State v. N. H.

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 14, 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 No. 2022AP1945 Cir. Ct. No. 2021TP27

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

N. H.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
ELLEN R. BROSTROM and JOSEPH R. WALL, Judges. Affirmed in part;
reversed in part and cause remanded with directions.
No. 2022AP1945

¶1 WHITE, J.1 Nico appeals the order terminating his parental rights
to his son, Everett, and the order denying postdisposition relief.2 Nico argues that
his 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 during his plea
colloquy. We conclude that Nico’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 his plea was nonetheless entered knowingly
intelligently, and voluntarily.

¶2 Additionally, Nico argues that the circuit court’s analysis of
Everett’s wishes in its consideration of the statutory factors in the dispositional
phase of the TPR proceeding was an erroneous exercise of discretion. We
conclude that circuit court acted within its discretion in its considerations during
the dispositional phase. Therefore, we affirm the order terminating Nico’s
parental rights.

BACKGROUND

¶3 Everett was born prematurely in April 2019, and placed in the
Pediatric Intensive Care Unit (PICU). During his intensive care treatment, it was
determined he had cocaine, marijuana, and opiates in his system. At discharge

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 father and son. See WIS. STAT. RULE 809.86.

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No. 2022AP1945

from the hospital in May 2019, the Division of Milwaukee Child Protective
Services (DMCPS) took temporary physical custody of Everett, and an order for
temporary physical custody was entered by the circuit court. 3 Everett was placed
with a foster family, where he has remained through the pendency of the TPR
action.

¶4 The State filed the petition to terminate Nico’s parental rights to
Everett in January 2021. The petition alleged that there were two grounds for the
TPR: Everett remained a child in continuing need of protection or services
(CHIPS) pursuant to WIS. STAT. § 48.415(2); and that Nico failed to assume
parental responsibilities for Everett pursuant to § 48.415(6).4 At a hearing in
March 2021 after personal service and legal representation were established, the
circuit court explained the two phases of a TPR action: the grounds and the
disposition. The court noted that a difference between the two phases was that
there was no right to a jury trial in the dispositional phase. Further, the court
stated that in the dispositional phase, “[a]ll those same trial rights would rise up
again, so the State would have to prove by clear, convincing, and satisfactory
evidence that it is in [Everett’s] best interest that I terminate your rights.”

¶5 On February 1, 2022, Nico decided to enter a no contest plea to the
failure to assume parental responsibility ground and the State dismissed the

3
The Honorable Ellen R. Brostrom presided over the TPR proceedings and entered the
order terminating Nico’s parental rights. Multiple judges were involved in the proceedings prior
to the TPR petition and we refer to all of them as the circuit court, unless otherwise noted.
4
The State also petitioned to terminate Everett’s biological mother’s rights on the same
grounds. Everett’s mother separately appealed her case, this court affirmed the TPR, and
therefore, her parental rights are not at issue in this appeal. See State v. E.B., No. 2022AP1882,
unpublished slip op. (WI App Jan. 18, 2023). This decision focuses on the facts and the
proceedings as they relate to Nico.

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No. 2022AP1945

continuing CHIPS ground. We recite sections of the circuit court’s colloquy with
Nico, focusing on the contested issues.

THE COURT: You have an absolute right to a trial,
either to just me, the judge, or to a jury. Do you understand
that?

[NICO:] Yes, I do understand.

….

THE COURT: And it would be the State’s burden
to prove the grounds by clear, convincing, and satisfactory
evidence to a reasonable certainty. Do you understand
that?

[NICO:] Yes, I do understand.

THE COURT: And the State would try to do that
by calling witnesses to the stand, who would testify under
oath, and you would have the right to cross-examine
them…. You would also have the right to introduce your
own evidence and to use subpoenas to require witnesses to
come to court and testify for you…. You would also have
the right to testify, or you could remain silent, but silence
can be used against you because this is not a criminal case.
Are you aware of that as well?

[NICO:] Yes, I understand that.

….

