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.
July 12, 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. 2022AP652 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 orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Reversed and cause remanded with directions.
No. 2022AP652

¶1 DONALD, P.J.1 A.G. appeals an order terminating his parental
rights to Anna.2 He also appeals from an order denying relief after we reversed
and remanded this case for an evidentiary hearing on whether his no contest plea
was knowing, intelligent, and voluntary. For the reasons set forth below, we
reverse and remand with directions to allow A.G. to withdraw his plea.

BACKGROUND

¶2 The relevant background facts of this case are not in dispute. On
February 13, 2020, the State filed a petition to terminate A.G.’s parental rights to
Anna. A hearing on the petition was held on June 1, 2020. At the hearing, the
circuit court explained A.G.’s rights in connection with termination of parental
rights proceedings and how the proceedings worked.3

¶3 Ten months later, on April 13, 2021, A.G. pled no contest to the
ground of continuing CHIPS, and the matter proceeded to disposition. The trial
court found that it was in Anna’s best interests to terminate A.G.’s parental rights.

¶4 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: (1) the trial court failed to establish during the plea

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 Honorable Mark A. Sanders presided over the hearing on the petition. We refer to
Judge Sanders as the circuit court. The Honorable Ellen R. Brostrom presided over the plea
hearing, the dispositional hearing, and the post-disposition proceedings. We refer to Judge
Brostrom as the trial court.

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colloquy that he understood the potential dispositions that may occur after the
entry of a no contest plea; and (2) that the trial court improperly explained the
statutory standard that would apply at disposition.

¶5 A hearing on the post-disposition motion took place on
November 12, 2021, and the trial court denied A.G.’s motion without taking
evidence. The trial court found that A.G. failed to make a prima facie case that his
plea was not knowing, voluntary, and intelligent.

¶6 A.G. appealed, and we reversed and remanded for an evidentiary
hearing. See State v. A.G. (A.G. I), No. 2021AP1476, unpublished slip op. (WI
App Feb. 15, 2022). Based on the plea hearing transcript and the allegations in
A.G.’s post-disposition motion, we concluded that A.G. had made a prima facie
showing for an evidentiary hearing. Id., ¶¶12, 21. We indicated that at the
evidentiary hearing, the State would have an opportunity to present evidence to
establish that A.G.’s plea was knowing, voluntary, and intelligent. Id., ¶22.

¶7 On March 30, 2022, the trial court held a hearing. At the start of the
hearing, A.G.’s counsel informed the court that A.G. was not present, and that he
did not have an explanation for A.G.’s absence. The State indicated that its
intention would have been to call A.G.; however, its position was that the
argument could be made on the transcripts.

¶8 The State moved the transcripts into evidence, and based on the
transcripts, argued that A.G.’s plea was knowing, intelligent, and voluntary. The
Guardian ad Litem (GAL) joined in the State’s argument. A.G.’s counsel
contended that the transcripts were insufficient for the State to meet its burden.

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No. 2022AP652

¶9 The trial court indicated that it would be issuing a written decision,
but at that point, it was denying A.G.’s motion to withdraw his plea. The trial
court stated that the State had met its burden by clear and convincing evidence.
The trial court also stated that it did not have any evidence to the contrary, which
supported the finding that the State had met its burden.

¶10 In its written decision, the trial court found that A.G. was fully
informed of the dispositional options at the June 1, 2020 hearing and he
“illustrated he understood these outcomes by testifying at disposition in favor of
reunification and the continuation of the CHIPS proceedings, rather than
termination.” The trial court also stated that at the dispositional hearing it applied
“both the preponderance and the clear and convincing standards,” thus, “[a]ny
application of the clear and convincing standard would have been to [A.G.’s]
advantage” and “he was not prejudiced on this front.” This appeal follows.
Additional relevant facts will be referenced below.

