2011 WI 6
SUPREME COURT
CASE NO.: COMPLETE TITLE:
OF
WISCONSIN
2010AP321 In re the termination of parental rights to Desmond F., a person under the age of 18: Brown County Department of Human Services, Petitioner-Respondent, v. Brenda B., Respondent-Appellant-Petitioner, Brian K., Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 788 N.W.2d 385 (Ct. App. 2010-Unpublished)
OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS:
December 1, 2010
Circuit Brown Timothy A. Hinkfuss
For the respondent-appellant-petitioner there were briefs and oral argument by Leonard D. Kachinsky, Sisson & Kachinsky Law Office, Appleton. For the petitioner-respondent there was a brief and oral argument by Robert J. Collins, II, Brown County Corporation Counsel.
2011 WI 6
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No.
2010AP321
2009TP38)
(L.C. No.
STATE OF WISCONSIN
:
IN SUPREME COURT
In re the termination of parental rights to Desmond F., a person under the age of 18:
Brown County Department of Human Services, Petitioner-Respondent, v. Brenda B., Respondent-Appellant-Petitioner, Brian K., Respondent.
A. John Voelker Acting Clerk of Supreme Court
FILED
FEB 4, 2011
REVIEW of a decision of the Court of Appeals.
Affirmed.
¶1
ANN WALSH BRADLEY, J. decision of the
Brenda B. seeks review of an of appeals that affirmed
unpublished
court
orders of the circuit court terminating Brenda's parental rights
No.
2010AP321
to
her
son,
Desmond
F.1
During
the
first
phase
of
the
proceedings, Brenda pled no contest to grounds for involuntary termination, which resulted in a finding of parental unfitness. After conducting a dispositional parental the best hearing, rights interests the circuit finding child. court that It
terminated termination
Brenda's was in
upon of the
subsequently denied Brenda's motion to withdraw her no contest plea. ¶2 Brenda asserts that she presented a prima facie case
that she did not knowingly, voluntarily, and intelligently enter the no contest plea. Specifically, she argues that the circuit
court failed to inform her that by pleading no contest she was waiving her constitutional right to parent, and it failed to inform her of the full range of possible dispositions the court could enter. ¶3 Given that a finding of parental unfitness does not result in an involuntary termination of parental
necessarily
rights, we determine that the circuit court was not obligated to inform Brenda that by pleading no contest she was waiving her constitutional right to parent. the court need not explain What We additionally determine that the right is to parent the is a
that is
constitutional right.
important
that
parent
Brown County D.H.S. v. Brenda B., No. 2010AP321, unpublished slip op. (Wis. Ct. App., June 2, 2010), affirming orders of the circuit court for Brown County, Timothy A. Hinkfuss, J., presiding. 2
1
No.
2010AP321
understands the import of the rights at stake rather than the sources from which they are derived. ¶4 We further conclude that the parent must be informed
of the two independent dispositions available to the circuit court. That is, that the court may decide between dismissing
the petition and terminating parental rights. ¶5 Finally, we determine that the colloquy in this case
fulfilled the requirements set forth above and that Brenda has failed to present a prima facie case that her plea was not entered knowingly, voluntarily, and intelligently. we affirm the court of appeals. I ¶6 In October 2008, Desmond was adjudged to be a child in He was placed outside the home, Nine months later, the Brown (the of County) Brenda's filed a Accordingly,
need of protection or services. in the care of foster parents. County petition rights.2 Department for of Human
Services
involuntary
termination
parental
As grounds, the County alleged that Desmond was in
continuing need of protection or services and also that Brenda
The petition also requested termination of the rights of Brian K., the presumed father, as well as "Any and All Known or Unknown Fathers."
2
3
No.
2010AP321
failed to assume parental responsibility for Desmond.3 Stat. §§ 48.415(2), 48.415(6).4 ¶7 Through her attorney, Brenda opposed the
See Wis.
petition,
demanded a jury trial for the fact-finding hearing, and waived the statutory time limits. 2009. ¶8 However, at a hearing that took place one day before Trial was scheduled for October 6,
the scheduled trial, Brenda's attorney advised the court that Brenda intended to plead no contest to the petition's allegation that there were grounds for termination. He explained that
Brenda still intended to contest the ultimate disposition: My client and I will talk some more but she [has] indicated to me that she understands the procedure 'cuz I explained it to her. . . . I explained to her the purpose of a jury trial and the rights that go along with it. We've talked. .... My client indicates to me that she is going to agree to waive her right to have a jury trial in this case and she [has] made it clear to me that she wishes to contest the ultimate disposition in this case where she would argue to the Court that it's not in the best interests of the child to terminate her parental rights. She's——she has clearly advised me that she does not want to give up her parental rights and she's made it
3
The factual details underlying the petition's allegations are not set forth in this opinion because the merits of the allegations are not at issue in this review. All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 4
4
No.