THE COURT: Now, that does not mean that you’re
giving up your right to have a trial about whether or not it’s
in [Everett’s] best interest that the Court actually terminate
your parental rights. Do you understand that as well?

[NICO:] Yes, I do understand.

….

THE COURT: And at that—that’s what we call
disposition—I’m going to have to decide either, yes, it’s in
[Everett’s] best interest to terminate your rights and grant
the State’s petition, or no, it is not, and then I would
dismiss the State’s petition. Does that make sense?

[NICO:] Yes.

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No. 2022AP1945

¶6 The circuit court then accepted Nico’s no contest plea as being
knowing, intelligent, and voluntary on the ground of failure to assume parental
responsibility. The court conducted a similar colloquy with Everett’s mother, but
then returned to Nico to confirm that he understood that “at the contested
disposition hearing, there’s no right to a jury; you have all those same trial rights,
but it’s always just a trial to the judge.” Nico confirmed he understood.

¶7 The case proceeded to the State’s “prove up” of the ground for the
TPR and the dispositional phase of the proceedings, both of which occurred on
June 6, 2022. During the prove up section of the hearing, the case manager
testified that Nico had supervised weekly visitation with Everett during his three
years in out-of-home care, with an average of about four hours a week. During
visitation, the parents generally relied on the caregiver’s provisions of “food and
diapers and wipes.” Nico was not involved in Everett’s medical care, although he
did attend a dental appointment in October 2021. He did not provide financial
support. The circuit court concluded that the State provided “clear, convincing,
and satisfactory evidence to a reasonable certainty of the failure to assume ground
for each of the parents.”

¶8 The case then turned to the dispositional phase of the TPR
proceedings. The court heard testimony from Everett’s foster mother, the case
manager, Nico, Nico’s psychotherapist, and Everett’s mother. Here we note that
Nico’s argument is confined to the child’s wishes factor of the disposition, and we
focus our recitation to those facts relevant to that issue.

¶9 Everett’s foster mother testified that she had cared for Everett since
he left the PICU shortly after his birth in 2019, or approximately three years. She
and her husband were interested in adopting Everett. Everett calls her “Mama”

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No. 2022AP1945

and her husband “Daddy” and he is a full member of their family and extended
family.

¶10 The case manager returned to the witness stand. She testified that
Everett would turn to his foster mother for comfort and a hug or kiss when his
rambunctious behavior resulted in an “owie.” She testified that Everett appeared
bonded to the foster family and called them “mama” and “daddy.” She testified
that Everett has “struggled” with supervised visitation at times: “He doesn’t
always want to go”; “he has fun when he goes”; but he does not have a “father/son
relationship” with Nico. While the case manager acknowledged Everett was too
young to express his wishes about the TPR proceeding, the foster home is the only
home he has ever lived in and he views their house as his home. He states that
things in the house are “mine”; he moves freely and comfortably in the house; and
he calls his bedroom, “My room.”

¶11 Nico testified on his own behalf. He explained that he and Everett’s
mother moved in together when she found out she was pregnant and he was at the
hospital for the birth. He was unaware that Everett’s mother had a severe drug
addiction until Everett tested positive for substances at the hospital. He testified
that he regularly attended visitation, during which he fed Everett, changed his
diapers, and played on the floor with him. Further, Nico helped teach Everett how
to use the bathroom and Everett called him, “Dad.”

¶12 After closing arguments by the State, the guardian ad litem (GAL),
and the parents’ attorneys, the court summarized its thoughts on the case and its
considerations of the statutory factors. It reiterated that it was looking at the case
through Everett’s eyes, and its “standard today is what’s in [Everett’s] best
interest. And from [Everett’s] perspective the [foster family is] his family. He has

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No. 2022AP1945

been with them since he was released from the hospital. He has gone through
some really hard time” including withdrawal from drugs. The foster family was
there “to rock him, to feed him, to change him, to soothe him.” Again, the court
considered Everett’s perspective, stating, “he can’t tell me what he wants, but I—
I’m sure that he wants to stay where he is. He’s bonded with the [foster family];
he’s bonded with the other kids in that home.”

