State v. B. W.

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 12, 2023
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. 2022AP1329 Cir. Ct. No. 2021TP102

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

B.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.
No. 2022AP1329

¶1 DONALD, P.J.1 B.W. appeals an order of the circuit court
terminating his parental rights to his son, Bob.2 On appeal, B.W. contends that he
is entitled to plea withdrawal because the circuit court failed to ensure that he
understood the correct standard the court would rely on at the dispositional
hearing. In addition, B.W. contends that he is entitled to a new dispositional
hearing because the circuit court erroneously exercised its discretion in finding
that the termination of B.W.’s parental rights was in Bob’s best interests. For the
reasons discussed below, I affirm.

BACKGROUND

¶2 On May 14, 2021, the State filed a petition to terminate B.W.’s
parental rights to Bob. The petition alleged that Bob was a child in continuing
need of protection or services (continuing CHIPS), and that B.W. had failed to
assume parental responsibility.

¶3 Relevant to this appeal, on June 28, 2021, the circuit court held an
adjourned initial appearance on the petition. During the hearing, the circuit court
explained B.W.’s rights during the grounds phase and his rights during the
dispositional phase. In particular, with regard to the dispositional phase, the court
advised B.W. that:

So assuming for purposes of this explanation that it
is found there is a legal reason or a ground to terminate
your parental rights, as I said, then we would move to the
second half, where the court would have to decide whether

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
B.W. and his son share the same initials. I use the pseudonym “Bob” to refer to B.W.’s
son for ease of reading.

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No. 2022AP1329

that’s actually in [Bob’s] best interest. Again, you could
have a trial about that if you disagree.

Now, there’s no right to a jury trial in the second
half. It’s always just a trial to the judge, but all those same
trial rights would rise up again. So it’s the State that would
have to prove by clear, convincing, and satisfactory
evidence that it’s in [Bob’s] best interest that the court
terminate your parental rights.

¶4 On March 2, 2022, B.W. entered a no contest plea to the continuing
CHIPS ground. During the hearing, the following exchange took place:

THE COURT: Now, you understand that nobody can force
you to plead no contest to the grounds phase in this case,
right?

B.W.: Yes, ma’am.

THE COURT: You have an absolute [sic] to a trial. It
could be a jury trial which we have set next week, or it
could be a trial just to the Judge. Do you understand that?

B.W.: Yes, ma’am.

THE COURT: If you go forward with the jury trial, it’s a
12-person jury. And 10 out of 12 have to agree in order to
reach a decision. Does that make sense?

B.W.: Yes, ma’am.

THE COURT: But either way, it’s the State’s burden to
prove by clear, convincing, and satisfactory evidence to a
reasonable certainty that the grounds exist. And the State
would try to do that by calling witnesses to the stand. They
would testify under oath. You would have a right to cross-
examine them, and the right to introduce your own
evidence. The right to use subpoenas to require witnesses
to come to court and testify for you. Also the right to
testify yourself or remain silent knowing silence can be
used against you. Do you understand that by pleading no
contest you’re giving up all those trial rights to the first half
of the case?

B.W.: Yes, ma’am.

THE COURT: Now, that does not mean you’re giving up
your trial rights to the second half of the case. And that’s
what we call disposition. And at that hearing, the [c]ourt

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No. 2022AP1329

would have to decide if it’s in the child’s best interest to
actually terminate your parental rights. Does that make
sense?

B.W.: Yes, ma’am.

THE COURT: And at all those same trial rights then you
would have again [sic] in that second half, it’s just a trial to
the Judge in that second half. Does that match your
understanding?

B.W.: Yes.

¶5 After explaining the specific elements of the continuing CHIPS
ground, the circuit court then stated:

THE COURT: Now, assuming I accept your no contest
plea as knowing, intelligent, and voluntary, I will then take
some brief testimony to make sure there’s a[] factual basis
for it. And then by statute I will be required to find you
unfit as a parent as to [Bob]. Do you understand I’ll have
to make that finding?

