas. Following the colloquy, the circuit court accepted
S.S.’s no contest pleas.
¶32 As to the dispositional hearing, this court has previously stated that
“the parent must be informed of the statutory standard the court will apply at the
second stage. That is, the court must inform the parent that ‘[t]he best interests of
the child shall be the prevailing factor considered by the court in determining the
disposition....’” Therese S., 2008 WI App 159, ¶16 (citation omitted; alterations
in Therese S.; emphasis added). Nowhere in Therese S. did we conclude,
however, that the State carries a burden of “reasonable certainty” to prove whether
termination was in a child’s best interests. The plain language of the case states
that the best interests of the child are “considered by the court[.]” See id.¶33 TPR decisions from this court have arrived at differing conclusions
as to the impact of misstatements of the standard of law or the burden of proof.
For example, in T.A.D.S., No. 2018AP2173, the circuit court similarly assigned a
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Nos. 2022AP1179
2022AP1180
burden to the State at the dispositional hearing. Id., ¶4. In concluding that
T.A.D.S. did not make a prime facie case on his plea withdrawal claim, this court
reasoned that the misstatement was irrelevant in the context of the entire record
because the importance of the best interests standard was explained to the parent.
Id., ¶13.
¶34 In contrast, in State v. A.G., No. 2021AP1476, unpublished slip op.
(WI App Feb. 15, 2022), the circuit court misstated the burden and this court
remanded for an evidentiary hearing on the parent’s prima facie case for plea
withdrawal. There, we differentiated the facts and explained that “unlike in
T.A.D.S., the [circuit] court did not advise A.G. that the ‘driving factor’ or ‘the
most important factor’ at the dispositional phase would be the child’s best
interest.” Id., ¶20.11
¶35 Given the recent court decisions cited above, we assume without
deciding that S.S. established a prima facie case for plea withdrawal on this
alleged defect. However, we further conclude that the State has shown, by clear
and convincing evidence, that S.S. knowingly and intelligently waived the right to
contest the allegations in the petition, as we now explain.
¶36 The crux of S.S.’s argument is that she took the circuit court “at face
value” when it told her that the State would be the party with the burden of
proving the best interests of a child standard to the court. S.S. appears to argue
that the court’s statements referencing her ability to have a trial at the dispositional
11
We note that after additional proceedings, State v. A.G., No. 2022AP652, unpublished
slip op. (WI App July 12, 2022), has been appealed to the Wisconsin Supreme Court and is
pending.
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Nos. 2022AP1179
2022AP1180
hearing prevented her from knowing and understanding the actual statutory
standard of best interests and its application at the TPR dispositional hearing.
¶37 We are not persuaded. While being examined by the State during
the postdispositional hearing, S.S. testified that, even before talking with her
attorney, she knew that “the judge” would ultimately decide what was best for her
children.12 S.S.’s own testimony further reveals the following:
[ADA:] When the [c]ourt asked you do … you
believe that you’re making this decision to plead no contest
in a knowing, intelligent and voluntary way and you said,
yes, Ma’am, that would have been honest to the [c]ourt,
correct?
[S.S.:] Yeah.
…
[ADA:] When I asked if you knew that the [c]ourt
would be making a decision about what is in the best
interest of your children, you said you already knew that?
[S.S.:] Yes, I heard her say that. Yeah, I remember
her saying that.
Although S.S. later testified that she would have gone to trial had she not been
misinformed that the State carried a burden of proof, when asked about her
understanding of the term “burden,” S.S. replied: “[i]t’s something that you got to
deal with on your record, hard to deal with, a burden, a worry.”
¶38 Based on the testimony above, we conclude that the State has shown,
by clear and convincing evidence that S.S. knowingly and intelligently waived the
right to contest the allegations in the petition because she clearly understood that
12
S.S., in her opening brief, concedes that she understood “the judge would be the
ultimate decisionmaker as to whether the best interest standard justified termination.”
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Nos. 2022AP1179
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the best interests of the child standard governed whether the court would terminate
her parental rights. We further conclude that, given S.S.’s understanding of the
term “burden,” the court’s misstatements regarding burden of proof did not negate,
in any meaningful way, S.S.’s understanding that the court would ultimately
decide whether to terminate her parental rights. See WIS. STAT. § 48.426(2).
¶39 In sum, we conclude that the State has met its burden in showing
that S.S. knowingly and intelligently waived the right to contest the allegations,
despite any misstatements made by the circuit court about the standard of law or
the burden of proof at the dispositional phase of a TPR.13 Accordingly, we affirm
the orders terminating S.S.’s parental rights to her children, and the orders denying
her postdisposition motion.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
13
To the extent we have not addressed an argument raised by S.S., the argument is
deemed rejected because it is either undeveloped or unsupported by the record. See State v.
Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is
not a performing bear, required to dance to each and every tune played on an appeal.”).
20