State v. Y. P. V.

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.
March 21, 2023
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 Nos.
2022AP1935 Cir. Ct. Nos. 2020TP236
2020TP238
2022AP1936
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

APPEAL NO. 2022AP1935

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

Y. P. V.,

RESPONDENT-APPELLANT.
Nos. 2022AP1935
2022AP1936

APPEAL NO. 2022AP1936

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

Y. P. V.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Reversed and cause remanded with
directions.

¶1 WHITE, J.1 Ynez appeals the order terminating her parental rights
to her daughters, Miranda and Beatriz, and the order denying postdisposition
relief.2 Ynez argues that her no contest plea to the grounds for the termination of
parental rights (TPR) petition was not knowing, intelligent, and voluntary because
the circuit court set forth the wrong standard of law for the dispositional phase

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 mother, daughters, and foster mother. Further, although there were
separate TPR petitions for each daughter, the proceedings were consolidated and we refer to the
cases and pleas in the singular for ease of reading.

2
Nos. 2022AP1935
2022AP1936

during her plea colloquy. We conclude that Ynez’s postdisposition motion set
forth a prima facie case for plea withdrawal; accordingly, we reverse the order
denying the postdisposition motion. We remand with directions for the circuit
court to determine whether the State can prove her plea was nonetheless entered
knowingly, intelligently, and voluntarily.

¶2 Additionally, Ynez argues that the circuit court’s erroneous exercise
of discretion in the dispositional phase require reversal and remand for a new
dispositional hearing. Ynez contends that the court considered the factor of the
harm from severance under the wrong standard of law, assessing the harm from
separating the girls from their foster mother and not the harm from severance of
the legal relationship with Ynez. Further, Ynez asserts that the circuit court
incorrectly stated the time period for which the children were out her care, with
the court describing it as seventy-five months instead of thirty-eight and one-half
months. We agree that these errors require a new dispositional hearing.
Therefore, we reverse and remand with directions for the circuit court to hold a
new dispositional hearing.

BACKGROUND

¶3 In October 2020, the State filed petitions to terminate Ynez’s
parental rights to her daughters, Miranda, born in 2010, and Beatriz, born in 2011.3
The children were found to be children in need of protection or services (CHIPS)
in May 2019, with a dispositional order entered in November 2019. They were

3
The State also petitioned to terminate the parental rights of Beatriz’s unknown but
alleged father and Miranda’s unknown father. Those terminations were ultimately granted and
are not on appeal here. This decision focuses on the facts and the proceedings as they relate to
Ynez.

3
Nos. 2022AP1935
2022AP1936

detained by the Division of Milwaukee Child Protective Services (DMCPS)
throughout the pendency of the dispositional order in an out-of-home care
placement. In the TPR petition, the State alleged three grounds: continuing
CHIPS, failure to assume parental responsibility, and commission of a serious
felony against one of the person’s children, pursuant to WIS. STAT. § 48.415(2),
(6), and (9m).

¶4 Ynez’s contact with DMCPS began with a report of bruising on
Beatriz’s upper arm in December 2018, which was followed by an incident in
which Ynez allegedly burned Miranda’s forehead with a heated piece of
silverware in March 2019. Ynez was charged and convicted of felony child abuse
for recklessly causing great harm to Miranda. After serving her required prison
time in a Wisconsin state prison, Ynez was deported to Mexico, where she
remained throughout this case.

¶5 In January 2021, the State filed a motion for partial summary
judgment on the felony child abuse ground for the TPR. However, the State
agreed to withhold the summary judgment request in light of Ynez’s decision to
plead no contest to two of the grounds: continuing CHIPS and failure to assume
parental responsibility. Prior to accepting the plea, the court conducted a colloquy
with Ynez.4 We recite relevant excerpts:

[THE COURT:] Do you understand that by pleading no
contest, you are giving up the right to have the petitioner
prove there is a reason to involuntarily terminate your
parental rights?

4
The court proceedings on the TPR petitions took place over Zoom video conferencing
due to the Covid-19 pandemic. Ynez, whose primary language is Spanish, was assisted by sworn
interpreters throughout the proceedings.

4
Nos. 2022AP1935
2022AP1936

[YNEZ:] Yes, yes, no contest.

….

[THE COURT:] You are giving up your right to make the
State prove the facts in the petition are substantially true?

[YNEZ:] Yes.