B.W.: Yes.

THE COURT: However, if I do not terminate your
parental rights, if I do not find that to be in [Bob’s] best
interest, the termination of parental rights petition will be
dismissed, and that unfitness finding will be reversed or
vacated, okay?

B.W.: Yes, ma’am.

THE COURT: Now, at that second half of the case, the
disposition, I basically have two choices. Either I find it’s
in [Bob’s] best interest to terminate your parental rights,
and I do so. Or I do not find that, and I dismiss the TPR
petition. Does that make sense?

B.W.: Yes, ma’am.

¶6 At the dispositional hearing, testimony was presented from D.D., the
proposed adoptive resource who shares a child with B.W. D.D. testified that Bob
had been living with her for a little over two years and she planned to adopt Bob if
the court ordered termination of B.W.’s parental rights. She further stated that if

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No. 2022AP1329

B.W.’s rights were terminated, she expected Bob to continue to have contact with
B.W. Testimony was also presented from two cases managers, a program
manager for supervised visitation, one of B.W.’s family members, and B.W.

¶7 On April 13, 2022, after the completion of evidence and argument,
the court found that it was in Bob’s best interests to terminate B.W.’s parental
rights.

¶8 B.W. filed a post-disposition motion to withdraw his no contest plea.
B.W. alleged that his plea was not knowing, intelligent, and voluntary because the
circuit court improperly explained the statutory standard it would apply at the
dispositional hearing.

¶9 At a hearing on January 18, 2023, the circuit court denied B.W.’s
motion without an evidentiary hearing.3 The court found that B.W. failed to make
a prima facie case that there was a defect in the plea colloquy. This appeal
follows. Additional relevant facts will be discussed below.

DISCUSSION

¶10 On appeal, B.W. contends that he is entitled to plea withdrawal
because the circuit court failed to ensure that he understood the correct standard
the court would rely on at the dispositional hearing. In addition, B.W. contends
that he is entitled to a new dispositional hearing because the circuit court
erroneously exercised its discretion in finding that the termination of B.W.’s
parental rights was in Bob’s best interests. I address each issue in turn.

The Honorable Ellen R. Brostrom presided over B.W.’s plea and the dispositional
3

hearing. The Honorable Joseph R. Wall presided over the post-disposition motion hearing.

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No. 2022AP1329

I. Plea Withdrawal

¶11 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 Oneida Cnty. DSS v. Therese S., 2008
WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122. 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 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.

¶12 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[.]” Brown, 293 Wis. 2d 594, ¶40. At the evidentiary hearing,
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 colloquy.” Id.

¶13 Whether a parent has presented a prima facie case by pointing to a
deficiency 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 de novo. Therese S., 314 Wis. 2d 493, ¶7.

¶14 At issue in this case is the first step of the Bangert analysis. B.W.
contends that he has made a prima facie showing entitling him to an evidentiary
hearing. In response, the State and Guardian ad Litem (GAL) contend that B.W.
failed to make a prima facie showing that the court violated its mandatory duties
when it accepted B.W.’s plea. I agree with the State and GAL.

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No. 2022AP1329

¶15 As a preliminary matter, pursuant to WIS. STAT. § 48.426(2), the
“best interests of the child shall be the prevailing factor considered by the court in
determining the disposition” in a termination of parental rights case. The plain
language of the statute does not set a burden of proof.

¶16 B.W. contends that the circuit court here incorrectly informed him at
the dispositional hearing that “the State would have to demonstrate by ‘clear,
convincing and satisfactory evidence to a reasonable certainty’ that termination of
B.W.’s rights was appropriate.” While it is true that B.W. was misadvised during
the adjourned initial appearance on the petition regarding the standard at a
dispositional hearing, the circuit court did not misadvise B.W. at the plea hearing.

¶17 At the plea hearing, the circuit court stated that:

THE COURT: Now, that does not mean you’re giving up
your trial rights to the second half of the case. And that’s
what we call disposition. And at that hearing, the [c]ourt
would have to decide if it’s in the child’s best interest to
actually terminate your parental rights. Does that make
sense?

