State v. N. H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 4, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP597 Cir. Ct. No. 2021TP27

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO E. B.-H., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

N. H.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.
No. 2024AP597

¶1 WHITE, J.1 Nico appeals from the order denying him plea
withdrawal to the grounds of the termination of parental rights (TPR) of his son,
Everett.2 In his first appeal, we concluded that Nico made a prima facie case that
his no contest plea to the grounds of the TPR was not knowing, intelligent, and
voluntary, and this court granted him an evidentiary hearing on his claim. The
postdisposition court denied Nico’s motion for plea withdrawal after the
evidentiary hearing. Upon review, we affirm.

BACKGROUND

¶2 The circuit court terminated Nico’s parental rights to his son,
Everett, in June 2022.3 He moved to withdraw his no contest plea to the grounds
in December 2022. The postdisposition court denied his request in February 2023.
Nico appealed, and this court concluded that he had made a prima facie case for
plea withdrawal and directed the postdisposition court to hold an evidentiary
hearing on his claim. State v. N.H., No. 2022AP1945, unpublished slip op. (WI
App Mar. 14, 2023) (discussing the factual background of Nico’s first appeal).

¶3 Nico’s claim was based on the circuit court misinforming him of the
statutory standard for the disposition of the TPR petition. At the initial

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.
2
For ease of reference and to protect the confidentiality of the proceedings, pseudonyms
will be used to refer to the father and son. See WIS. STAT. RULE 809.86.
3
The Honorable Ellen R. Brostrom presided over the TPR proceedings including
accepting Nico’s no-contest plea and ordering termination as the disposition of the TPR petition.
We refer to Judge Brostrom as the circuit court. The Honorable Joseph R. Wall presided over the
postdisposition proceedings and denied Nico’s motion for plea withdrawal. We refer to Judge
Wall as the postdisposition court.

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No. 2024AP597

appearance, the circuit court described the State as having a burden “to prove by
clear, convincing and satisfactory evidence” that it was in Everett’s best interests
to terminate Nico’s parental rights as the disposition of the petition.

¶4 During the plea colloquy, the circuit court verified that Nico
understood that in the grounds phase (1) he had the right to a trial on the grounds,
either to a jury or the judge; (2) at least ten jurors out of twelve would need to
agree if he chose a jury trial; (3) he would have the right to cross-examine the
State’s witnesses at trial; (4) he had the right to present witnesses and evidences in
support of his case; (5) he had the right to testify, but that his silence could be used
against him; and (6) it was the “State’s burden to prove the grounds by clear,
convincing, and satisfactory evidence to a reasonable certainty.”

¶5 Also during the plea colloquy, the circuit court verified, through two
questions, that Nico understood that by entering a plea on the grounds, he was not
giving up his right to have a trial about whether it was in Everett’s best interests to
terminate Nico’s parental rights. The court confirmed that Nico understood that in
“the contested disposition hearing, there’s no right to a jury; you have all those
same trial rights, but it’s always just a trial to the judge.”

¶6 During the evidentiary hearing, Nico testified Everett’s case was his
only experience with the children’s court system and he was satisfied with his
attorney’s representation. He testified he does not know what the definition of a
burden of proof is. He testified that he understood the dispositional hearing was
about Everett’s “best interests” and that the judge would make the decision on the
TPR petition based on the best interests of the child.

¶7 No additional witnesses were called and the postdisposition court
denied Nico’s motion for plea withdrawal. The court concluded that based on the

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No. 2024AP597

plea hearing transcript and Nico’s testimony at the evidentiary hearing, the State
had proven by clear and convincing evidence that Nico’s no contest plea was
entered knowingly, intelligently, and voluntarily.

¶8 This appeal follows. Additional relevant facts are discussed below.

DISCUSSION

¶9 Nico argues that the postdisposition court erred when it did not
permit him to withdraw his no contest plea to the grounds of the TPR petition after
the evidentiary hearing. He asserts that the State failed to prove that his plea was
entered knowingly, intelligently and voluntarily. We conclude that Nico’s claim
fails on two bases: first, our supreme court clarified that misstatement of the
burden outside of the plea colloquy does not necessarily establish a prima facie
case that a plea was not entered knowingly, intelligently, and voluntarily, and
second, the State satisfied its burden in the evidentiary hearing to show that Nico’s
plea was entered knowingly, intelligently, and voluntarily.

¶10 A TPR petition is decided in a two phase process. For the first
phrase, the State must prove the grounds for the TPR by clear and convincing
evidence. WIS. STAT. § 48.422 (2021-22). For the second phase, if the grounds
are proven, the circuit court exercises its discretion to determine whether the TPR
is in the child’s best interests. WIS. STAT. §§ 48.426, 48.427.

¶11 If a parent enters a plea to the grounds phase, the circuit court must
engage the parent in a colloquy, governed by the requirements of WIS. STAT.
§ 48.422(7) and due process, to ensure that the plea was entered knowingly,
intelligently, and voluntarily. Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, ¶25,
293 Wis. 2d 530, 716 N.W.2d 845. A parent who entered a plea on the grounds

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No. 2024AP597

phase may move to withdraw that plea if the parent can show that the plea was not
entered knowingly, intelligently, and voluntarily. Brown Cnty. DHS v.
Brenda B., 2011 WI 6, ¶26, 331 Wis. 2d 310, 795 N.W.2d 730.