2010AP321
clear to me after we further discussed this case that she does not wish to have a trial. The County agreed that if Brenda did not contest that Desmond was in continuing need of protection or services, the County would move to dismiss the remaining alleged ground for
termination, failure to assume parental responsibility. ¶9 On the following morning, the circuit court placed
Brenda under oath and engaged her in a colloquy to determine whether she knowingly, voluntarily, and intelligently intended to plead no contest to grounds for termination. The court's
colloquy was lengthy, occupying 20 pages of hearing transcript. Additionally, both Brenda's counsel and counsel for the County addressed Brenda and made extensive inquiries relating to her plea. ¶10 The court began by ascertaining Brenda's age,
educational level, mental state, satisfaction with her attorney, and ability to read, write, acknowledged that she had and understand the English. petition Brenda and its
reviewed
attachment with her attorney, and she stated that she did not have any questions. ¶11 Brenda informed the court that she wanted to plead no The court inquired into
contest to grounds for termination.
whether Brenda understood the procedural rights she was waiving by entering the plea, including the right to call witnesses, the right to cross-examine witnesses, and the right to remain silent without having anyone comment upon her silence. It inquired
into whether Brenda understood that she was giving up the right
5
No.
2010AP321
to make the County prove the elements of continuing need of protection or services by clear and convincing evidence. ¶12 The court explained that the question at the fact-
finding hearing would have been whether there were grounds to terminate her parental rights: [W]hat this whole hearing would be about is not whether you're terminate——your parental rights should be terminated. That's ultimately my decision in the disposition hearing. I can either grant the petition to terminate your parental rights or dismiss the petition to terminate your parental rights. What this is——what this trial would be is [to] see if there are facts to terminate your parental rights on. It's called a fact-finding hearing. Do you understand that? Brenda responded that she understood. The court outlined the
jury instructions and the special verdict questions, and Brenda attested that she understood the findings a jury would have to make. ¶13 Upon the court's questioning, Brenda indicated she
understood that if the court accepted her plea, the court would be required to make a finding of parental unfitness. inquired: [I]f you make a no contest plea and I accept your plea . . . I have to make a finding of parental unfitness. Do you understand that? The court
6
No.
2010AP321
Brenda indicated that she understood.5 ¶14 The court informed the Brenda next that once grounds consist for of a
termination
were
found,
phase
would
dispositional hearing.
It explained that at the dispositional
hearing, the court could either grant the petition or dismiss the petition, and that decision would be made based on the best interests of the child: I can grant the petition at a dispositional hearing or I can dismiss the petition at a dispositional hearing. Those are the two alternatives and by case law I have to explain to you that those are the alternatives. The standard that I use at the dispositional hearing is different than the standard at a fact-finding hearing. The standard is the best interest of the child. ¶15 The court outlined the factors that it would consider
at disposition6 and explained: "I make my decisions based on the The court agreed to delay making the unfitness finding until the beginning of the dispositional hearing "to allow you different alternatives." According to Brenda's attorney's representations, the intention was to allow Brenda time to decide whether she wished to voluntarily consent to the termination of her parental rights. Brenda's attorney explained: "[I]f she decides to voluntarily terminate her parental rights, then there would be no need for a finding of unfitness." These factors include: the likelihood of the child's adoption after termination; the age and health of the child; whether the child has a substantial relationship with the parent or other family members and whether it would be harmful to the child to sever those relationships; the wishes of the child; the duration of the separation of the parent from the child; and whether the child will enter into a more stable and permanent family relationship as a result of the termination taking into account the condition of the current placement, the likelihood of future placements, and the results of prior placements. 7
6 5
No.
2010AP321
best
interest
of
the
child."