DISCUSSION

¶11 “A parent’s interest in the parent-child relationship and in the care,
custody, and management of his or her child is recognized as a fundamental liberty
interest protected by the Fourteenth Amendment.” Steven V. v. Kelly H., 2004 WI
47, ¶22, 271 Wis. 2d 1, 678 N.W.2d 856 (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982)). Accordingly, termination of parental rights adjudications “are
among the most consequential of judicial acts, involving as they do ‘the awesome
authority of the State to destroy permanently all legal recognition of the parental
relationship.’” Id., ¶21 (citation omitted).

¶12 “[I]t is during the first phase of an involuntary termination of
parental rights proceeding that the parent’s interest in the parent-child relationship

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No. 2022AP652

is most jealously protected.” Brown Cnty. DHS v. Brenda B., 2011 WI 6, ¶34,
331 Wis. 2d 310, 795 N.W.2d 730. A parent who chooses to enter a no contest
plea during this phase is giving up valuable protections and must have sufficient
knowledge of the rights being waived by making the plea. Id.

¶13 To ensure that a parent’s plea is knowing, voluntary, and intelligent,
the trial court must engage the parent in a colloquy. Kenosha Cnty. DHS v.
Jodie W., 2006 WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845. The colloquy is
governed by WIS. STAT. § 48.422(7) and notions of due process. Brenda B., 331
Wis. 2d 310, ¶35. A colloquy helps ensure that a parent’s rights will not be
terminated precipitously, arbitrarily, or capriciously. See Waukesha Cnty. v.
Steven H., 2000 WI 28, ¶40, 233 Wis. 2d 344, 607 N.W.2d 607.

¶14 When a parent alleges that a colloquy failed to comply with WIS.
STAT. § 48.422 or another mandatory duty, we use the framework set forth in State
v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). See Oneida Cnty. DSS v.
Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122. Under
Bangert, “the parent 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. If a prima facie showing is made, the burden
then shifts to the State “to demonstrate by clear and convincing evidence that the
parent knowingly and intelligently waived the right to contest the allegations in the
petition.” Id.

¶15 As stated above, we previously concluded that A.G. made a prima
facie showing entitling him to an evidentiary hearing. See A.G. I,

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No. 2022AP652

No. 2021AP1476, ¶¶12, 21. The sole issue in this case is whether the State met its
burden at the remand hearing.

¶16 In meeting its burden under Bangert, the State “may rely ‘on the
totality of the evidence, much of which will be found outside the plea hearing
record.’” State v. Brown, 2006 WI 100, ¶40, 293 Wis. 2d 594, 716 N.W.2d 906
(citation omitted). The State may, for example, present the testimony of the parent
and trial counsel to establish the parent’s understanding. See id. The State may
also utilize a plea questionnaire, documentary evidence, recorded statements, and
transcripts of prior hearings to satisfy its burden. Id.

¶17 When determining whether the State met its burden, we accept the
circuit court’s findings of historical and evidentiary fact unless they are clearly
erroneous. State v. Hoppe, 2009 WI 41, ¶45, 317 Wis. 2d 161, 765 N.W.2d 794.
We independently determine whether those facts demonstrate that the parent’s
plea was knowing, intelligent, and voluntary. Id.

¶18 On appeal, A.G. renews his argument that his plea was not knowing,
intelligent, and voluntary because the court failed to establish that he understood
the potential dispositions at the plea hearing, and the State failed to prove that he
understood this information. See WIS. STAT. § 48.422(7)(a) (stating that the trial
court shall “determine that the admission is made voluntarily with understanding
of … the potential dispositions”); Therese S., 314 Wis. 2d 493, ¶16 (stating that a
trial court must inform a parent that it “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”).

¶19 In response, the State and GAL point to the transcript of the hearing
on the petition on June 1, 2020, which took place approximately ten months before

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No. 2022AP652

the plea hearing. The June 1, 2020 hearing transcript reflects that the circuit court
explained, along with other things, the potential dispositions to A.G., and A.G.
stated that he understood.

