Walworth County DH&HS v. S.S.K.

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.
July 17, 2019
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. 2019AP782 Cir. Ct. No. 2018TP6

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

WALWORTH COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

S.S.K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Affirmed.
No. 2019AP782

¶1 REILLY, P.J.1 S.S.K. appeals from an order terminating her
parental rights to A.L.S., arguing that the circuit court erred by relying solely on
her admission to the allegations against her in the termination of parental rights
(TPR) petition at the grounds phase. S.S.K. argues that in addition to her
admission, the court needed to take testimony pursuant to WIS. STAT. § 48.422(3)
and (7). We disagree and affirm the order terminating S.S.K’s parental rights.

BACKGROUND

¶2 A.L.S. was removed from her home in June 2016 when she was
fifteen months old after it was discovered that A.L.S. had ingested lithium while
S.S.K. was “outside working in the yard.”2 S.S.K. was unable to “provide a
consistent explanation of how [A.L.S.] would have access to the medication or
why she was unsupervised at that time.” On the day A.L.S. was to be released
from the hospital, S.S.K. appeared “under the influence of an illicit substance.”
S.S.K. fled the hospital before a social worker could speak with her. When a
social worker reached S.S.K. by phone, S.S.K. sounded “disoriented” and
“appeared to have difficulty understanding any information provided to her.”

¶3 A.L.S. was found to be a child in need of protection or services
(CHIPS), and the out of home placement was continued pursuant to a CHIPS
dispositional order entered with conditions of return on November 30, 2016.
S.S.K. did not meet the conditions for return, and on March 28, 2018, the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
A.L.S.’s father was also home when she ingested the lithium, and he was subject to a
TPR petition, which is not at issue in this appeal.

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No. 2019AP782

Walworth County Department of Health and Human Services (the County) filed a
TPR petition against S.S.K., claiming abandonment pursuant to WIS. STAT.
§ 48.415(1), continuing CHIPS pursuant to § 48.415(2), and failure to assume
parental responsibility pursuant to § 48.415(6).3 S.S.K. initially contested the
petition but eventually changed her plea to an admission to the TPR ground of
continuing CHIPS. After a colloquy, the court accepted S.S.K.’s admission and
found her unfit. At the dispositional phase, the court heard testimony from several
witnesses and determined that it was in the best interest of A.L.S. that S.S.K.’s
parental rights be terminated. S.S.K. appeals.

DISCUSSION

¶4 S.S.K. argues that the court never established the existence of a
factual basis for the TPR petition’s allegations through testimony, which she
claims is required under WIS. STAT. § 48.422(3) as interpreted by Waukesha
County. v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607. S.S.K. also
argues that there was insufficient evidence at the disposition phase to determine
that termination of her parental rights was in A.L.S.’s best interest. We are not
persuaded.

¶5 Where a parent brings a challenge to his or her plea under WIS.
STAT. § 48.422(7), we analyze the issue under State v. Bangert, 131 Wis. 2d 246,
389 N.W.2d 12 (1986). See Steven H., 233 Wis. 2d 344, ¶42. Pursuant to

3
There are two phases in a TPR proceeding: a “grounds” or “unfitness” phase and a
dispositional phase. See Steven V. v. Kelley H., 2004 WI 47, ¶¶24-27, 271 Wis. 2d 1, 678
N.W.2d 856. At the grounds phase, the circuit court determines whether the parent is unfit based
on one of grounds listed in WIS. STAT. § 48.415. Steven V., 271 Wis. 2d 1, ¶¶24-25. If the
parent is found unfit, the case proceeds to the dispositional phase, during which the court
determines if termination is in the best interests of the child. Id., ¶27.

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No. 2019AP782

Bangert, the parent seeking plea withdrawal “must make a prima facie showing
that the circuit court violated its mandatory duties and [the parent] must allege that
in fact he [or she] did not know or understand the information that should have
been provided at the [TPR petition] hearing.” Steven H., 233 Wis. 2d 344, ¶42.
“If [the parent] makes this prima facie showing, the burden shifts to the county to
demonstrate by clear and convincing evidence that [the parent] knowingly,
voluntarily and intelligently waived the right to contest the allegations in the
petition.” Id. Whether a parent made a prima facie showing is a question of law
we review de novo. See Oneida Cty. DSS v. Therese S., 2008 WI App 159, ¶7,
314 Wis. 2d 493, 762 N.W.2d 122. “Under Bangert … a court may examine the
entire record, not merely one proceeding, and look at the totality of the
circumstances to determine whether the circuit court’s procedures and
determinations are sufficient.” Steven H., 233 Wis. 2d 344, ¶42.