Brenda
indicated
that
she
understood the factors that would be considered by the court using the best interests of the child standard. ¶16 counsel After for the court County finished its colloquy with Among Brenda, other
the
questioned
Brenda.
inquiries, he asked whether she understood that by pleading no contest, she was giving up her right to fight the County's
allegation that Desmond was in continuing need of protection or services, and that by giving up her right to fight that
allegation, she could lose her parental rights to Desmond at the dispositional hearing: Q: You understand that by pleading no contest you give up your right to fight the County's allegation that the child is in continuing need of protection or services? A: Yes. Q: . . . Do you understand that by giving up your right to fight that allegation you could lose your parental rights to Desmond [] at the dispositional hearing? A: Yes. ¶17 Counsel for the County also inquired about Brenda's of the specific rights she would lose if her
understanding
parental rights were terminated at the dispositional hearing: Q: Do you understand that at the dispositional hearing, if the Court terminates your parental rights, you will lose the right to have visitation with your child? A: Yes.
8
No.
2010AP321
Q: You will lose the right to know any information about your child including where the child is going to school and information about the child's health? A: Yes. Q: Are——that you will lose decisions for your child? A: Yes. Q: That the child will not have the right to inherit from you? A: Yes. Q: That you will not have the right to inherit from your child? A: Yes. Q: That you will no longer have the right to custody of the child? A: Yes. ¶18 In response to further questioning by counsel for the the right to make any
County, Brenda acknowledged that she was aware that the County had identified Desmond's current foster mother as a proposed adoptive employees available parent. had for Likewise, she acknowledged that county be the
discussed Desmond's
various custody,
alternatives including
that
might with
custody
Department of Human Services, foster home placement, residential care, and institutionalization. ¶19 Brenda rights In response to to questioning how from her own of that attorney, parental she was
professed proceedings
understand
termination
operate.
She
acknowledged
familiar with the evidence in the case, and she agreed that some
9
No.
2010AP321
of
the
evidence
was
positive
and
some
of
the
evidence
was
negative. ¶20 Before making any findings, the court asked Brenda
whether she had any questions, and Brenda responded that she had none. The court then accepted her no contest plea and concluded
that it was tendered "freely, voluntarily and intelligently": After a discussion with [Brenda] here on the record I asked her a variety of questions, received a variety of responses and [the guardian ad litem] made a statement and [Brown County's counsel] made statements and he asked questions as——as well did [Brenda's counsel]. I am finding that she freely, voluntarily and intelligently tendered a plea of no contest to the petition and the supplement to. I do find that there's a factual basis in the petition; in the supplement thereto for a fact-finding under 48.415(2)(a). So I will accept her no contest plea here today. The court indicated that Brenda was "very composed," that she "articulated well," and that she "appeared to be very confident of her responses" and "asked appropriate questions." It
scheduled the dispositional hearing for the following month. ¶21 At the scheduled dispositional hearing, the court
initially made the finding of unfitness that had been deferred from the grounds phase of the proceedings. Brenda then
testified, as did the proposed adoptive mother and the county social worker who had initiated the petition. ¶22 the In a memorandum decision issued several days later, court terminated Brenda's parental rights to
circuit
Desmond.
It explained that the "ultimate decision whether to 10
No.
2010AP321
terminate parental rights is discretionary."
After discussing
the statutory factors, it concluded that terminating Brenda's parental rights was in Desmond's best interests. It transferred
parental rights to the State Department of Children and Families pending adoption. ¶23 Brenda filed a notice of appeal. On Brenda's request,
the court of appeals remanded the matter to the circuit court for further proceedings so that Brenda could file a motion to withdraw her no contest plea. Brown County D.H.S. v. Brenda B.,
No. 2010AP321, unpublished slip op. (Wis. Ct. App., Feb. 18, 2010). ¶24 On remand in the circuit court, Brenda argued that the
colloquy preceding her no contest plea7 was deficient in two respects. She contended that the circuit court should have
inquired into whether she understood that she was waiving her constitutionally protected right to act as a parent by pleading no contest. to Brenda also argued that she the circuit court of was the
required
ascertain
whether
understood
all
Throughout the motion, Brenda's counsel asserted that Brenda was seeking to withdraw her "admission." The circuit court construed Brenda's motion as one to withdraw a plea rather than any "admission." The court explained: "You are asking to have her plea withdrawn. I think it's a plea. I note in reviewing the transcript that she did not admit, that she was a no contest, there is a difference[.]" 11
7
No.
