State v. T. L. 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.
September 4, 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. 2018AP1291 Cir. Ct. No. 2016TP175

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

T. L. G.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
LAURA GRAMLING PEREZ, Judge. Affirmed.
No. 2018AP1291

¶1 KESSLER, J.1 T.L.G. appeals an order of the circuit court
terminating her parental rights to her son, M.I.G. T.L.G. argues that her no contest
plea was not knowing, voluntary, or intelligent because her cognitive limitations
prevented her from understanding the consequences of her plea. She also argues
that her counsel did not accurately advise her about the applicable law. We affirm.

BACKGROUND

Procedural History

¶2 On May 31, 2016, the State filed a petition to terminate T.L.G.’s
parental rights. The petition alleged that M.I.G. was a child in need of continued
protection or services (continuing CHIPS) and failure to assume parental
responsibility.

¶3 At a hearing on December 12, 2016, T.L.G. requested new counsel.2
The circuit court denied the request, but granted counsel’s request for a
competency evaluation of T.L.G. and a determination of whether T.L.G. was in
need of a guardian ad litem (GAL). Dr. Kenneth Sherry conducted a competency
evaluation and determined that T.L.G. was competent to proceed without the
assistance of a GAL. At counsel’s request, Dr. Sherry conducted a second
evaluation and ultimately a GAL was appointed to assist T.L.G. in the
proceedings.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
This was the second time T.L.G. requested new counsel. The circuit court initially
appointed counsel from the State Public Defender’s Office. At a previous hearing, T.L.G.
requested new counsel. The circuit court granted T.L.G.’s request.

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No. 2018AP1291

¶4 On July 19, 2017, T.L.G. appeared with adversary counsel, her
GAL, and an advocate from Casa Maria. The circuit court stated that it was
informed that T.L.G. wished to plead no contest and that the court had a
discussion with T.L.G.’s counsel in chambers to “make sure that I understood
where everybody was at in making that decision.” The court confirmed with
T.L.G. that she wished to plead no contest to grounds. The court conducted a
colloquy with T.L.G. regarding the rights she was giving up by her no contest
plea. The court accepted T.L.G.’s no contest plea to the ground of continuing
CHIPS, pursuant to WIS. STAT. § 48.415(2), and proceeded to hear testimony from
the ongoing case manager in support of this ground.3 Based on T.L.G.’s no
contest plea, the testimony adduced at the hearing, as well as the documents
related to the underlying CHIPS case, the circuit court found the State had
established grounds by clear and convincing evidence. T.L.G. was found unfit,
and the matter was adjourned for a contested disposition hearing.

¶5 Following the disposition hearings, the circuit court issued a written
decision finding termination of T.L.G.’s parental rights to be in her child’s best
interest. The court found that while T.L.G. and the child were bonded and there
was no adoptive resource, T.L.G. was unable to provide a safe living environment
for the child, had not made significant progress in addressing her mental health
issues, and was unwilling to consistently participate in the services that would
assist her.

3
T.L.G. does not dispute that the circuit court’s colloquy complied with the requisites of
WIS. STAT. § 48.422(7). Rather, T.L.G. contends that the court was in error for relying on the
colloquy when T.L.G. did not understand the plea.

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No. 2018AP1291

Postdisposition

¶6 Following disposition, T.L.G. filed a notice of appeal. This court
remanded the matter to the circuit court. T.L.G. filed a postdisposition motion
alleging that her no contest plea was not knowing, voluntary, or intelligent because
she did not understand the rights she was giving up and because she did not
understand that she “was giving up a claim that the Department did not provide
reasonable efforts” to provide court-ordered services in an attempt to reunify her
with her son. T.L.G. alleged that her lack of understanding was a result of
inaccurate advice from her counsel.

¶7 At a hearing on the motion, T.L.G. testified that she pled no contest
because she “didn’t really understand [the plea],” and that her counsel “didn’t
think I had a good chance of winning.” T.L.G. stated that she was unaware that
the County was required to prove that the Department of Milwaukee Child
Protective Services (DMCPS) made reasonable efforts to provide the services that
would help reunite T.L.G. with her son. She also stated that she was not aware
that the County had to prove that T.L.G. failed to meet the conditions of return and
would likely not do so within the following nine months. When asked specific
questions about what T.L.G. did and did not understand when she pled no contest,
T.L.G. responded: “I didn’t know what I was answering. You guys throw stuff at
people and, you know, expect them to understand it. I don’t fully understand the
system. I don’t like it. I don’t agree with it.”

¶8 T.L.G.’s defense counsel, Jill Vento, also testified, telling the court
that she ultimately advised T.L.G. to plead no contest after “assess[ing] the
statutory factors. So number one. [M.I.G.] was a child who was found to be in
need of protection or services with a dispositional order. He had been out of the

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No. 2018AP1291

home for six months or more. She had not met the conditions for return. The
Department had made reasonable efforts, and it was unlikely that she was going to
meet the conditions within the next nine months.” Vento stated that T.L.G.’s
cognitive limitations made it difficult for T.L.G. to “connect the dots,” in that
T.L.G. did not understand how she was failing to meet the conditions for her son’s
return. Vento stated that her decision to advise T.L.G. to plead no contest was
strategic “[g]iven that the Department made reasonable efforts, that she didn’t
meet the strict statutory requirements of the CHIPS dispositional order, out of the
home for six months, those things were not even at issue. We had a chance to win
at the dispositional hearing because I felt I could establish that she had a
substantial relationship with [M.I.G.].” T.L.G. asked Vento if she told T.L.G. that
if a jury does not find that the Department made reasonable efforts then the jury
does not consider whether T.L.G. met the conditions for return. Vento responded
“I got to the point where we assessed did they make reasonable efforts, and my
conclusion was yes, they did.”