Grounds Phase

¶6 S.S.K. has not made a prima facie case that the plea colloquy was
deficient. Of importance is that S.S.K. did not enter a no-contest plea at the
grounds phase of this proceeding, but rather she entered an admission to the
ground of continuing CHIPS. This is an important clarification as the difference
between a no contest plea and an admission has implications under the statute.
WISCONSIN STAT. § 48.422(3) requires testimony in support of a petition’s
allegations when a parent pleads no contest. The statute 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).” Id. However, this
subsection is inapplicable in this case as S.S.K. admitted to the allegations in the

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No. 2019AP782

petition.4 See Steven H., 233 Wis. 2d 344, ¶52 (“Deciding not to contest the
allegations of the petition is not equivalent to admitting the allegations in a
petition.”). Under the facts of this case, where a parent admits the allegations of
the petition, the appropriate procedure is found in § 48.422(7), see Steven H., 233
Wis. 2d 344, ¶52, which provides in pertinent part that “[b]efore accepting an
admission of the alleged facts in a petition, the court shall” “[m]ake such inquiries
as satisfactorily establish that there is a factual basis for the admission,”
§ 48.422(7)(c). The plain language of the statute does not require the court to
ascertain the factual basis through testimony.5

4
S.S.K. challenges this reading of the statute, arguing that the language in WIS. STAT.
§ 48.422(3) requiring the court to “hear testimony in support of the allegations in the petition,
including testimony as required in sub. (7)” suggests testimony is required in either no-contest
pleas or admissions. S.S.K. cites to Kenosha County DHS v. Jodie W., 2006 WI 93, ¶25, 293
Wis. 2d 530, 716 N.W.2d 845, for the proposition that § 48.422(7) applies to either a no-contest
plea or an admission. We disagree with S.S.K.’s assertion that testimony is statutorily required
where a parent enters an admission at the grounds phase of a TPR petition. When a criminal
defendant or a parent in a TPR case enters a no-contest plea, he or she is not admitting that he or
she committed the crime or committed the allegations; instead, he or she is simply not
challenging the charge. See No contest, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A criminal
defendant’s plea that, while not admitting guilt, the defendant will not dispute the charge.”).
Under those circumstances, where the individual is not admitting the allegations, it is important
for the court to “hear testimony in support of the allegations because testimony safeguards
accurate fact-finding and protects the parents.” Waukesha Cty. v. Steven H., 2000 WI 28, ¶56,
233 Wis. 2d 344, 607 N.W.2d 607. In contrast, where a parent is admitting he or she committed
the allegations in the TPR petition, there is no need, according to the legislature, to take
additional testimony. See § 48.422(7).
5
As other courts have discussed, the language of WIS. STAT. § 48.422(7)(c) is similar to
WIS. STAT. § 971.08(1)(b), which states that under the criminal code the circuit court must “make
such inquiry as satisfies it that the defendant in fact committed the crime charged.” The phrase
“such inquiry” simply requires the court to “guarantee[] that the defendant is aware of the
elements of the crime, and [that] the defendant’s conduct meets those elements.” State v.
Thomas, 2000 WI 13, ¶22, 232 Wis. 2d 714, 605 N.W.2d 836. Our supreme court found that the
“judge must ensure that a defendant realizes that his or her conduct does meet the elements of the
crime charged” by the defendant agreeing personally with the factual basis presented, but may
also establish it “through witnesses’ testimony, or a prosecutor reading police reports or
statements of evidence” or “when counsel stipulate[s] on the record to facts in the criminal
complaint.” Id., ¶21.

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No. 2019AP782

¶7 We conclude that the circuit court sufficiently established a factual
basis for the admission. At the hearing, the circuit court conducted a lengthy plea
colloquy with S.S.K. The court went through each element of continuing CHIPS
under WIS. STAT. § 48.415(2) with S.S.K. and utilized the TPR petition for the
factual basis necessary to accept S.S.K.’s admission:

THE COURT: And I understand that as far as the
continuing need is concerned, you are agreeing that those
grounds exist for termination of your parental rights?
[S.S.K.]: Yes, I do.
….

THE COURT: So by entering an admission to the
continuing need grounds, then you give up your right to
object to what the State would present in support of its
petition. Do you understand that?
[S.S.K.]: Yes.
….
THE COURT: So to the facts contained in the petition
relating to the continuing need of protection or services,
what is your plea?
[S.S.K.]: I admit.

Just as a criminal defendant may stipulate to the facts established in a criminal
complaint at a plea hearing, so too may a parent stipulate to the facts in a TPR
petition. See State v. Thomas, 2000 WI 13, ¶21, 232 Wis. 2d 714, 605 N.W.2d
836.