2010AP321
potential
dispositions
available
under
Wis.
Stat.
§ 48.427.8
Brenda asserted that she had been unaware of the implications of her no contest plea with respect to these two matters. ¶25 any The court concluded that Brenda had not established in the colloquy. plea It denied Brenda's an an No. motion to
defect
withdraw hearing. opinion.
her
no
contest court of
without
holding in B.,
evidentiary unpublished 2010AP321,
The Brown
appeals D.H.S. v.
affirmed Brenda
County
unpublished slip op. (Wis. Ct. App., June 2, 2010). II ¶26 presented This case raises the question of whether Brenda has a prima facie case that her plea was not entered
knowingly, voluntarily, and intelligently.
To address Brenda's
arguments, we are required to consider the requirements of due process and the interpretation of Wisconsin statutes. ¶27 Whether Brenda has presented a prima facie case is a Oneida County D.S.S. v. Therese S., 2008 WI Likewise, the
question of law.
App. 159, ¶7, 314 Wis. 2d 493, 762 N.W.2d 122.
8
Wisconsin Stat. § 48.422(3) provides that "[i]f the petition is not contested the court shall hear testimony in support of the allegations in the petition, including testimony as required in sub. (7)." Wisconsin Stat. § 48.422(7)(a) provides that the court must "[a]ddress the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions." In this case, Brenda did not contest the allegation in the petition that grounds for termination existed. Nevertheless, she did contest the termination of parental rights petition, arguing that the termination would not be in Desmond's best interest. 12
No.
2010AP321
requirements of due process and the interpretation of statutes present questions of law. State v. McGuire, 2010 WI 91, ¶26,
328 Wis. 2d 289, 786 N.W.2d 227; State v. Carter, 2010 WI 132, ¶19, __ Wis. 2d __, __ N.W.2d __. independently of the We review questions of law rendered by the circuit
determinations
court and the court of appeals.
State v. Vanmanivong, 2003 WI
41, ¶17, 261 Wis. 2d 202, 661 N.W.2d 76. III ¶28 setting To forth provide the context of to our discussion, rights as we begin as by the
nature
parental
well
procedures under Wisconsin statutes by which parental rights may be involuntarily terminated. Then, we turn to address Brenda's Finally,
arguments about the requirements of a plea colloquy.
we apply the requirements we set forth to the colloquy given in this case. ¶29 care, "A parent's desire for and right to the companionship, and management that of his or her children deference is an
custody,
important absent a
interest powerful
undeniably
warrants
and,
countervailing
interest,
protection."
Sheboygan County D.H.H.S. v. Julie A.B., 2002 WI 95, ¶22, 255 Wis. 2d 170, 648 N.W.2d 402; see also Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768. child relationship is recognized as a The parentliberty
fundamental
13
No.
2010AP321
interest protected by the Fourteenth Amendment.9 Kelley H., 2004 WI 47, ¶22, 271 Wis. 2d 1,
Steven V. v. 678 N.W.2d 856
(citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). ¶30 Nevertheless, Wisconsin's Children's Code, Wis. Stat.
ch. 48, provides that "under certain circumstances" a court "may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents." § 48.01(1)(ag). Termination of parental Wis. Stat.
rights adjudications
are "among the most consequential of judicial acts" because they involve the power of the State to "permanently extinguish[]" any legal recognition of the rights and obligations existing between parent and child. Steven V., 271 Wis. 2d 1, ¶21. "When the
State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id., ¶23
(quoting Santosky, 455 U.S. at 753-54). ¶31 "until Initially, the parental right is considered paramount there has that been the an appropriate power v. judicial may be proceeding to 116
demonstrating terminate that
state's M.W.
exercised D.H.S.,
right."
Monroe
County
In this case, there is no question that Brenda has a liberty interest in her relationship with Desmond that is protected under the Constitution. We recognize that not all biological parental relationships warrant constitutional protection. See, e.g., Caban v. Mohammed, 441 U.S. 380, 392 (1979) ("In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child."). 14
9
No.
2010AP321
Wis. 2d 432, 436-37, 342 N.W.2d 410 (1984).