¶12 A parent seeking to withdraw a plea based on a failure to fulfill a
duty in the plea colloquy must make a prima facie case (1) that the circuit court
violated its statutory duties, and (2) that the parent did not understand the
information that should have been provided at the hearing. Oneida Cnty. DSS v.
Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122. See also
State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986) (describing a
movant’s requirement to make prima facie showing that a plea was accepted
without the circuit court’s conformance with mandatory procedures, commonly
known as a Bangert violation). If the parent makes the prima facie case, the
burden shifts to the State to show by clear and convincing evidence in an
evidentiary hearing that the plea was entered knowingly, intelligently, and
voluntarily despite the defect in the plea colloquy. Therese S., 314 Wis. 2d 493,
¶6.

¶13 Whether the State has met its burden to prove that a parent’s plea
was knowing, intelligent, and voluntary is a question of constitutional fact. See
State v. Gomolla, 2024 WI App 13, ¶18, 411 Wis. 2d 239, 4 N.W.3d 610. In our
review, “we accept the circuit court’s findings of historical and evidentiary fact
unless they are clearly erroneous” and “[w]e independently determine whether
those facts demonstrate that the [parent’s] plea was knowing, intelligent, and
voluntary.” See State v. Hoppe, 2009 WI 41, ¶ 45, 317 Wis. 2d 161, 765 N.W.2d
794.

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No. 2024AP597

¶14 In our previous decision, we concluded that Nico made a prima facie
case for plea withdrawal.4 Nico urges us to apply the law of the case, which
would mean that the question before us is whether the State met its burden in the
evidentiary hearing, not whether he established a prima facie Bangert violation.
State v. Jensen, 2021 WI 27, ¶13, 396 Wis. 2d 196, 957 N.W.2d 244 (discussing
that under the law of the case rule, courts must “adhere to an appellate court’s
ruling on a legal issue ‘in all subsequent proceedings in the trial court or on later
appeal[,]’” unless a “‘controlling authority has made a contrary decision of the
law’ on the same issue”).

¶15 However, since this case was remanded and the evidentiary hearing
was held, the Wisconsin Supreme Court clarified that references to “trial rights” in
the plea colloquy alone did not establish a prima facie Bangert violation. State v.
B.W., 2024 WI 28, ¶67, 412 Wis. 2d 364, 8 N.W.3d 22. Our supreme court
concluded that a parent did not “make a prima facie showing under Bangert that
the circuit court’s reference to ‘trial rights’ meant that the clear, satisfactory, and
convincing burden of proof applicable at the grounds phase, also applied at the
disposition phase” when the circuit court “stated the correct standard at
disposition—the best interests of the child.” Id. Therefore, as the basis of Nico’s
claim is that circuit court’s statement on the burden of proof or standard of review

4
In the evidentiary hearing, the postdisposition court acknowledged that the entire
record supported Nico’s prima facie case of a violation—there is no dispute that the circuit court
described, during the initial hearing on the petition, that the State had a clear and convincing
burden at the disposition of the TPR; however, the circuit court referred to the “best interests” of
the child in the plea colloquy itself. To meaningfully discuss the second phase of a TPR petition,
the circuit court must inform the parent “of the statutory standard the court will apply” under
WIS. STAT. § 48.426(2), that “[t]he best interests of the child shall be the prevailing factor
considered by the court in determining the disposition[.]” Oneida Cnty. DSS v. Therese S., 2008
WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122.

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No. 2024AP597

was only stated as a clear and convincing burden during the initial hearing, Nico’s
claim fails.

¶16 Further, we conclude that Nico’s claim fails even if we relied upon
our previous determination that a prima facie Bangert violation occurred. Based
upon our examination of the record, the State satisfied its burden in the evidentiary
hearing that Nico’s plea was entered knowingly, intelligently, and voluntarily.
During the evidentiary hearing, Nico testified that he did not understand what a
burden of proof was, either at the time of his plea or during the evidentiary
hearing. He stated that he entered the no contest plea because he wanted
additional time to seek counseling and improve his case for the disposition.
However, Nico’s testimony and the entire record do not support that Nico’s plea
was affected by the misstatement at the initial hearing. As the postdisposition
court stated, “if [Nico] had testified that he understood what clear and convincing
evidence was and that the State would have a much higher burden of proof at
disposition, we would see reliance” on the error in the initial hearing on the
petition. But Nico’s testimony at the evidentiary hearing does not support that his
decision to plea was impacted by his understanding of the burden at the second
phase of the TPR.

¶17 The record reflects that Nico expressly stated he understood the
proceedings during the plea colloquy. Although he now claims he did not, we
ultimately conclude that the plea colloquy sufficiently addressed the facts that
support a knowing, intelligent, and voluntary plea and included the language of the
TPR statutes. Further, Nico was given sufficient opportunity to ask questions
about the proceedings. As such, we consider the plea colloquy valid. “A failure to
recognize the implications of a valid plea colloquy would ‘debase[ ] the judicial
proceeding at which a [parent] pleads and the court accepts its plea.’” See State v.

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No. 2024AP597

Jenkins, 2007 WI 96, ¶62, 303 Wis. 2d 157, 736 N.W.2d 24 (quoting United
States v. Hyde, 520 U.S. 670, 676 (1997)). Therefore, we conclude that Nico’s
claim also fails on the merits.

CONCLUSION

¶18 For the reasons stated above, we affirm the postdisposition court’s
order.

By the Court.—Order affirmed.

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

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