COURT OF APPEALS
DATED AND FILED
July 8, 2010
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat.
§ 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
In re the
termination of parental rights to Na'Keyshia C., a person under the age of
Department of Human Services,
from orders of the circuit court for Dane County: John C.
Albert, Judge. Affirmed.
¶1 HIGGINBOTHAM, J. Brittany W. appeals orders terminating her
parental rights to her daughter, Na’Keyshia C., and denying her
post-termination motion to withdraw her plea of no contest as to grounds for
contends that the circuit court erred when it determined that her no-contest
plea was made knowingly, intelligently, and voluntarily because the court’s
plea colloquy was inadequate and Brittany
did not understand the direct consequences of her plea. Brittany
further argues that, because her plea was not actually knowing, intelligent and
voluntary, plea withdrawal is necessary to prevent a manifest injustice. We reject these arguments and affirm.
¶2 Dane County filed a petition to terminate Brittany’s parental rights to her daughter, Na’Keyshia,
based on Brittany’s
alleged failure to meet the conditions for return in an order finding Na’Keyshia
to be a child in need of protection or services (CHIPS). In alleging Brittany
had failed to meet the conditions for return, the petition asserted that Brittany had, among
other things, failed to maintain a safe, stable home; failed to secure a legal
source of income; and failed to abstain from the use of illegal drugs. Brittany
entered a plea of no contest to the allegations in the petition and was
consequently found to be an unfit parent.
The court engaged in a plea colloquy with Brittany,
was then examined on the record by the guardian ad litem, the County’s
assistant corporation counsel Mr. Rehfeldt and by her trial attorney. Details from this proceeding are provided
later in this opinion.
parental rights were terminated at a subsequent disposition hearing. Following a timely appeal, we remanded to the
circuit court to permit Brittany
to file a postdisposition motion seeking withdrawal of her plea of no contest
to the alleged grounds to terminate her parental rights. Dane County Dep’t of Human Servs. v.
Brittany W., No. 2009AP2778, unpublished order (January 11, 2010). An
evidentiary hearing was held on the motion and testimony taken from Brittany and trial
counsel. The court denied Brittany’s
¶4 On appeal, Brittany
contends that her no-contest plea as to grounds for termination was not knowing
and intelligent because the court’s colloquy was defective and she did not
understand the direct consequences of her plea.
Courts must ascertain that criminal defendants are aware of the
constitutional rights that they are waiving by entering a plea, State
v. Bangert, 131 Wis. 2d 246, 265-66, 389 N.W.2d 12 (1986), and of
the direct consequences of the plea, State ex rel. Warren v. Schwarz, 219
Wis. 2d 615, 636, 579 N.W.2d 698 (1998).
A Bangert analysis is used to evaluate the knowingness of a parent’s
no-contest plea in a termination proceeding.
See, e.g. Waukesha County v. Steven H.,
2000 WI 28, ¶42, 233 Wis. 2d
344, 607 N.W.2d 607.
Under th[is] analysis, the parent 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. If a prima facie showing is made, the burden then
shifts to the county to demonstrate by clear and convincing evidence that the
parent knowingly and intelligently waived the right to contest the allegations
in the petition.
Dep’t of Social Servs. v. Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d 493, 762
N.W.2d 122 (citations omitted).
¶5 Here, the trial court found that Brittany made her prima facie showing and sufficiently alleged that she did not
understand the information that should have been provided to her at the
hearing. The County does not dispute
this determination. We therefore examine
whether the County met its burden of showing by clear and convincing evidence
no-contest plea was knowing and intelligent.
In making our determination we accept the circuit court’s findings of
historical and evidentiary fact unless they are clearly erroneous. Steven H., 233 Wis. 2d 344, ¶51 n.18. We independently determine whether those
facts demonstrate that Brittany’s
plea was entered knowingly and intelligently. Id.,
¶51. We may examine the entire record, not
merely one proceeding, to determine whether the evidence supports the court’s
conclusion that the County met its burden to show that Brittany’s plea was knowing and
intelligent. See id., ¶42.