[THE COURT:] And that the facts are clear, satisfactory
and convincing?

[YNEZ:] Yes.

¶6 Within that colloquy, the circuit court also addressed the second
phase as follows:

You are, in fact, keeping your right to fight against the
termination only as to the dispositional or best interest
phase of the proceedings.

….

You would have the right to force the petitioner or the State
to prove to a reasonable certainty that adoption serves the
best interest of your children and if they are not able to do
so, that the petition for termination of parental rights should
be dismissed and a different alternative would be pursued
instead of the termination of your parental rights.

¶7 After a thorough colloquy on February 12, 2021, the circuit court
accepted Ynez’s no contest plea, contingent on the State proving the grounds,
which then occurred after delays for reasons not relevant to this appeal, on January
28, 2022.

¶8 During the dispositional hearing, held on May 31, 2022, and June 1,
2022, the circuit court heard testimony from people connected to the case
including the case manager, the children’s foster mother, Ynez, and several
members of Ynez’s family in Mexico. The case manager testified the children had
been with their current foster placement, Trisha, since approximately December

5
Nos. 2022AP1935
2022AP1936

2019. The children had been in three or four short-term placements before Trisha
after they were detained by DMCPS in March 2019. Miranda was nine years old
and Beatriz was eight years old at the time they were detained; they were both
eleven years old at the time of the dispositional hearing, with Miranda turning
twelve in the following month. The case manager testified that the foster mother
is committed to adopting Beatriz and Miranda. Beatriz is particularly bonded to
Trisha, calling her “mom” or “mama” and they have a close relationship. Miranda
is also bonded to the foster placement, particularly Trisha’s daughter and mother.

¶9 The case manager testified that Trisha displayed a willingness to
facilitate the continuation of the relationship between the girls and Ynez. The
foster mother has made an effort to keep Ynez informed about what is going on
with the girls and encouraged virtual visitation, although there are language
barriers because Ynez speaks Spanish and is not fluent in English and Trisha
speaks English. Miranda and Beatriz speak both English and Spanish, although
their Spanish skills are not fluent.

¶10 The case manager believed that Miranda would be harmed by the
legal severance of the relationship, but it was not clear if Beatriz would be harmed.
Further, the case manager believed it would be harmful to Miranda and Beatriz to
be removed from their foster mother’s care. Miranda told the case manager and
her supervisor that she would be comfortable staying with her foster mother. She
would like to visit Mexico, but not live there. She expressed that she would like to
be adopted. Beatriz expressed that she was comfortable with her foster mother,
but the case manager did not specifically ask her about adoption. The case
manager testified that in-person visits had not happened since the children were
removed from their mother’s care.

6
Nos. 2022AP1935
2022AP1936

¶11 The foster mother testified that the girls call her Miss Trisha;
although in the beginning Beatriz called her mom. The girls were close with her
two biological daughters as well has her mother and father. She testified that she
was committed to maintaining a relationship between Ynez and the girls.

¶12 Ynez testified that she had a strong loving, mother-daughter
relationship with both of her daughters prior to their removal from her care, when
the girls were eight and nine. She generally had weekly virtual visitation with the
children and she sent letters to them regularly. Ynez stated that she expects to
continue to have contact and communication with the girls even if her parental
rights are terminated.

¶13 After closing arguments, the circuit court addressed its
considerations in deciding the disposition of the TPR petition. The court began
with an assessment that “[t]he children have been in out of home care since March
20th or March 18th of 2019 and that’s about [seventy-five] months according to
my calculations or three years and three months. That’s a significant amount of
time.” Turning to the statutory factors, the court concluded that there was “a
strong likelihood of adoption” and that the foster mother was “committed to
adopting the girls if they are available for adoption.” For the second factor, the
court concluded that there was “nothing about the age or health of the children that
would be a barrier to them being adopted.” Miranda was nine and Beatriz were
eight years old at the time of adoption; at the time of the hearing, Miranda was
about to turn twelve and Beatriz was eleven years old.

The next factor is whether the child has a substantial
relationship with her parents…. Both girls recognize their
mother.... They also recognize that [Trisha] has been
available for them and caring for them since they were
placed with her and [the foster mother] has been interested
in continuing the children’s contact with the mother

7
Nos. 2022AP1935
2022AP1936

including supervising visits. I find that [Beatriz] is bonded
to the foster parent and calls her mom. [Ynez] talks about
the link and she mentioned that it has not been broken. I
agree that the link between mother and children or child has
not been broken but it has been weakened over time, not
only because of the out of home placement but it has
weakened because of [Ynez’s] behavior when she had
custody of her children and when they were placed with
her.