¶13 The court expressed uncertainty whether Everett had a substantial
relationship with any biological family members. The court stated it believed that
the foster family would “mitigate any harm severing those relationships will cause
because they’ve already demonstrated” this by maintaining contact with the
biological family of their three older adopted children. The court considered it
“very likely” that Everett “be adopted post-termination” by his foster parents, who
were “licensed, committed, ready, willing, and able.” Everett’s “age and health
are no barrier to adoption.” The court considered that Everett has been separated
from his parents “his whole life” and he “deserves stability.” The court stated that
Everett “deserves to stay, really in the only family and home that he knows.” The
court concluded that “all the statutory factors indicate it’s in [Everett’s] best
interest to terminate your parental rights.” The circuit court signed the order
terminating Nico’s parental rights on June 7, 2022.

¶14 Nico filed a postdisposition motion on December 29, 2022,
requesting an evidentiary hearing on his claim that his plea was not knowing,
intelligent, or voluntary; therefore, he moved for plea withdrawal.

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No. 2022AP1945

The postdisposition court held a hearing on the motion on January 30, 2023. 5 The
court stated, “I’ve always felt that there was no burden of proof or standard of
proof at a dispositional hearing: that it was simply best interests and the parties
would both present; nobody had the burden.” The postdisposition court reviewed
the transcripts from several hearings before the circuit court and heard oral
argument from the parties; however, there was no testimonial presentation of
evidence or witnesses.

¶15 The postdisposition court concluded that while the circuit court
incorrectly explained the burden of proof for the disposition during the initial
appearance, which occurred ten months before the no contest plea, it did not “put
any weight in the [c]ourt’s error…” The postdisposition court reviewed that
during the plea hearing, the circuit court correctly explained Nico’s rights and the
burden of proof for the grounds phase and twice expressed the best interests
standard for the disposition. The postdisposition court concluded that Nico failed
to make a prima facie showing that his no contest plea was not knowing,
intelligent and voluntary. It denied Nico’s postdisposition motion for plea
withdrawal.

¶16 Nico appeals both the order denying his postdisposition motion and
the order terminating his parental rights.

5
The Honorable Joseph Wall presided over Nico’s postdisposition hearing and entered
the order denying his motion for postdisposition relief. We refer to Judge Wall as the
postdisposition court.

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No. 2022AP1945

DISCUSSION

¶17 On appeal, first, Nico renews his argument from his postdisposition
motion that during the plea colloquy, the circuit court failed to properly explain
the statutory standard it would apply in the dispositional phase. Nico contends
that the postdisposition court erred when it denied his postdisposition motion
without an evidentiary hearing. We conclude that Nico is entitled to an
evidentiary hearing on this claim. Second, Nico contends that the circuit court
erroneously exercised its discretion in its analysis of the “child’s wishes” factor
when it considered the best interests of the child in the dispositional phase. We
conclude that the court acted within its discretion when it granted the TPR petition
and that its considerations of Everett’s wishes were not erroneous.

I. Plea withdrawal

¶18 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

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No. 2022AP1945

factor” in determining the disposition of a TPR petition. See WIS. STAT.
§ 48.426(2).

¶19 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
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.

¶20 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.

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No. 2022AP1945

¶21 In Nico’s postdisposition motion, he asserted that the circuit court
misstated the statutory standard during the plea colloquy.6 The record reflects that
this misstatement occurred when the court pronounced that there was “no right to
a jury trial in the second half, it’s just to me, the judge. All those same trial rights
would rise up again, the State would have to prove by clear, convincing, and
satisfactory evidence that it is in [Everett’s] best interest that I terminate your
rights.” Further, the circuit court reiterated this point when it confirmed with Nico
that he understood that in the second phase he would “have all those same trial
rights, but it’s always just a trial to the judge.” Nico argues that the circuit court
associated the “trial rights” with the State’s burden of proof. As the
postdisposition court points out, the circuit court also referenced the best interests
standard twice during the plea hearing. Nonetheless, we conclude that Nico’s
allegations satisfied the first prong of a Bangert motion—a prima facie showing of
a violation of statutory duties for plea withdrawal. See Brown, 293 Wis. 2d 594,
¶39.