¶6 To show that Brittany’s
no-contest plea was entered knowingly and intelligently, the County was
required to prove that she understood at the time of her no-contest plea
(1) that she would be found unfit as a parent as a result of her plea;
(2) the potential dispositions set forth in Wis. Stat. § 48.422(7)(a),
namely the County’s petition may be dismissed at the dispositional hearing (Wis. Stat. § 48.427(2)), or the
court may terminate her parental rights (§ 48.427(3)); and (3) that
the best interests of the child will be the prevailing factor at the
disposition hearing (Wis. Stat. § 48.426(2)). See Oneida County,
314 Wis. 2d
493, ¶¶10, 16.
¶7 Brittany argues that her plea was not knowing and intelligent
because both she and her trial attorney believed that, by entering a plea of no
contest and showing herself to be a more responsible person in the months leading
up to the dispositional hearing, she might prove to the judge that she was not
unfit and consequently avoid having her parental rights terminated. This
contends, was based on a misunderstanding of the law. Brittany
argues that she and her attorney did not understand that the dispositional
hearing would be focused on the child’s best interests, and not on Brittany’s fitness to be
a parent. See Therese S., 314 Wis. 2d 493, ¶22
(parent must understand that disposition phase is focused on best interests of
child for no-contest plea to be knowing and intelligent). Brittany
further argues that she misunderstood that, as a direct consequence of her
plea, she made it easier for the County to prove its case, and this
misunderstanding was demonstrated by an unrealistic view of her chances of
success at disposition.
¶8 In response, the County contends that it met its burden of
demonstrating that Brittany
made a knowing and intelligent waiver of her right to contest the allegations
in the petition. Specifically, the
County argues that Brittany was informed of
the direct consequences of her no-contest plea, as required by Oneida. The County also argues that Brittany’s plea
was the product of a strategic decision to deflect attention from her failure
to meet the conditions for return, and to give her the opportunity to get her
life back on track and to strengthen her parental bonds with Na’Keyshia in the
months leading up to the disposition hearing. Upon our review of the record, we conclude
that the evidence supports the court’s determination that Brittany’s no-contest plea was made
knowingly and intelligently.
¶9 At issue are whether Brittany
was informed and understood that she would be found unfit as a parent as a
result of her no-contest plea and that the focus of the dispositional hearing
would be on her child’s best interests.
The record demonstrates that Brittany
understood her no-contest plea would result in a finding of unfitness and that
the court would focus on the child’s best interest at the dispositional
hearing. At the plea hearing, Brittany was made aware
that, as a result of her plea, she would be found unfit, and that the best
interests of the child standard would govern at disposition. At the evidentiary hearing, Brittany admitted that she knew what the
potential dispositional outcomes were, specifically that the court could dismiss
the petition or terminate her parental rights.
also testified that her attorney explained to her that the fact-finding hearing
came before disposition. Brittany’s trial attorney testified at the evidentiary
hearing that she discussed with Brittany the
difference between fact-finding and disposition, and that based on these
discussions, she believed Brittany
understood that the dispositional hearing would be about Na’Keyshia’s best
interests. The attorney also testified
there was no indication that Brittany
did not understand the information provided to her.
¶10 While Brittany testified at the evidentiary hearing that she
mistakenly believed the second phase of the proceeding would focus on whether
she was an unfit mother, the court found this testimony to be not
credible. The court noted that it had
observed Brittany’s demeanor and body language
at the hearing, and found that “[Brittany’s]
confusion expressed during the testimony … seems to have been brought on not by
true confusion but instead was germinated as a result of losing at the
dispositional hearing.” The court
performance at the evidentiary hearing with her “clear and unequivocal”
responses to the court’s questions at the plea hearing. The court’s comments suggest that the court
believed that Brittany
was dissembling at the later hearing, and was telling the truth at the first
hearing. We cannot say that these findings
of the trial court are clearly erroneous.