As to [Miranda], … [she] recognizes her mother as her
mom and [Trisha] has been very appropriate and telling the
girls I am not your mom. I am Miss [Trisha]. She has been
consistent in trying to make sure that the children have
continued contact with their mother, including supervising
visits. [Miranda] wants to be adopted as was stated today
by the ongoing case manager two weeks ago for the first
time. [Ynez] spoke about the link with her daughter
[Miranda] and she mentioned that it’s not been broken as
with [Beatriz]. I find that the link has been substantially
weakened because of the time that the children have been
away from their mother and have frankly been relying on
another family to become very familiar with and become
bonded to. Now, I am not comparing [Trisha] to [Ynez].
What I am saying is that the reality is [Ynez] has not been
available to care for the children and has made decisions
that took her away from the girls and that has allowed them
to be or forced them to be in out of home placement for
over three year.

….

The State argued that it would harmful to remove the
children from [the foster mother] given the length of time
that the children have been with her and the relationship
they have and the children have built with [their foster
mother] and her family. I think it would be difficult for
them to have to make that change or make another change
in their lives. So even though I find that it is going to be
difficult for both [Beatriz] and [Miranda] to sever the legal
relationship that they have with their mother, there is a very
real opportunity for [Ynez] to continue her relationship
with her daughters because that’s something that [the foster
mother] will support and is advocating for but that’s going
to be up to [Ynez] should the children be adopted by [the
foster mother] whether she wants to have that relationship
and it sounds like that [the foster mother] is open to co-
parenting[.]

8
Nos. 2022AP1935
2022AP1936

¶14 The court continued its consideration of the factors with the wishes
of the children. The court stated that Beatriz “may not understand adoption,” but
she wants to stay with her foster mother. Miranda “would like to be adopted by
[Trisha].” The court concluded that both girls wanted to visit Mexico, but neither
wanted to live there. Instead, they felt at home in Milwaukee.

¶15 The court turned to the fifth factor, stating that “[t]he duration of
separation again, it’s been since March of 2019 and if my math is correct, that is
about [seventy-five] months.” Finally, the court addressed the sixth statutory
factor: “whether the children will be able to enter into a more permanent and
more stable and permanent family relationship as a result of the termination taking
into account the current conditions of the placement, the likelihood of future
placements and the result of the prior placements.” The court stated:

Both girls have had four prior foster care placements. They
don’t need to have to be moved anymore. They are not
going to return home and they should stay with [the foster
mother] and [the foster mother] is committed to making her
home a family home for them and their permanent home.…
The mother has not been able to or not chosen and not
demonstrated that she can safely care for the children given
her past abuse and understanding how her behavior has
impacted the children’s behaviors…. I find that both
[Miranda] and [Beatriz] would be able to have a more
stable and permanent family relationship as a result of
termination taking into account the current conditions of
the placement, their prior placements and considering this
evidence in light of the best interest of the child standard[.]

¶16 Finally, the circuit court concluded that “as a matter of law that the
termination of [Ynez’s] parental rights as to [Miranda] and [Beatriz] have been
proven by clear and convincing and satisfactory evidence.” The court found “as to
both children that it is in the best interest of [Miranda] and [Beatriz] that their
parental rights are terminated and I will transfer custody and legal placement of

9
Nos. 2022AP1935
2022AP1936

the children to DMCPS for purposes of adoption.” The court signed the
termination order on June 1, 2022.

¶17 In December 2022, Ynez moved for postdisposition relief, arguing
that her plea had not been knowingly, intelligently, and voluntarily made. The
circuit court held a hearing on the motion on January 10, 2023; however, no
evidence or witness testimony was presented. The court denied the motion,
concluding that Ynez failed to make a prima facie case for plea withdrawal and
denied the motion to vacate the no contest plea. The court further explained:

I’m satisfied that the [c]ourt did not violate any of its
mandatory duties. As pointed out by the State, the [c]ourt
mentioned the issue of best interest and the [c]ourt only
informed the mother that in order to determine best interest
that it would require the State to do so by clear and
convincing evidence, I’m sorry, a reasonable certainty that
adoption would serve the best interest of her children. The
[c]ourt in its findings at the dispositional stage found that
the State proved that adoption was in the child’s best
interest by clear and convincing evidence. Also I’m
satisfied based on the record that [Ynez’s] decision was
voluntarily made and well-informed.

