State v. A.G.

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.
February 15, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1476 Cir. Ct. No. 2020TP34

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO A.G., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

A.G.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Reversed and cause remanded with directions.
No. 2021AP1476

¶1 DONALD, P.J.1 A.G. appeals an order of the trial court terminating
his parental rights to Anna2 as well as an order denying his post-disposition
motion to withdraw his no contest plea. A.G. seeks to withdraw his plea on the
grounds that it was not knowing, intelligent, and voluntary. On appeal, A.G.
contends that the trial court erred in denying his post-disposition motion without
holding an evidentiary hearing. For the reasons set forth below, we agree and
therefore reverse the order denying the post-disposition motion and remand for an
evidentiary hearing.

BACKGROUND

¶2 On February 13, 2020, the State filed a petition to terminate A.G.’s
parental rights to Anna.3 The petition alleged that Anna was a child in continuing
need of protection or services (continuing CHIPS) and that A.G. had failed to
assume parental responsibility.

¶3 A hearing on the petition was held on June 1, 2020.4 The circuit
court explained A.G.’s rights in connection with a termination of parental rights
proceeding and how the proceedings worked. A.G. requested a jury trial.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
A.G. and his daughter share the same initials. We use the pseudonym “Anna” to refer
to A.G.’s daughter for ease of reading.
3
The State also petitioned to terminate Anna’s biological mother’s rights. This decision
focuses on the facts and the proceedings as they relate to A.G.
4
The Honorable Mark A. Sanders presided over the hearing on the petition. The
Honorable Ellen R. Brostrom presided over the plea hearing, the dispositional hearing, and the
post-disposition proceedings. We refer to Judge Sanders as the circuit court and Judge Brostrom
as the trial court.

2
No. 2021AP1476

¶4 Ten months later, on April 13, 2021, A.G. pled no contest to the
ground of continuing CHIPS and the failure to assume parental responsibility
ground was dismissed.5 In support of A.G.’s plea, testimony was taken from the
case manager, K.K. The trial court found that A.G. was unfit, and the matter
proceeded to disposition. After testimony and argument, the court found that it
was in Anna’s best interests to terminate A.G.’s parental rights.

¶5 A.G. filed a post-disposition motion seeking to withdraw his
no contest plea on the basis that his plea was not knowing, intelligent, and
voluntary. A.G. alleged that the trial court failed to establish during the plea
colloquy that he understood the potential dispositions that may occur after the
entry of a no contest plea. A.G. also alleged that the court improperly explained
the statutory standard that would apply at disposition.

¶6 After additional briefing, a hearing took place on November 12,
2021. At the hearing, the trial court denied A.G.’s motion without taking
evidence. The court found that A.G. failed to make a prima facie case that his plea
was not knowing, voluntary, and intelligent. This appeal follows. Additional
relevant facts will be discussed below.

DISCUSSION

¶7 On appeal, A.G. renews his arguments that during the plea colloquy:
(1) the trial court failed to establish that A.G. understood the potential dispositions

5
At a previous hearing, on October 15, 2020, A.G.’s counsel indicated that A.G. wished
to plead no contest to the grounds phase. After appearing for the hearing via Zoom for a short
period of time, A.G. left the hearing due to an internet issue. The trial court found him in default.
Subsequently, on April 13, 2021, the default judgment was vacated.

3
No. 2021AP1476

that may occur after the entry of a no contest plea; and (2) the trial court failed to
properly explain the statutory standard it would apply at disposition. A.G.
contends that the court erred in denying his post-disposition motion without an
evidentiary hearing. As discussed below, we conclude that A.G. is entitled to an
evidentiary hearing on both of his claims.

¶8 A plea in a termination of parental rights 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. Prior to accepting a plea of no
contest to a termination petition, the trial court is required to engage in a personal
colloquy with the parent. See WIS. STAT. § 48.422(7); Oneida Cnty. DSS v.
Therese S., 2008 WI App 159, ¶5, 314 Wis. 2d 493, 762 N.W.2d 122.

¶9 When a parent alleges that a plea was not knowingly, intelligently
and voluntarily entered, we use the analysis set forth in State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986). See Therese S., 314 Wis. 2d 493, ¶6. Under
Bangert, a post-disposition motion “must make a prima facie showing that the
[trial] 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.”
Therese S., 314 Wis. 2d 493, ¶6; State v. Brown, 2006 WI 100, ¶39, 293 Wis. 2d
594, 716 N.W.2d 906.

¶10 If a motion establishes a prima facie violation of a court mandated
duty and makes the requisite allegations, “the court must hold a postconviction
evidentiary hearing[.]” Brown, 293 Wis. 2d 594, ¶40. At the evidentiary hearing,
the burden shifts to the State “to show by clear and convincing evidence that the
… plea was knowing, intelligent, and voluntary despite the identified inadequacy
of the plea.” Id. To meet its burden, the State “may rely ‘on the totality of the

4
No. 2021AP1476

evidence, much of which will be found outside the plea hearing record.’” Id.
(citation omitted). This includes testimony and transcripts from prior hearings.
Id.

¶11 Whether a parent has presented a prima facie case by pointing to
deficiencies in the plea colloquy and has sufficiently alleged that he or she did not
know or understand information that should have been provided is a question of
law that we review de novo. Therese S., 314 Wis. 2d 493, ¶7.

¶12 To start, as set forth in A.G.’s post-disposition motion, A.G. was not
advised of the potential dispositions at the plea hearing. See WIS. STAT.
§ 48.422(7)(a) (stating that a trial court shall “[a]ddress the parties present and
determine that [an] admission is made voluntarily with understanding of … the
potential dispositions”). In addition, A.G. alleged that he did not understand the
potential dispositions. Thus, because A.G. established a prima facie case that
there was a violation of a mandatory court duty, and sufficiently alleged that he
did not know information that should have been provided at a plea hearing, we
conclude that A.G. is entitled to an evidentiary hearing on his first claim. See
Brown, 293 Wis. 2d 594, ¶40.