¶8 Further, considering the entire record as we are permitted to do,
there was a sufficient factual basis for S.S.K.’s admission. S.S.K. suffers from a
drug addiction that has contributed to a substantial criminal history involving
convictions for drugs and operating a vehicle while intoxicated (OWI). S.S.K.’s
criminal behavior led to a car accident in March 2017 that put her in the hospital

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No. 2019AP782

and a rehabilitation facility for months with a traumatic brain injury. In February
2018, S.S.K. was convicted of OWI 2nd, 3rd, and 4th and bail jumping, and at the
time of the dispositional hearing, she was serving her sentence in prison. S.S.K.
had not met her conditions of return, despite reasonable efforts by the County, and
at the dispositional hearing the social worker testified that A.L.S. does not have “a
substantial relationship” with S.S.K. due to her “behaviors and actions.” She
explained that A.L.S. had been out of S.S.K.’s home for twenty-nine months,
during which time “her visits with [A.L.S.] were extremely inconsistent” and
“[t]here were gaps of time with absolutely no contact.” S.S.K. admitted that she
was abusing pain medication during the times she was having visits with A.L.S.,
and the social worker informed the court that S.S.K. failed to complete AODA
mental health treatment and a psychological evaluation after her brain injury. As
S.S.K. has not established a prima facie showing that the circuit court violated its
mandatory duties, we see no error with S.S.K.’s admission at the grounds phase.

Dispositional Phase

¶9 Finally, we consider S.S.K.’s argument that there was insufficient
evidence to determine that the termination of her parental rights was in A.L.S’s
best interest. Once the parent has been found unfit at the grounds phase, the
court’s decision to terminate a parent’s rights turns on the best interests of the
child. See WIS. STAT. §§ 48.01(1), 48.426(2). We review the circuit court’s
determination under the best interests of the child standard for an erroneous
exercise of discretion. See State v. Margaret H., 2000 WI 42, ¶¶27, 32, 234
Wis. 2d 606, 610 N.W.2d 475. “A proper exercise of discretion requires the
circuit court to apply the correct standard of law to the facts at hand.” Id., ¶32.

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No. 2019AP782

¶10 When assessing whether termination is in a child’s best interests, the
circuit court must consider the six factors under WIS. STAT. § 48.426(3):

(a) The likelihood of the child’s adoption after termination.
(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was
removed from the home.
(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the
child.
(f) Whether the child will be able to enter into a more stable
and permanent family relationship as a result of the
termination, taking into account the conditions of the
child’s current placement, the likelihood of future
placements and the results of prior placements.

¶11 Here, the circuit court analyzed each of the six statutory factors and
explained how they applied in this case. As to the first factor, the court found that
the foster parents would be an adoptive resource after termination without any
obstacles. The court noted that A.L.S. was removed from her parents’ care when
she was fifteen months old, that at the time of the dispositional hearing she was
almost four years old, and “that there is a difference between the child at the time
of disposition and at the time of removal from the home” in terms of her behavior
and her speech progress. After considering all the testimony, the court further
determined that A.L.S. did not have a substantial relationship with S.S.K. and
would, therefore, not be harmed by severing the relationship. As to the time
period that A.L.S. had been separated from S.S.K., the court noted that she had
been in out of home care for twenty-eight months, which was a “substantially
longer period than she was within the care of the biological parents.” Finally, the
court noted that A.L.S. was “thriving currently with the [foster parents].”

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No. 2019AP782

¶12 Nonetheless, S.S.K argues that “[t]he evidence at the dispositional
hearing showed that A.L.S. had a strong bond with her mother” as when she
visited her mother in prison two months before the hearing “she screamed
‘mommy’” and it appeared that she “wanted to remain with her mother in prison
and not return to the foster home when the visit was over.” S.S.K. also argues that
although the court addressed all the statutory elements, “the court’s real focus was
on the fact that S.S.K. caused herself to become incarcerated upon her own
volition.”

¶13 In making these arguments, S.S.K. fails to consider our standard of
review—erroneous exercise of discretion—which gives deference to the court’s
decision. See Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶12, 324
Wis. 2d 180, 781 N.W.2d 503. S.S.K. argues that the circuit court’s discretionary
decision was erroneous based on one visit between S.S.K. and A.L.S. as she
disagrees with how the court weighed the testimony and applied the six best
interest factors. We find that the circuit court applied the proper standard of law to
the relevant facts, and the record supports the circuit court’s decision that
termination of S.S.K.’s parental rights was in A.L.S.’s best interests.

By the Court.—Order affirmed.

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

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