A court may not
terminate parental rights without first making an individualized determination that the parent is unfit. 405 U.S. 645, 649 (1972). Stanley v. Illinois,
Once an unfitness determination is
made, however, it is the best interests of the child rather than the rights of the parent that is considered "paramount." Wis. Stat. § 48.01. See
To accommodate the different and sometimes
conflicting interests involved, termination of parental rights proceedings are bifurcated into two phases. Wis. 2d 170, ¶24. ¶32 The first phase consists of a fact-finding hearing, Julie A.B., 255
where the purpose is to determine whether parental unfitness can be proven. the parent A.B., Wis. Stat. § 48.424(1). receives 255 a full During this first phase, of The procedural burden is rights. on the
complement ¶24.
Julie
Wis. 2d 170,
petitioner to demonstrate by clear and convincing evidence that grounds for termination exist.10 Id.; Wis. Stat. § 48.31(1). If
the petitioner meets that burden, the court must find the parent to be unfit. Wis. Stat. § 48.424(4).
Wisconsin Stat. § 48.415 establishes 12 different grounds for termination. Continuing need of protection or services is one of these grounds. See Wis. Stat. § 48.415(2). The procedures outlined in Wis. Stat. ch. 48 are meant to ensure that parental rights will be terminated only "after a deliberative, well considered, fact-finding process utilizing all the protections afforded by the statutes unless there is a specific, knowledgeable, and voluntary waiver." See M.W. v. Monroe County D.H.S., 116 Wis. 2d 432, 437, 342 N.W.2d 410 (1984). 15
10
No.
2010AP321
¶33 ultimate
An
unfitness of
finding the
does
not
predetermine Julie A.B.,
the 255
outcome
proceedings.
Wis. 2d 170, ¶28.
Rather, a finding of unfitness permits the
court to move on to the second phase of the proceedings, the dispositional phase. During the dispositional phase, the court
determines whether the parent's rights will be terminated and if so, what will happen to the child. ¶26. It is at the the best interests of Steven V., 271 Wis. 2d 1, the child that is the 255
"polestar"
dispositional
hearing.
Julie
A.B.,
Wis. 2d 170, ¶30; Wis. Stat. § 48.426(2). IV ¶34 Under the procedures outlined above, it is during the
first phase of an involuntary termination of parental rights proceeding that the parent's interest in the parent-child
relationship is most jealously protected. to enter a no contest plea during this
A parent who chooses phase is giving up
valuable protections and must have knowledge of the rights being waived by making the plea. Kenosha County D.H.S. v. Jodie W.,
2006 WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845 (citing State v. Bangert, 131 Wis. 2d 246, 265-66, 389 N.W.2d 12(1986)). ¶35 The principles and analysis of Bangert apply.
Waukesha County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607; Jodie W., 293 Wis. 2d 530, ¶24 n.14. The
circuit court must engage the parent in a colloquy to ensure that the colloquy plea is is knowing, by voluntary, the and intelligent. of Wis. This Stat.
governed
requirements
16
No.
2010AP321
§ 48.422(7)
and
notions
of
due
process.
Steven
H.,
233
Wis. 2d 344, ¶¶25, 39. ¶36 deficient If the parent can later show that the colloquy was and also alleges that he or she did not know or
understand the information that should have been provided, that parent has made a prima facie case that the plea was not
knowing, voluntary, and intelligent.
Id., ¶42.
At that point,
the burden shifts to the petitioner to demonstrate by clear and convincing evidence that the parent knowingly, voluntarily, and intelligently pled no contest. ¶37 Here, Brenda alleges Id. two deficiencies. First, she
asserts that the court failed to inform her that she was waiving her constitutional right to parent. the court failed to inform her Second, she asserts that of the full range of
dispositions.
We address these alleged deficiencies in turn. A
¶38
According
to
Brenda's
argument,
the
court
was
obligated to inform her that, upon the finding of unfitness, she would lose her constitutional right to parent Desmond. She
asserts that informing a parent that the plea will result in a finding of unfitness is insufficient because it does not fully inform the parent of the more solemn loss of the
constitutionally protected right to parent his or her child. ¶39 Under our statutory scheme, it is not accurate to say
that a parent loses his or her constitutional right to parent if the court accepts a no contest plea during the grounds phase. Rather, the immediate consequence of the plea is that the parent 17
No.
2010AP321
will be found to be unfit. Wis. Stat. § 48.424(4).
