Brown County Department of Human Services v. Brenda B.

2011 WI 6, 795 N.W.2d 730, 331 Wis. 2d 310, 2011 Wisc. LEXIS 6
CourtWisconsin Supreme Court
DecidedFebruary 4, 2011
DocketNo. 2010AP321
StatusPublished
Cited by20 cases

This text of 2011 WI 6 (Brown County Department of Human Services v. Brenda B.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown County Department of Human Services v. Brenda B., 2011 WI 6, 795 N.W.2d 730, 331 Wis. 2d 310, 2011 Wisc. LEXIS 6 (Wis. 2011).

Opinion

ANN WALSH BRADLEY, J.

¶ 1. Brenda B. seeks review of an unpublished decision of the court of appeals that affirmed orders of the circuit court termi[317]*317nating Brenda's parental rights to her son, Desmond F.1 During the first phase of the proceedings, Brenda pled no contest to grounds for involuntary termination, which resulted in a finding of parental unfitness. After conducting a dispositional hearing, the circuit court terminated Brenda's parental rights upon finding that termination was in the best interests of the child. It subsequently denied Brenda's motion to withdraw her no contest plea.

¶ 2. Brenda asserts that she presented a prima facie case that she did not knowingly, voluntarily, and intelligently enter the no contest plea. Specifically, she argues that the circuit court failed to inform her that by pleading no contest she was waiving her constitutional right to parent, and it failed to inform her of the full range of possible dispositions the court could enter.

¶ 3. Given that a finding of parental unfitness does not necessarily result in an involuntary termination of parental rights, we determine that the circuit court was not obligated to inform Brenda that by pleading no contest she was waiving her constitutional right to parent. We additionally determine that the court need not explain that the right to parent is a constitutional right. What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived.

¶ 4. We further conclude that the parent must be informed of the two independent dispositions available to the circuit court. That is, that the court may decide between dismissing the petition and terminating parental rights.

[318]*318¶ 5. Finally, we determine that the colloquy in this case fulfilled the requirements set forth above and that Brenda has failed to present a prima facie case that her plea was not entered knowingly, voluntarily, and intelligently. Accordingly, we affirm the court of appeals.

I

¶ 6. In October 2008, Desmond was adjudged to be a child in need of protection or services. He was placed outside the home, in the care of foster parents. Nine months later, the Brown County Department of Human Services (the County) filed a petition for involuntary termination of Brenda's parental rights.2 As grounds, the County alleged that Desmond was in continuing need of protection or services and also that Brenda failed to assume parental responsibility for Desmond.3 See Wis. Stat. §§ 48.415(2), 48.415(6).4

¶ 7. Through her attorney, Brenda opposed the petition, demanded a jury trial for the fact-finding hearing, and waived the statutory time limits. Trial was scheduled for October 6, 2009.

¶ 8. However, at a hearing that took place one day before the scheduled trial, Brenda's attorney advised the court that Brenda intended to plead no contest to the petition's allegation that there were grounds for termination. He explained that Brenda still intended to contest the ultimate disposition:

[319]*319My client and I will talk some more but she [has] indicated to me that she understands the procedure 'cuz I explained it to her. . ..
I explained to her the purpose of a jury trial and the rights that go along with it. We've talked.
My client indicates to me that she is going to agree to waive her right to have a jury trial in this case and she [has] made it clear to me that she wishes to contest the ultimate disposition in this case where she would argue to the Court that it's not in the best interests of the child to terminate her parental rights.
She's — she has clearly advised me that she does not want to give up her parental rights and she's made it clear to me after we further discussed this case that she does not wish to have a trial.

The County agreed that if Brenda did not contest that Desmond was in continuing need of protection or services, the County would move to dismiss the remaining alleged ground for termination, failure to assume parental responsibility.

¶ 9. On the following morning, the circuit court placed Brenda under oath and engaged her in a colloquy to determine whether she knowingly, voluntarily, and intelligently intended to plead no contest to grounds for termination. The court's colloquy was lengthy, occupying 20 pages of hearing transcript. Additionally, both Brenda's counsel and counsel for the County addressed Brenda and made extensive inquiries relating to her plea.

¶ 10. The court began by ascertaining Brenda's age, educational level, mental state, satisfaction with her attorney, and ability to read, write, and understand [320]*320English. Brenda acknowledged that she had reviewed the petition and its attachment with her attorney, and she stated that she did not have any questions.

¶ 11. Brenda informed the court that she wanted to plead no contest to grounds for termination. The court inquired into whether Brenda understood the procedural rights she was waiving by entering the plea, including the right to call witnesses, the right to cross-examine witnesses, and the right to remain silent without having anyone comment upon her silence. It inquired into whether Brenda understood that she was giving up the right to make the County prove the elements of continuing need of protection or services by clear and convincing evidence.

¶ 12. The court explained that the question at the fact-finding hearing would have been whether there were grounds to terminate her parental rights:

[W]hat this whole hearing would be about is not whether you're terminate — your parental rights should be terminated. That's ultimately my decision in the disposition hearing. I can either grant the petition to terminate your parental rights or dismiss the petition to terminate your parental rights.
What this is — what this trial would be is [to] see if there are facts to terminate your parental rights on. It's called a fact-finding hearing. Do you understand that?

Brenda responded that she understood. The court outlined the jury instructions and the special verdict questions, and Brenda attested that she understood the findings a jury would have to make.

¶ 13. Upon the court's questioning, Brenda indicated she understood that if the court accepted her plea, the court would be required to make a finding of parental unfitness. The court inquired:

[321]*321[I]f you make a no contest plea and I accept your plea ... I have to make a finding of parental unfitness. Do you understand that?

Brenda indicated that she understood.5

¶ 14. The court informed Brenda that once grounds for termination were found, the next phase would consist of a dispositional hearing. It explained that at the dispositional hearing, the court could either grant the petition or dismiss the petition, and that decision would be made based on the best interests of the child:

I can grant the petition at a dispositional hearing or I can dismiss the petition at a dispositional hearing.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 WI 6, 795 N.W.2d 730, 331 Wis. 2d 310, 2011 Wisc. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-county-department-of-human-services-v-brenda-b-wis-2011.