¶18 Ynez now appeals both the order terminating her parental rights and
the order denying her motion for postdisposition plea withdrawal.

DISCUSSION

¶19 Ynez argues first that the circuit court informed her of the wrong
statutory standard for the dispositional hearing during the plea colloquy on the
grounds for the TPR. She asserts that she had made a prima facie case for plea
withdrawal; therefore, she is entitled to an evidentiary hearing to determine
whether her plea was knowingly, intelligently, and voluntarily made. Second,
Ynez contends that the circuit court erroneously exercised its discretion in its
consideration of the third factor in WIS. STAT. § 48.426(3), by considering the

10
Nos. 2022AP1935
2022AP1936

harm to the children in severing the relationship with the foster family, not the
harm in severing the legal relationship with Ynez. Further, she argues that the
court overstated the duration of separation by about double the actual time—
assessing seventy-five months instead of thirty-eight and one-half months.

I. Plea withdrawal

¶20 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. “Wisconsin law requires the
circuit court to undertake a personal colloquy with the defendant in accordance
with WIS. STAT. § 48.422(7).” Jodie W., 293 Wis. 2d 530, ¶25. Within that
colloquy, the circuit court must “at the very least … inform the parent that at the
second step of the process, the court 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.” Oneida Cnty. DSS v. Therese S., 2008
WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122. For that explanation to be
“meaningful to the parent, the parent must be informed of the statutory standard
the court will apply at the second stage.” Id. The statutory standard for the
dispositional phase is the best interests of the child, which “shall be the prevailing
factor” in determining the disposition of a TPR petition. See WIS. STAT.
§ 48.426(2).

¶21 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
circuit court violated its mandatory duties and must allege the parent did not know

11
Nos. 2022AP1935
2022AP1936

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. 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,” during which 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., ¶40.

¶22 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 independently. Therese S., 314 Wis. 2d 493, ¶7.

¶23 In Ynez’s postdisposition motion, she asserted that the circuit court
misstated the statutory standard during the plea colloquy.5 The record reflects that
the court misstated the statutory standard, as shown here:

5
We note that recent unpublished TPR cases have discussed the issue of misstatement of
the standard of law or burden of proof in the dispositional phase. In State v. T.A.D.S.,
No 2018AP1873, unpublished slip op. (WI App June 18, 2019), the circuit court misstated the
burden, assigning a burden to the State at disposition—however, that court also told the parent
that best interests was the prevailing factor. This court concluded that the misstatement was
irrelevant in the context of the entire record because the importance of the best interests factor
was explained to the parent. In contrast, in State v. A.G., No. 2021AP1476, unpublished slip op.
(WI App Feb. 15, 2022), the circuit court misstated the burden and this court remanded for an
evidentiary hearing on the parent’s prima facie case for plea withdrawal. There, we differentiated
the facts and explained that “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.” Id., ¶20. We note that after additional proceedings, State v. A.G., No. 2022AP652,
unpublished slip op. (WI App July 12, 2022) has been appealed to the Wisconsin Supreme Court.
We consider this case to be akin to A.G. and Oneida Cnty. DSS v. Therese S., 2008 WI App 159,
314 Wis. 2d 493, 762 N.W.2d 122, not T.A.D.S. In Therese S., this court concluded that “the
parent must be informed of the statutory standard the court will apply at the second stage” of TPR
proceedings. Id., ¶16.

12
Nos. 2022AP1935
2022AP1936

You would have the right to force the petitioner or the State
to prove to a reasonable certainty that adoption serves the
best interest of your children and if they are not able to do
so, that the petition for termination of parental rights should
be dismissed and a different alternative would be pursued
instead of the termination of your parental rights.

The statutory standard does not hold the State to a burden of proof nor does it have
a standard of reasonable certainty. To have informed consent to enter into the no
contest plea, a parent has a right to know the standard of law in the dispositional
phase. See Therese S., 314 Wis. 2d 493, ¶16. We conclude that Ynez’s
allegations satisfied the first prong of a Bangert motion—a prima facie showing of
a violation of statutory duties shown in passages in the plea hearing transcript. See
Brown, 293 Wis. 2d 594, ¶39.