Therese S., 314 Wis. 2d 493, ¶11;
Even after the parent is found to be
unfit, however, the circuit court may in its discretion opt to dismiss the petition after the dispositional hearing, leaving all parental rights intact. ¶40 Therefore, the Wis. Stat. § 48.427(2). was not obligated to inform
court
Brenda that, upon acceptance of her plea, she would lose her constitutional right to parent Desmond. persuasively explained in a recent As the court of appeals unpublished opinion,
"[b]ecause Wisconsin statutory law does not permit a court to terminate parental rights upon a finding of unfitness without completing the dispositional phase, we see no rationale for
requiring a court to inform a parent that a finding of unfitness results in the automatic loss of the constitutional right to parent." Dane County D.H.S. v. James M., Nos. 2009AP2038 &
2009AP2039, unpublished slip op., ¶24 (Wis. Ct. App., Mar. 18, 2010).11 ¶41 Nevertheless, whenever a parent wishes to plead no
contest to grounds for involuntary termination, the parent must be provided with sufficient information to evaluate the stakes involved. Before a no contest plea can be accepted, a parent
An unpublished opinion has no precedential value and is not binding on any court of this state. Wis. Stat. § 809.23(3)(b) (as amended by Sup. Ct. Order No. 08-02, 2009 WI 2, 311 Wis. 2d xxv). Nevertheless, an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under Wis. Stat. § 752.31(2) may be cited for its persuasive value. Id. 18
11
No.
2010AP321
must understand that the power of the State may be employed to permanently extinguish any legal recognition of the rights and obligations existing between parent and child. 271 Wis. 2d 1, to ¶21. The parent must be See Steven V., given be sufficient lost if,
information
understand
the
rights
that
could
during the second phase of the proceedings, the court decides to terminate parental rights. ¶42 It is likewise essential for parents to understand
that they are agreeing to waive the protections which safeguard parental rights from permanent extinguishment by the State. The
parent must be informed that there are a number of procedural trial rights put in place to prevent parental rights from being terminated without cause,12 and that these rights are waived with the court's acceptance of the plea. ¶43 It is important that the parent understand that by
pleading no contest to a ground for termination, the parent is waiving the right to make the petitioner prove unfitness by
clear and convincing evidence, and that acceptance of the plea will result in a finding that the parent is unfit. Therese S.,
314 Wis. 2d 493, ¶¶10-11; James M., unpublished slip op., ¶24; see also Wis. Stat. § 48.424(4). ¶44 Finally, the parent must be informed that by pleading
no contest to grounds for termination, the parent has waived a
See, e.g., Wis. Stat. § 48.23(2) (providing for the right to counsel); Wis. Stat. § 48.31(2) (providing for a right to a jury trial); State v. Shirley E., 2006 WI 129, ¶49, 298 Wis. 2d 1, 724 N.W.2d 623. 19
12
No.
2010AP321
fact-finding
hearing
during
the
phase
of
the
proceedings
in
which the parent's rights receive the utmost protection under the Constitution. Should a parent wish to contest termination
after he or she is found to be unfit, that parent is left with the sole issue of whether termination of parental rights is in the best interests of the child. Once the parent is found to be
unfit, it is the court's determination about what is best for the child rather than any concern about protecting the parent's right that drives the outcome. Therese S., 314 Wis. 2d 493,
¶16; James M., unpublished slip op., ¶24. ¶45 At oral argument, Brenda's counsel advanced that it
was necessary for a court to explain that the right to parent derives from the Constitution. We disagree that the word
"constitutional" has the talismanic significance attributed to it by counsel. What is essential is that a parent understands
the nature and import of the rights involved——not necessarily the source of those rights. ¶46 unfitness Accordingly, does not given that a finding in an of parental
necessarily
result
involuntary
termination of parental rights, we determine that the circuit court was not obligated to inform Brenda that by pleading no contest she was waiving her constitutional right to parent. We
additionally determine that the court need not explain that the right to parent is a constitutional right. What is important is
that the parent understands the import of the rights at stake rather than the sources from which they are derived. B 20
No.