B.W.: Yes, ma’am.

THE COURT: And at all those same trial rights then you
would have again [sic] in that second half, it’s just a trial to
the Judge in that second half. Does that match your
understanding?

B.W.: Yes.

(Emphasis added.) Subsequently, the court stated:

THE COURT: Now, assuming I accept your no contest
plea as knowing, intelligent, and voluntary, I will then take
some brief testimony to make sure there’s a[] factual basis
for it. And then by statute I will be required to find you
unfit as a parent as to [Bob]. Do you understand I’ll have
to make that finding?

B.W.: Yes.

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No. 2022AP1329

THE COURT: However, if I do not terminate your
parental rights, if I do not find that to be in [Bob’s] best
interest, the termination of parental rights petition will be
dismissed, and that unfitness finding will be reversed or
vacated, okay?

B.W.: Yes, ma’am.

THE COURT: Now, at that second half of the case, the
disposition, I basically have two choices. Either I find it’s
in [Bob’s] best interest to terminate your parental rights,
and I do so. Or I do not find that, and I dismiss the TPR
petition. Does that make sense?

B.W.: Yes, ma’am.

(Emphasis added.) Thus, the record reflects that the circuit court did not advise
B.W. during the plea hearing that the State would have to demonstrate by clear,
convincing, and satisfactory evidence that termination of B.W.’s rights was
appropriate at the dispositional hearing. Rather, the circuit court simply advised
B.W. that the court would have to decide whether it was in the child’s best interest
to terminate B.W.’s rights. This complies with the statutory requirement set forth
in WIS. STAT. § 48.426(2).

¶18 In support of his argument, B.W. points to the circuit court’s
discussion of the grounds phase during the plea colloquy:

THE COURT: But either way, it’s the State’s burden to
prove by clear, convincing, and satisfactory evidence to a
reasonable certainty that the grounds exist. And the State
would try to do that by calling witnesses to the stand. They
would testify under oath. You would have a right to cross-
examine them, and the right to introduce your own
evidence. The right to use subpoenas to require witnesses
to come to court and testify for you. Also the right to
testify yourself or remain silent knowing silence can be
used against you. Do you understand that by pleading no
contest you’re giving up all those trial rights to the first half
of the case?

B.W.: Yes, ma’am.

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No. 2022AP1329

(Emphasis added.) B.W. then notes that the court later stated that “all those same
trial rights then you would have again [sic] in that second half.”

¶19 At no point, however, did the circuit court describe the State’s
burden in the grounds phase as a “right.” The court stated that B.W. “would have
a right to cross-examine [witnesses],” “the right to introduce your own evidence,”
“the right to use subpoenas,” and “the right to testify yourself or remain silent.”
As a result, based on the record, I am not persuaded that the circuit court
misadvised B.W. during the plea colloquy regarding the standard that would be
applied at the dispositional hearing.

¶20 B.W. also relies on State v. A.G. (A.G. I), No. 2021AP1476,
unpublished slip op. (WI App Feb. 15, 2022), where this court remanded for an
evidentiary hearing in part because the circuit court improperly explained the
standard that would apply at the dispositional hearing.4 A.G. I, however, is
distinguishable. In A.G. I, the circuit court expressly informed the parent that he
had a “whole bunch” of rights in the grounds phase including “the right to force
the State to prove the grounds by clear, convincing, and satisfactory evidence to a
reasonable certainty” and later told the parent that he would “have all those same