6
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.

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No. 2022AP1945

¶22 Further, we conclude that Nico’s postdisposition motion satisfied the
second prong of a Bangert motion—that he “did not know or understand the
information that should have been provided at the plea hearing.” See Brown, 293
Wis. 2d 594, ¶39. Nico asserted in his postdisposition motion that he “did not
know or understand the rights he was waiving when he entered the plea.” He
further contends that there was nothing in the record to indicate that he had any
understanding of the burden of proof beyond what was explained to him by the
circuit court. We conclude that Nico’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.”)

¶23 We conclude that Nico has made a prima facie showing that his plea
was not knowing, intelligent, and voluntary, and he is entitled to an evidentiary
hearing on his claim. Therefore, we reverse the order denying his 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 Nico’s
motion to withdraw his plea. In this process, the State will have an opportunity in
the evidentiary hearing to present evidence relating to Nico’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: the child’s wishes

¶24 Nico’s second argument takes issue with the second phase of the
TPR proceedings—the dispositional phase. The decision to terminate parental
rights is within the discretion of the circuit court. See Gerald O. v. Susan R., 203

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No. 2022AP1945

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.

¶25 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
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.

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No. 2022AP1945

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.

¶26 Nico argues that the circuit court’s decision to terminate his parental
rights was erroneous because of the assumptions the court made about Everett’s
wishes with regard to the termination, the fourth factor under WIS. STAT.
§ 48.426(3). He contends that Everett was too young to express his wishes;
therefore, the court’s conclusion that Everett would want to stay where he is—
with the foster family—did not demonstrate rational decision making.

¶27 The State argues that the circuit court’s reasoning is supported by the
record, which reflects that the case manager testified about her specific
observations that Everett views the foster family’s residence as his home, referring
to objects in the house as “mine” and referring to his bedroom as “my room.” The
GAL argues that the circuit court acknowledged that Everett at three years old was
too young to express his wishes; however, the court drew a reasonable inference
that Everett would wish to stay in the only home he has know. The record reflects
that Everett had been placed with the foster family since he was two weeks old
and he called his foster parents “mama” and “daddy.”

¶28 When we review the circuit court’s considerations of the statutory
factors, we are ensuring that each factor has been considered, but it is within the
circuit court’s province to assign the appropriate weight. See Margaret H., 234
Wis. 2d 606, ¶¶29, 35. Further, we search the record to support the circuit court’s
decision making, not to discern support for alternative reasoning or outcomes. See
Lofthus v. Lofthus, 2004 WI App 65, ¶21, 270 Wis. 2d 515, 678 N.W.2d 393.
While the wishes of three-year-old children may be unclear because they do not

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No. 2022AP1945

have the language or opportunity to voice their opinions, here, we discern support
for the circuit court’s decision making in the record. The court’s conclusion was
not unreasonable.7 Therefore, this court concludes that the circuit court
considered the relevant facts under the proper standard of law and demonstrated
rational decision making when it ordered the termination of Nico’s parental rights.

CONCLUSION

¶29 For the reasons stated above, first, we conclude that the
postdisposition court erroneously denied Nico’s postdisposition motion for plea
withdrawal because he alleged a prima facie case for plea withdrawal. We reverse
this order and remand with directions to hold an evidentiary hearing on this claim.
Second, we conclude that the circuit court’s decision to order the TPR was not an
erroneous exercise of discretion and we affirm that order.

By the Court.—Termination order affirmed; postdisposition order
reversed and cause remanded with directions.

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

7
We note that the statutory factors must be considered in every involuntary TPR
disposition, regardless of the age of the child. That the wishes may be difficult to discern for
young children does not negate the court’s need to consider this factor based upon the facts and
inferences from facts in the record. Further, no single factor is dispositive to the disposition and
the weight assigned to each factor is within the discretion of the circuit court. See State v.
Margaret H., 2000 WI 42, ¶¶29, 35, 234 Wis. 2d 606, 610 N.W.2d 475.

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