2010AP321
¶47
We move next to the question of whether the colloquy
was deficient because the court failed to inform Brenda of the full range of dispositions it could enter. Before accepting an
admission of the alleged facts in a petition (or in this case, a no contest plea to grounds for termination), a court must
determine that it is made with understanding of "the potential dispositions." Wis. 2d 493, ¶14. ¶48 Subsection Wisconsin Stat. § 48.427 is entitled "Dispositions." (1) mandates that "after receiving any evidence Wis. Stat. § 48.422(7); Therese S., 314
related to the disposition, the court shall enter one of the dispositions specified under subs. (2) to (4)." Those
subsections provide: (2) The court may dismiss the petition if it finds that the evidence does not warrant the termination of parental rights. (3) The court may enter an order terminating parental rights of one or both parents. the
(3m) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977, the court shall [transfer guardianship and custody pending adoption to any one of a number of individuals or agencies enumerated in the statute, or appoint a guardian and transfer guardianship and custody to that guardian]. (3p) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the court may enter one of the orders specified in sub. (3m)(a) or (b). If the court enters an order under this subsection, the court shall terminate the guardianship under s.48.977. 21
No.
2010AP321
(4) If the rights of one or both parents are terminated under sub. (3), the court may enter an order placing the child in sustaining care under s. 48.428.13 ¶49 contends Brenda that asserts the statute was is unambiguous. because the She court
the
colloquy
deficient
discussed only two of the potential dispositions——dismissing the petition and terminating parental rights. Brenda argues that
subs. (3m), (3p), and (4) are all "dispositions," and further, that the court was required to inform her of those dispositions prior to accepting her plea. ¶50 At first glance, Brenda's argument that the statute is Wisconsin Stat. § 48.427
unambiguous appears to have merit.
refers to "one of the dispositions specified under subs. (2) to (4)," which would appear to indicate that subs. (2), (3), (3m), (3p), and (4) are all "dispositions." ¶51 advanced Nevertheless, by Brenda the does not plain pass meaning a closer interpretation examination.
Subsection (1) provides that a court must enter "one of the dispositions specified under subs. (2) to (4)." the court cannot simply enter one of the Nevertheless, set
"dispositions"
It is appropriate for the court to order sustaining care if it finds that the child is unlikely to be adopted or that adoption is not in the best interest of the child. Wis. Stat. § 48.428(1). When a child is placed in sustaining care, legal custody and guardianship is transferred to a department or agency, and physical placement is in the home of the sustaining parent. Wis. Stat. § 48.429(2). Subject to the authority of the guardian and legal custodian, a sustaining parent has certain rights and responsibilities necessary for the day-to-day care of the child. Wis. Stat. § 48.428(3). 22
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forth in sub. (3m), sub. (3p), or sub. (4).
Rather, it must
first enter a disposition terminating parental rights under sub. (3). See Wis. Stat. § 48.427(3m) ("If the rights of both
parents or of the only living parent are terminated under sub. (3) . . . ."); id. § 48.427(3p) ("If the rights of both parents or of the only living parent are terminated under sub.
(3) . . . ."); id. § 48.427(4) ("If the rights of one or both parents are terminated under sub. (3) . . . ."). ¶52 Based on the statutory language, it is not accurate to
say that there are five independent dispositions, and the court must choose one of them. Rather, the court must first choose
between the two independent dispositions set forth in sub. (2) and sub. (3)——it must dismiss the petition or terminate parental rights. exercise If the court terminates parental rights, the court may several alternatives for designating custody,
guardianship, and care of the child.
The availability of the
alternatives set forth in sub. (3m), sub. (3p), and sub. (4) are contingent upon the court's determination that parental rights should be terminated under sub. (3). ¶53 The purpose of the statutory requirement that the
court inform the parent about the potential dispositions is to provide the parent with information relevant to the plea. In a
case such as this where the likely guardianship and custody of the child is known to all parties, it does not further the purpose underlying the colloquy to inform the parent about
hypothetical but improbable outcomes.
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¶54
The
court
of
appeals
recently
addressed
a
similar
argument in Therese S., 314 Wis. 2d 493. mother decided not to contest the
In that case, the allegations that
county's
there were grounds to terminate her parental rights. informed the mother that she was "admitting the
The court for
grounds
termination but still leaving open the question as to what's gonna happen, the disposition." the concept of "disposition" Id., ¶14. as follows: The court explained "[I]t hasn't been
decided yet what we're going to do. actually entered today. to do." ¶55 deficient. Id.
Your termination is not
We have more work to do to decide what
The Therese S. court concluded that the colloquy was "[A]t the very least," the court of appeals
concluded, "a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent's rights or dismiss the petition if the evidence does not warrant
termination."