4
After State v. A.G. (A.G. I), No. 2021AP1476, unpublished slip op. (WI App Feb. 15,
2022), was remanded for an evidentiary hearing, the case returned to this court and plea
withdrawal was granted. See State v. A.G. (A.G. II), 2022AP652, unpublished slip op. (WI App
July 12, 2022). Subsequently, while B.W.’s appeal was pending, the supreme court granted
review in A.G. II, and this court stayed B.W.’s appeal. After the supreme court decision in
A.G. II was released, see id., 2023 WI 61, 408 Wis. 2d 413, 992 N.W.2d 75, this court ordered
the parties to address what, if any, impact the supreme court decision had on this case. Based on
my review of the supreme court decision and the supplemental briefs filed in this matter, I
conclude that the supreme court decision is not relevant as it does not resolve the issue presented
in this case. The lead opinion assumed, but did not decide, that the parent established a prima
facie case. See id., ¶¶21, 32 n.5. Accordingly, because this case analyzes whether B.W. has
established a prima facie case, I do not address A.G. II further and focus instead on A.G. I.

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No. 2022AP1329

trial rights today for that second half.” See id., ¶17. In contrast, here, as stated
above, the circuit court never referred to the clear and convincing standard as a
“trial right.” Accordingly, I do not find B.W.’s reliance on A.G. I persuasive.

¶21 Therefore, I agree with the circuit court that B.W. failed to meet his
prima facie burden and is not entitled to an evidentiary hearing.

II. Dispositional Hearing

¶22 A circuit court’s decision to terminate a parent’s rights is
discretionary. Gerald O. v. Cindy R., 203 Wis. 2d 148, 152, 551 N.W.2d 855
(Ct. App. 1996). “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 Cnty. DHS v. Mable K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828
N.W.2d 198.

¶23 When deciding whether termination is warranted, a circuit court
“shall consider,” but is not limited to, the following 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

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No. 2022AP1329

termination, taking into account the conditions of the
child’s current placement, the likelihood of future
placements and the results of prior placements.

WIS. STAT. § 48.426(3).

¶24 B.W. contends that the circuit court “inadequately considered
whether severance of [B.W.’s and Bob’s] relationship would be harmful” at the
dispositional hearing.

¶25 At the dispositional hearing, the circuit court discussed D.D.’s
testimony that she would continue to allow B.W. to have contact with Bob if
B.W.’s parental rights were terminated. The court stated:

And given that you and [D.D.] have a child in common,
you guys already coparent, I’m trusting that you guys will
continue to do so. And as you continue with your stability
and sobriety, the further you get into that, the safer you’ll
be for overnight visits, for really meaningfully coparenting
even if the legal relationship is severed, and I found
[D.D.’s] testimony to be credible that she would do that.

Later in the court’s remarks, the court stated that Bob had “a substantial
relationship” with B.W. The court, however, stated that any harm from severing
the legal relationship “will be mitigated by the coparenting circumstances … just
described.”

¶26 B.W. argues that the circuit court failed to consider that D.D.’s
testimony that she would allow for continued contact was an unenforceable
promise and did not address the impact if the contact were to stop.

¶27 As B.W. acknowledges, in State v. Margaret H., 2000 WI 42, ¶29,
234 Wis. 2d 606, 610 N.W.2d 475, our supreme court specifically stated that a
circuit court may consider an adoptive resource’s promise to continue to allow
visitation. Margaret H., however, does not impose any requirement that a circuit

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No. 2022AP1329

court specifically declare on the record that the promise is unenforceable. Rather,
Margaret H. only states that if the circuit court considers such a promise, the court
needs to “[bear] in mind that such promises are legally unenforceable once the
termination and subsequent adoption are complete.” Id., ¶30. B.W. does not
identify any language in the record indicating that the circuit court incorrectly
believed that D.D.’s promise was legally enforceable.

¶28 In addition, B.W. contends that the circuit court mischaracterized
what would happen after termination as “co[]parenting.” B.W. observes that the
termination of parental rights results in “a legal severance of the relationship” and
a parent does not have any authority to make any parental decisions. The record,
however, does not reflect that the court was using the term “coparenting” in the
legal sense. The court specifically referenced severing the legal relationship.
Thus, I reject B.W.’s arguments and conclude that the circuit court properly
exercised its discretion at the dispositional hearing.

¶29 Therefore, in sum, for all of the reasons stated above, I affirm.

By the Court.—Order affirmed.

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

12