¶24 Further, we conclude that Ynez’s postdisposition motion satisfied
the second prong of a Bangert motion—that she “did not know or understand the
information that should have been provided at the plea hearing.” See Brown, 293
Wis. 2d 594, ¶39. Ynez asserted in her postdisposition motion that she was
unaware that the circuit court, pursuant to statute, would consider “what was in the
best interests of [Miranda] and [Beatriz] at disposition when determining whether
or not to terminate her parental rights, as opposed to holding the State [to] a higher
burden of proving, to a reasonable certainty, adoption served [Miranda and
Beatriz’s] best interest.” Ynez asserted that she was “unaware of the proper
standard because the circuit court misadvised her of that standard at the no contest
plea hearing.” We conclude that Ynez’s allegation is sufficient to raise a question
of fact. See State v. Hampton, 2004 WI 107, ¶57, 274 Wis. 2d 379, 683 N.W.2d
14 (“The allegation that the defendant did not understand is, admittedly,
conclusory; but the allegation raises a question of fact and perhaps law that
requires resolution.”).

13
Nos. 2022AP1935
2022AP1936

¶25 We conclude that Ynez has made a prima facie showing that her plea
was not knowing, intelligent, and voluntary, and she is entitled to an evidentiary
hearing on her claim. Therefore, we reverse the order denying her postdisposition
motion and remand for an evidentiary hearing. We note, however, that we are not
determining whether the circuit court should ultimately grant or deny Ynez’s
motion to withdraw her plea. In this process, the State will have an opportunity in
the evidentiary hearing to present evidence relating to Ynez’s knowledge and
understanding of the statutory standard that applies at disposition. The entire
record may be considered in this hearing. See Brown, 293 Wis. 2d 594, ¶40.

II. Best interests of the child factors

¶26 Ynez’s second argument challenges the court’s decision in the
dispositional phase of TPR proceedings. The decision to terminate parental rights
is within the discretion of the circuit court. See Gerald O. v. Susan R., 203
Wis. 2d 148, 152, 551 N.W.2d 855 (Ct. App. 1996). We will sustain a circuit
court’s discretionary decision unless the court erroneously exercised its discretion.
WIS. STAT. § 805.17(2). A circuit court properly exercises its discretion when it
examines the relevant facts, applies a proper standard of law, and using a
demonstrated rational process reaches a conclusion that a reasonable judge could
reach. Dane County DHS v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828
N.W.2d 198.

¶27 In the dispositional phase, the circuit court decides whether the
evidence warrants the termination of parental rights and if the termination is in the
best interests of the child. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶23, 246
Wis. 2d 1, 629 N.W.2d 768. “During this step, the best interests of the child are
paramount.” Id.; see WIS. STAT. § 48.426(2). When determining whether a TPR

14
Nos. 2022AP1935
2022AP1936

is in a child’s best interests, the circuit court “shall consider,” but is not limited to,
the following six factors:

(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.

Sec. 48.426(3). We defer to the circuit court’s determination of the proper weight
of each factor when the court properly examines each factor on the record. State
v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475.

¶28 Ynez argues that the circuit court erroneously exercised its discretion
in its consideration of the third factor, regarding the “substantial relationship” and
“harm to the child.” She contends that the circuit court considered the harm in
severing the relationship between the children and their foster mother, not the
relationship between the children and Ynez. She argues that the circuit court
considerations were made with the wrong standard of law in mind.

¶29 Although the circuit court expressly stated it was “not comparing
[Trisha] to [Ynez],” the record reflects that the children’s substantial relationship
to Ynez was contrasted to the foster mother throughout the court’s considerations.

15
Nos. 2022AP1935
2022AP1936

The court noted that the girls recognized their mother; however it then noted that
the girls recognized that their foster mother had “been available for them and
caring for them since they were placed with her[.]” The court discussed that the
girls were bonded with their foster mother and her family. It also discussed that
the bond between Ynez and her daughters was weakened, because “the reality is
[Ynez] has not been available to care for the children and has made decisions that
took her away from the girls and that has allowed them to be or forced them to be
in out of home placement for over three years.”