Id., ¶16.
The court of appeals stopped short of
"requiring courts to inform parents in detail of all potential outcomes." ¶56 Id., ¶17. We agree with the Therese S. court and determine that
not only would such a requirement be "unduly burdensome," id., but more importantly, it has the potential to confuse or mislead rather than to inform. To render a plea knowing, voluntary, and
intelligent, we conclude that the parent must be informed of the two independent dispositions available to the circuit court.
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No.
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That is, the court may decide between dismissing the petition and terminating parental rights.14 V ¶57 In applying the principles discussed above, we do not The questions to be asked depend Under the facts presented provided Brenda with
provide a specific checklist.
upon the circumstances of the case. here, we conclude that the
colloquy
sufficient information to understand the import of the rights at stake. Further, we determine that Brenda received sufficient
information to understand the potential dispositions. ¶58 During the plea, Brenda was informed that at the
dispositional hearing, the power of the State could be employed to permanently extinguish legal recognition of the rights and obligations existing between her and Desmond. Counsel for the
County asked if Brenda understood that she "could lose [her] parental rights to Desmond [] at the dispositional hearing," and Brenda stated that she understood. ¶59 was Supra, ¶16.
Through questioning by counsel for the County, Brenda with additional information to understand the
provided
consequences that termination of parental rights would have on her relationship with Desmond. Counsel for the County confirmed
her understanding that she could lose custody and the right to care for Desmond, the right to make decisions for Desmond, the
It is not inconsistent with this opinion, if the court deems it relevant in an individual case, to inform the parent of possible alternatives for designating custody, guardianship, and care of the child. 25
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No.
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right to receive information about Desmond, the right to inherit from Desmond, and the right to visit Desmond. ¶60 Additionally, Brenda was and informed that she Id., ¶17. that was she had a
number of procedural
rights,
waiving those Specifically,
procedural rights if the court accepted her plea.
the court informed Brenda that she was waiving the right to call witnesses, the right to cross-examine witnesses, and the right to remain silent without having anyone comment upon her silence. Id., ¶11. ¶61 Brenda also was advised that her parental rights could
not be terminated without the County proving unfitness, and that by pleading no contest, she was waiving the right to have the County prove by clear and convincing evidence that Desmond was in continuing need of protection or services. Id., ¶11. Brenda
professed to understand that she was "giv[ing] up [her] right to fight the County's allegation" that Desmond was in continuing need of protection or services, and that acceptance of her plea would result in a finding of unfitness. ¶62 the Id., ¶¶13, 16.
Further, the court advised Brenda that the standard at hearing differed ¶14. decision from It the standard that at at the the on
dispositional
fact-finding dispositional
hearing. hearing,
Id., its
explained be
would
made
based
Desmond's best interests, and that the court could determine that it would be in Desmond's best interests to terminate her parental rights. ¶63 The Id., ¶¶14-15. court informed Brenda that during the
dispositional phase of the proceedings, the court could dismiss 26
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the petition or terminate Brenda's parental rights.
Id., ¶14.
Brenda acknowledged that she was aware of various alternatives that might be available for Desmond's custody, and that
Desmond's current foster mother was considered by the County as a proposed adoptive mother. ¶64 Id., ¶18.
Under these circumstances, we conclude that Brenda has
failed to present a prima facie case that her plea was not entered knowingly, voluntarily, and intelligently. For that
reason, the circuit court did not err by denying Brenda's motion to withdraw her no contest plea. ¶65 In sum, given that a finding of parental unfitness
does not necessarily result in an involuntary termination of parental rights, we determine that the circuit court was not obligated to inform Brenda that by pleading no contest she was waiving her constitutional right to parent. We additionally
determine that the court need not explain that the right to parent is a constitutional right. What is important is that the
parent understands the import of the rights at stake rather than the sources from which they are derived. ¶66 We further conclude that the parent must be informed
of the independent dispositions available to the circuit court. That is, that the court may decide between dismissing the
petition and terminating parental rights. ¶67 Finally, we determine that the colloquy in this case
fulfilled the requirements set forth above and that Brenda has failed to present a prima facie case that her plea was not
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No.
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entered knowingly, voluntarily, and intelligently. we affirm the court of appeals. By the Court.—The decision of the court of
Accordingly,
appeals
is
affirmed.
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1