¶9 The postdisposition court denied T.L.G.’s motion. The court stated
“while I have found that the plea itself satisfies the requirements, the question is
whether [T.L.G.’s] testimony today is credible vis-a-vis the testimony of other
witnesses, and by and large I do not find it to be credible relative to the alleged
claim she did not know, as has been alleged, that she could have challenged
reasonable efforts instead of entering her plea.” This appeal follows.

DISCUSSION

¶10 On appeal, T.L.G. argues her plea was not knowing, voluntary, or
intelligent because “counsel misinformed her, and she did not understand that the

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No. 2018AP1291

County’s failure to make reasonable efforts was both [an] element and a defense in
the TPR petition.”

¶11 When a parent alleges that a stipulation was not knowingly,
voluntarily, and intelligently made, we apply the Bangert analysis.4 See
Waukesha Cty. v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607.
Under the Bangert analysis, the parent “must make a prima facie showing that the
circuit court violated its mandatory duties and he [or she] must allege that in fact
he [or she] did not know or understand the information that should have been
provided at the ... hearing.” Steven H., 233 Wis. 2d 344, ¶42. “If [the parent]
makes this prima facie showing, the burden shifts to the [State] 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. If the
parent fails to make a prima facie case, the circuit court may deny the motion
without an evidentiary hearing. See id., ¶43. Whether a parent has presented a
prima facie case is a question of law that 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. In
doing so, we look to the totality of the circumstances and the entire record to
determine the sufficiency of the circuit court’s colloquy. See Steven H., 233
Wis. 2d 344, ¶42.

¶12 We conclude that the postdisposition court performed a thorough
Bangert analysis and found that T.L.G.’s plea was knowing, voluntary, and
intelligent. See Steven H., 233 Wis. 2d 344, ¶ 42. As a result, the court found that
T.L.G. had not established a prima facie case that an evidentiary hearing was

4
See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

6
No. 2018AP1291

necessary, and denied her motion. See id., ¶43. In our review of the record, we
come to the same conclusion.

¶13 At the postdisposition hearing, T.L.G.’s testimony centered less on
her plea and more on her frustration with the termination process as a whole. She
testified: “I knew I was going to have a court date and I was going to be called to
testify. I simply did not want you guys to terminate my rights or whoever did, the
judge or you guys.... I want to be done working with you guys.” T.L.G. testified
that she was upset about losing her son and being “TPR’d,” telling the court “I
don’t like what happened in court, and I don’t like that my rights were terminated.
I don’t think this is a fair system.” When asked specific questions about what she
remembered or understood, T.L.G. testified that she did not remember what Vento
had told her about the County’s responsibility to make reasonable efforts, that she
did understand she would be found unfit, and that she did not remember being
advised about the best interest of the child standard. Vento testified that she
worked with T.L.G. to the best of her abilities. Vento testified that she
independently arrived at the conclusion that DMCPS made reasonable efforts and
made a strategic decision to focus on the strength of T.L.G.’s case at disposition
rather than at the grounds hearing.5

¶14 The postdisposition court found T.L.G.’s testimony to be “in direct
contradiction” of T.L.G.’s plea testimony and found her to be not credible.
Specifically, the court stated, “to the extent that [T.L.G.] suggests she did not

5
T.L.G. first asserts that because trial counsel did not understand the sequential nature of
the relevant jury instruction, WIS JI—CHILDREN 324A, as it applies to reasonable efforts, her plea
was not knowing, intelligent, and voluntary. Because the record supports the postdisposition
court’s decision, particularly counsel’s testimony about her strategic decisions, we need not
address this issue.

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No. 2018AP1291

understand or know about things, the court does not find that credible, particularly
compared with the transcript of [the plea] hearing .” We accept the court’s
findings. See Nicholas C.L. v. Julie R.L., 2006 WI App 119, ¶23, 293 Wis. 2d
819, 719 N.W.2d 508 (When the postdisposition court acts as fact-finder, it is the
assessor of witness credibility and we will not overrule the court’s credibility
determination unless the court’s findings are patently incredible.). Accordingly,
we conclude that the record supports the postdisposition court’s finding that
T.L.G. has not made a prima facie showing that her no contest plea was not
knowing, voluntary, or intelligent.6

¶15 For the foregoing reasons, we affirm the order of the circuit court.

By the Court.—Order affirmed.

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

6
The State’s brief argues that Vento did not provide ineffective assistance of counsel.
We note that T.L.G. did not raise a claim of ineffective assistance of counsel in her brief,
therefore we do not address this argument.

8