Oneida County Department of Social Services v. Therese S.

2008 WI App 159, 762 N.W.2d 122, 314 Wis. 2d 493, 2008 Wisc. App. LEXIS 756
CourtCourt of Appeals of Wisconsin
DecidedSeptember 26, 2008
DocketNo. 2008AP1126
StatusPublished
Cited by29 cases

This text of 2008 WI App 159 (Oneida County Department of Social Services v. Therese S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oneida County Department of Social Services v. Therese S., 2008 WI App 159, 762 N.W.2d 122, 314 Wis. 2d 493, 2008 Wisc. App. LEXIS 756 (Wis. Ct. App. 2008).

Opinion

PETERSON, J.

¶ 1. Therese S. appeals orders terminating her parental rights to her daughter, Yasmine B., and denying her postdisposition motion. She contends her motion presented a prima facie case she did not knowingly and intelligently enter her no contest plea to the grounds portion of the petition. We agree, reverse the orders, and remand for the circuit court to determine whether the County can prove the plea was nonetheless entered knowingly and intelligently.

BACKGROUND

¶ 2. Oneida County filed a petition to terminate Therese's parental rights alleging she failed to assume parental responsibility and that Yasmine was in continuing need of protection or services. Therese contested the petition and a fact-finding hearing was scheduled. On the hearing date, the court was informed Therese would plead no contest to the continuing need ground and the County would dismiss the other ground.

¶ 3. The court then engaged Therese in a colloquy prior to accepting her plea. In response to the court's questioning, Therese told the court she had reading problems and did not graduate from high school. Additionally, counsel informed the court Therese received social security benefits for a mental disability. The court ultimately concluded the plea was knowingly and intelligently made. After a contested dispositional hearing, the court terminated Therese's parental rights to Yasmine.

¶ 4. Therese's postdisposition motion argued the plea colloquy was deficient because the court failed to [497]*497inform her: (1) she would be found unfit to parent as a result of the plea, (2) of the potential dispositions or that the dispositional decision would be governed by the child's best interests, and (3) she was waiving her constitutionally protected right to parent her child. Further, the motion alleged Therese did not understand these consequences of her plea and thought the result was simply that the judge, rather than a jury, would decide her case. The court denied Therese's motion without receiving any evidence.2

DISCUSSION

¶ 5. Prior to accepting a plea of no contest to a termination petition, the circuit court is required to engage the parent in a personal colloquy in accordance with Wis. Stat. § 48.422(7).3 Kenosha County v. Jodie W., 2006 WI 93, ¶¶ 24-25, 293 Wis. 2d 530, 716 N.W.2d 845. That statute provides in relevant part:

(7) Before accepting an admission of the alleged facts in a petition, the court shall:
[498]*498(a) Address the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.
(b) Establish whether any promises or threats were made to elicit an admission ....
(c)Make such inquiries as satisfactorily establish that there is a factual basis for the admission.

Wis. Stat. § 48.422(7). Additionally, the parent must have knowledge of the constitutional rights given up by the plea. Jodie W., 293 Wis. 2d 530, ¶ 25 (citing State v. Bangert, 131 Wis. 2d 246, 265-66, 389 N.W.2d 12 (1986)).

¶ 6. When a parent alleges a plea was not knowingly and intelligently made, the Bangert analysis applies. Waukesha County v. Steven H., 2000 WI 28, ¶ 42, 233 Wis. 2d 344, 607 N.W.2d 607. Under that 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. Id. 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. Id.

¶ 7. Whether Therese has presented a prima facie case by pointing to deficiencies in the plea colloquy and sufficiently alleging she did not know or understand information that should have been provided in the colloquy is a question of law we review independently. See State v. Brown, 2006 WI 100, ¶ 21, 293 Wis. 2d 594, [499]*499716 N.W.2d 906; State v. Kywanda F., 200 Wis. 2d 26, 38-39, 546 N.W.2d 440 (1996).

¶ 8. Regarding the first alleged deficiency, it is undisputed that the circuit court never established on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶ 9. The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis "[bjefore accepting an admission...." Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶ 26, 255 Wis. 2d 170, 648 N.W.2d 402.

¶ 10. We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. In the criminal context, Bangert requires courts to notify defendants of the direct consequences of their plea. Brown, 293 Wis. 2d 594, ¶ 35. In Brown, the court observed, "If a defendant does not understand . . . the implications of the plea, he [or she] should not be entering the plea, and the court should not be accepting the plea." Id., ¶ 37.

¶ 11. The criminal direct consequence requirement is codified in Wis. Stat. § 971.08(1). State v. Bollig, 2000 WI 6, ¶ 16, 232 Wis. 2d 561, 605 N.W.2d 199. That section is the nearly identical counterpart to Wis. Stat. [500]*500§ 48.422(7).4 Thus, as in the criminal context, courts must determine on the record that parents understand the direct consequences of their pleas.5 A finding of parental unfitness is a direct, immediate, and fundamental consequence of entering a no contest plea.6 That finding concludes the first step of the termination process, where the burden is on the government and the parent's rights are paramount. Julie A.B., 255 Wis. 2d 170, ¶ 24.

[501]*501¶ 12.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. D. H.
Court of Appeals of Wisconsin, 2026
State v. D. R.-R.D.J.
Court of Appeals of Wisconsin, 2025
State v. H. C.
2025 WI 20 (Wisconsin Supreme Court, 2025)
State v. F. S.-E.
Court of Appeals of Wisconsin, 2025
State v. B. M.
Court of Appeals of Wisconsin, 2024
State v. B. W.
2024 WI 28 (Wisconsin Supreme Court, 2024)
Columbia County DH&HS v. S. A. J.
Court of Appeals of Wisconsin, 2024
State v. B. W.
Court of Appeals of Wisconsin, 2023
State v. A. G.
2023 WI 61 (Wisconsin Supreme Court, 2023)
State v. S. S.
Court of Appeals of Wisconsin, 2023
State v. Y. P. V.
Court of Appeals of Wisconsin, 2023
State v. N. H.
Court of Appeals of Wisconsin, 2023
State v. M. J. C.
Court of Appeals of Wisconsin, 2022
State v. M.B.
Court of Appeals of Wisconsin, 2022
State v. A. G.
Court of Appeals of Wisconsin, 2022
State v. A.G.
Court of Appeals of Wisconsin, 2022
State v. V.R.
Court of Appeals of Wisconsin, 2021
State v. J.T.
Court of Appeals of Wisconsin, 2021
State v. William T. Peterson
Court of Appeals of Wisconsin, 2019
State v. T. L. G.
Court of Appeals of Wisconsin, 2019

Cite This Page — Counsel Stack

Bluebook (online)
2008 WI App 159, 762 N.W.2d 122, 314 Wis. 2d 493, 2008 Wisc. App. LEXIS 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneida-county-department-of-social-services-v-therese-s-wisctapp-2008.