¶30 The circuit court’s considerations of the girls’ relationship with their
mother was shown in stark contrast with the foster mother. When considering the
best interests of the child, the circuit court may consider additional facts and
factors outside of the six required factors. See Sheboygan Cnty. v. Julie A.B.,
2002 WI 95, ¶29, 255 Wis. 2d 170, 648 N.W.2d 402. Therefore, it is not improper
to consider any bonding with the foster mother; however, the statutes require the
court to consider the substantial relationship with biological parents and family,
including “the child’s emotional and psychological connections to the child’s birth
family.” Margaret H., 234 Wis. 2d 606, ¶19.

¶31 However, the circuit court considered the harms the children would
suffer if they were separated from their foster mother, stating “it would be difficult
for them to have to make that change or make another change in their lives.” The
court’s focus here was not on the proper standard of law—the risk of harm from
severing the children’s legal relationship with their mother. See WIS. STAT.
§ 48.426(3)(c). The court concluded that it would be difficult for the girls to sever
the legal relationship with Ynez; nevertheless, it focused on a possible
continuation of a “co-parenting” relationship with the foster mother. It is true that
the court may give “due weight to an adoptive parent’s stated intent to continue

16
Nos. 2022AP1935
2022AP1936

visitation with family members.” Margaret H., 234 Wis. 2d 606, ¶29. However,
such a promise is “legally unenforceable.” Id., ¶30. During the dispositional
hearing, “[t]he facts of record should influence the result” of the inquiry into the
best interests of the child. Julie A.B., 255 Wis. 2d 170, ¶42. Here, the facts of
record show that the foster mother expressed a willingness to continue a
relationship. However, the facts of record also show a considerable geographic
distance including an international border, a language barrier, and immigration
concerns that prevent Ynez from seeking visitation in Wisconsin. We do not
doubt the foster mother’s sincerity or intent; however, the court’s findings are not
based on the facts of record.

¶32 The GAL asserts that the circuit court’s comments on the children’s
bond to their foster mother should be considered in the context of multiple factors,
specifically the sixth factor. Similarly, the State argues that the court need not
discuss discrete facts to consider each factor and that the children’s bond to the
foster mother could be considered in multiple factors. We again appreciate that
the children are bonded to and cared for by their foster mother. As our supreme
court stated, “[t]he decision whether to terminate a parent’s rights to a child can be
one of the most wrenching and agonizing in the law.” Julie A.B., 255 Wis. 2d
170, ¶29. The legislature crafted the statutory “factors that give contour” to the
best interests of the child standard and “serve to guide courts in gauging whether
termination is the appropriate disposition.” Margaret H., 234 Wis. 2d 606, ¶34.
The appellate court will not attempt to weigh those considerations; however, “the
record should reflect adequate consideration of and weight to each factor” by the
circuit court. Id., ¶35. We conclude that the court’s consideration of the third
factor did not reflect the proper standard of law and did not demonstrate rational

17
Nos. 2022AP1935
2022AP1936

decision making based upon that the facts of record. See Julie A.B., 255 Wis. 2d
170, ¶43.

¶33 Additionally, Ynez argues that the circuit court misstated the length
of separation between Ynez and her daughters, stating twice that it calculated
seventy-five months of separation, calling it “a significant amount of time.” The
actual duration of separation was approximately thirty-eight and one-half months.
The circuit court’s discretionary decision must be based on facts of record. Id.,
¶42. The court repeatedly correctly stated the number of years of separation as
three. While the court’s misstatement on this issue alone would not support
reversing the dispositional order, in the context of the facts and circumstances in
the record to support the court’s determination, it undermines the reasonableness
of the court’s decision making.

CONCLUSION

¶34 For the reasons stated above, this court reverses the order denying
postdisposition relief. Ynez made a prima facie showing for plea withdrawal and
is entitled to an evidentiary hearing. Therefore, we remand with directions to hold
an evidentiary hearing to determine whether Ynez’s no contest plea to the grounds
was entered knowingly, intelligently, and voluntarily.

¶35 We conclude that the circuit court failed to consider the proper
standard of law and did not demonstrate rational decision making in the
dispositional phase. We reverse the order terminating Ynez’s parental rights and
we remand for a new dispositional hearing, regardless of the outcome of the
evidentiary hearing to determine if Ynez is allowed to withdraw her plea. In that
dispositional hearing, “the court must explore the child’s best interests and then

18
Nos. 2022AP1935
2022AP1936

determine whether maintaining the parent’s rights serves the child’s best
interests.” See id., ¶38. There is no burden of proof for the State at disposition.

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

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

19