¶11 Brittany argues that her
counsel misled her about what would occur at the dispositional hearing by
focusing on Brittany’s
ability to meet the conditions for return nine months after the dispositional
hearing. The County argues that
counsel’s trial strategy was reasonable.
We agree. Indeed, Brittany appeared to
agree with this strategy. Counsel
testified at the evidentiary hearing that the aim of their strategy was to
prevent the court from learning the details of Brittany’s
poor parenting by having her enter a no-contest plea and then present positive
evidence at the dispositional hearing regarding the improvements Brittany had hopefully
made during the time between the plea hearing and the dispositional
hearing. Brittany even testified that
she believed her chances of prevailing at the fact-finding hearing were less
than at the dispositional hearing because she could not challenge the facts
provided in the petition. Counsel
testified that she conveyed to Brittany that Brittany had an “uphill battle” at trial and that having
the jury find her unfit would set the stage for a reduced opportunity of having
the court dismiss her petition if Brittany
had shown improvement. Under the
circumstances, we cannot conclude that the decision to concede grounds and
efforts on improving her bond with Na’Keyshia and on turning her life around
was an unreasonable one.
¶12 We reject, moreover, Brittany’s
suggestion that the adoption of this strategy under the circumstances reflects
her trial attorney’s misunderstanding of the purposes of the two phases of the
termination proceeding. While the second
phase of the proceeding is concerned with the child’s best interests, many
factors may impact a best-interests determination, including circumstances
favorable to the parent, “including prognosis for the parent’s markedly changed
behavior.” Sheboygan County D.H.H.S. v.
Julie A.B., 2002 WI 95, ¶29, 255 Wis. 2d
170, 648 N.W.2d 402. Wisconsin Stat. § 48.426(3)
states that, “[i]n considering the best interests of the child … the court
shall consider but not be limited to”
six statutory items. (Emphasis
added.) Among these factors is
“[w]hether 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.” Section 48.426(3)(c). This factor is directly related to one of Brittany’s objectives in
focusing on the second phase of the proceeding, strengthening the bond between
her and Na’Keyshia in the months prior to disposition. And, while Brittany’s other stated goal of
becoming sober from drugs and making other positive lifestyle changes during
that time is not a factor listed in § 48.426(3), it is clearly among those
non-specified reasons relevant to the issue of whether it would be in the
child’s best interest to have his or her relationship with the parent
¶13 Moreover, although Brittany
may have had unrealistic expectations of success, even she represented that she
had, at best, a 50/50 chance. Nor does Brittany’s asserted
belief that her no-contest plea would help her necessarily reflect a lack of
understanding of the consequences of her plea.
As noted, Brittany had failed to meet the conditions of return, and,
thus, her decision to plead no contest reflected a realistic assessment of her
chances of prevailing in the grounds phase, and a rational strategic decision
to focus on the things she could change in the months prior to disposition that
might influence the court’s decision on whether termination was in Na’Keyshia’s
also contends that her plea was premised on an affirmative material
misunderstanding about its consequences, and plea withdrawal is necessary to
prevent a manifest injustice. See Nelson
v. State, 54 Wis. 2d 489, 195
N.W.2d 629 (1972), and State v. Bentley, 201 Wis. 2d 303, 548
N.W.2d 50 (1996). Brittany contends that, even if her attorney
adequately explained the concepts of the unfitness and “best interest”
standards, she actually misunderstood these concepts, and therefore withdrawal
is necessary to prevent a manifest injustice. We reject this argument. As noted, the trial court found not credible Brittany’s stated
confusion about the purpose of the disposition phase of the proceeding. Accordingly, Brittany’s assertion that she actually did
not understand the concepts of “best interests” and unfitness is not supported
by the evidence, and we conclude that she has failed to meet her burden to
prove that plea withdrawal is necessary to prevent a manifest injustice.
By the Court.—Orders affirmed.
opinion will not be published. See Wis. Stat.