¶13 The State and the Guardian ad Litem (GAL) argue that A.G. is not
entitled to an evidentiary hearing for reasons outside of the plea hearing, including
that A.G. was informed of the potential dispositions at the hearing on the petition,
which took place ten months before the plea colloquy.

¶14 We disagree. As our supreme court stated in the context of a
criminal case, the “right to an evidentiary hearing under Bangert cannot be
circumvented by either the court or the State asserting that based on the record as a
whole the defendant, despite the defective plea colloquy, entered a constitutionally

5
No. 2021AP1476

sound plea.” State v. Howell, 2007 WI 75, ¶7, 301 Wis. 2d 350, 734 N.W.2d 48.
Thus, “[i]n keeping with Bangert, we examine the record at the plea hearing[.]”
Howell, 301 Wis. 2d 350, ¶7. And, here, as stated above, A.G. met the
requirements under Bangert to obtain an evidentiary hearing.

¶15 On remand, at the evidentiary hearing, the State and the GAL will
have an opportunity to present evidence outside the plea hearing that A.G.
understood the potential dispositions. See Brown, 293 Wis. 2d 594, ¶40 (stating
that “[i]n meeting its burden, the [S]tate may rely ‘on the totality of the evidence,
much of which will be found outside the plea hearing record.’” (citation
omitted)).6

¶16 Likewise, we also conclude that A.G. was entitled to an evidentiary
hearing on his second claim. At a plea hearing, a parent must be informed of the
statutory standard that applies at disposition. See Therese S., 314 Wis. 2d 493,
¶16.

¶17 In this case, as set forth in A.G.’s post-disposition motion, during the
plea colloquy, the trial court informed A.G. that in the grounds phase, he had a
“whole bunch” of rights, including “the right to force the State to prove the
grounds by clear, convincing, and satisfactory evidence to a reasonable certainty.”
Subsequently, in regards to the dispositional hearing, the court stated that the
“second half of the case is where the court decides is it in the child’s best interest

6
In support of its argument, the GAL cites Waukesha Cnty. v. Steven H., 2000 WI 28,
233 Wis. 2d 344, 607 N.W.2d 607. Steven H., however, is distinguishable. There, the parent
failed to assert, as required by Bangert, that he did not know or understand information that
should have been provided. Steven H., 233 Wis. 2d 344, ¶43. Further, we note that in Steven H.,
an ineffective assistance of counsel evidentiary hearing was held which “addressed similar
issues.” Id., ¶¶14, 43, 50.

6
No. 2021AP1476

to in fact terminate your parental rights.” The court then stated that A.G. would
“have all those same trial rights today for that second half.” However, contrary to
the court’s statement, at the dispositional hearing, the “same trial rights” do not
apply. There is not a burden of proof placed on the State. See WIS. STAT.
§ 48.426(2).

¶18 The State and the GAL suggest that a misunderstanding about the
burden of proof is “irrelevant” because the trial court stated it would decide
whether it is “in the child’s best interest” to terminate A.G.’s parental rights. In
support, the State and the GAL point to State v. T.A.D.S., No. 2018AP2173,
unpublished slip op. (WI App June 18, 2019).7 T.A.D.S., however, is
distinguishable.

¶19 In T.A.D.S., the trial court advised the parent that “at the disposition
phase the [c]ourt would have to make a finding that the driving factor, the most
important factor at the disposition phase, would be what’s in [the child’s] best
interest.” Id., ¶4. The court also told the parent that “at the disposition phase the
State would still have that burden of proof of showing what’s in [the child’s] best
interest[.]” Id. We concluded that the trial court’s comment about the burden of
proof was irrelevant because “the court thoroughly explained T.A.D.S.’s rights at
the disposition hearing, explained the potential outcomes and unequivocally stated
that its primary consideration at disposition was [the child’s] best interest.” Id.,
¶13.

7
An unpublished opinion issued on or after July 1, 2009, that is authored by a single
judge may be cited for its persuasive value. WIS. STAT. RULE 809.23(3)(b).

7
No. 2021AP1476

¶20 Here, unlike in T.A.D.S., the trial 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. In addition, as discussed above, the court did not explain
the potential outcomes. Thus, in the context of this particular case, we conclude
that the plea colloquy defect was not irrelevant.8

¶21 Thus, because A.G.’s post-disposition motion established a prima
facie case that the trial court failed to properly explain the statutory standard that
would apply at the dispositional hearing and sufficiently alleged that he did not
know information that should have been provided, we conclude that he is also
entitled to an evidentiary hearing on his second claim. See Brown, 293 Wis. 2d
594, ¶40.

¶22 Therefore, for the reasons stated above, we reverse the order denying
A.G.’s post-disposition motion, and remand this matter for an evidentiary hearing.
We note, however, that we are not determining whether the trial court should
ultimately grant or deny A.G.’s motion to withdraw his plea. As stated above, at
the evidentiary hearing, the State will have an opportunity to present evidence
relating to A.G.’s knowledge and understanding of the potential dispositions and
the statutory standard that applies at disposition.

By the Court.—Order reversed and cause remanded with directions.

8
We note that the GAL also argues that any error regarding the statutory standard at
disposition was “harmless error.” The GAL, however, does not provide any legal support for its
harmless error analysis, and therefore, we do not consider it further. State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to legal
authority will not be considered.”).

8
No. 2021AP1476

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

9