¶20 While there is no requirement as to what evidence the State presents
at a Bangert hearing, we conclude that a pre-plea transcript from approximately
ten months before the plea hearing standing alone is insufficient to establish by
clear and convincing evidence that A.G. understood the potential dispositions at
the time of his plea. At the remand hearing, the State did not present any
testimony or witnesses pertaining to A.G.’s knowledge and understanding at the
time of the plea. For example, the State did not call trial counsel to testify
regarding what he explained to A.G.4 Nor did the State introduce or point to any
documentary evidence, such as a plea questionnaire or notes from trial counsel.
Contrast with State v. Bollig, 2000 WI 6, ¶¶54-55, 232 Wis. 2d 561, 605 N.W.2d
199 (holding that a plea questionnaire coupled with a pre-hearing proceeding was
sufficient to establish the State’s burden to show by clear and convincing evidence
that the defendant was aware of the nature of the offense); State v. Taylor, 2013
WI 34, ¶¶35-38, 347 Wis. 2d 30, 829 N.W.2d 482 (holding that the record was
“replete with evidence” that the defendant was aware of the potential penalty when
the penalty was listed on the complaint, the information, and the plea
questionnaire, which the defendant signed, acknowledging that he had read and
understood the form).

4
We recognize that A.G. did not appear at the hearing; however, the State chose to
proceed on the transcripts as opposed to seeking an adjournment to secure A.G.’s presence.

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No. 2022AP652

¶21 In addition, the State did not introduce or point to any information in
the record establishing that A.G. had familiarity with the potential dispositional
outcomes due to a previous termination of parental rights case, or personal
characteristics, such as a college education, that might make him particularly
savvy regarding legal proceedings. Thus, we conclude that, under the particular
facts in this case, that a pre-plea transcript from approximately ten months prior to
the plea hearing was insufficient to establish A.G.’s understanding of the potential
dispositions at the time of the plea.5

¶22 Moreover, even if we assume that the record was sufficient for the
State to meet its burden on A.G.’s first claim, A.G. raises a second ground for plea
withdrawal. A.G. contends that the circuit court incorrectly advised him at the
plea hearing that there would need to be clear and convincing evidence at the
disposition for his parental rights to be terminated when in fact there is no burden
of proof. See WIS. STAT. § 48.426.

¶23 In response, the State again relies on the June 1, 2020 hearing, at
which the best interest standard was explained. This overlooks, however, that
A.G. was subsequently incorrectly advised at the plea hearing regarding the
burden of proof. We do not see how a transcript from an earlier hearing
establishes by clear and convincing evidence that A.G.’s plea was knowing,

5
The State and GAL also point to A.G.’s testimony at the dispositional hearing and
A.G.’s trial attorney’s argument at the dispositional hearing, which took place after the plea
hearing. A defendant’s understanding is measured at the time of the plea. See State v. Finley,
2016 WI 63, ¶44, 370 Wis. 2d 402, 882 N.W.2d 761; State v. Bangert, 131 Wis. 2d 246, 283, 389
N.W.2d 12 (1989); State v. Brown, 2006 WI 100, ¶40, 293 Wis. 2d 594, 716 N.W.2d 906 (stating
that the State may utilize “transcripts of prior hearings” to satisfy its burden).

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No. 2022AP652

intelligent, and voluntary when incorrect information was provided at a later plea
hearing.

¶24 Finally, the GAL suggests that any error was not prejudicial. The
GAL, however, does not cite any legal authority or develop an argument for the
proposition that we undergo a prejudice analysis in this context. As a result, we
decline to address this argument. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992).

¶25 Therefore, we conclude that the State failed to meet its burden at the
remand hearing by clear and convincing evidence to establish that A.G.’s plea was
knowing, voluntary, and intelligent. Accordingly, we reverse and remand to the
trial court to permit A.G. to withdraw his plea.

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

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

9