State v. B. W.

2024 WI 28, 8 N.W.3d 22, 412 Wis. 2d 364

• Court: Wisconsin Supreme Court
• Decided: June 27, 2024
• Docket: 2022AP001329
• Status: Published

Opinion

2024 WI 28

SUPREME COURT OF WISCONSIN CASE NO.: 2022AP1329

COMPLETE TITLE: 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-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: June 27, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 19, 2024

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Ellen R. Brostrom

JUSTICES: ZIEGLER, C.J., delivered the majority opinion of the Court, in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined, and in which ANN WALSH BRADLEY and PROTASIEWICZ, JJ., joined except ¶¶65-67. ZIEGLER, C.J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a concurring opinion, in which PROTASIEWICZ, J., joined. NOT PARTICIPATING:

ATTORNEYS: For the respondent-appellant-petitioner, there were briefs filed by Christopher D. Sobic, assistant state public defender. There was an oral argument by Christopher D. Sobic, assistant state public defender. For the petitioner-respondent, there was a brief filed by Jenni Spies Karas, assistant district attorney. There was an oral argument by Jenni Spies Karas, assistant district attorney.

A guardian ad litem brief was filed by Courtney L.A. Roelandts, and The Legal Aid Society of Milwaukee, INC., Milwaukee. There was an oral argument by Courtney L.A. Roelandts.

2 2024 WI 28 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP1329 (L.C. No. 2021TP102)

STATE OF WISCONSIN : IN SUPREME COURT

In re the termination of parental rights to B.W., a person under the age of 18:

State of Wisconsin, FILED Petitioner-Respondent, JUN 27, 2024 v. Samuel A. Christensen Clerk of Supreme Court B.W.,

Respondent-Appellant-Petitioner.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which REBECCA GRASSL BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined, and in which ANN WALSH BRADLEY and PROTASIEWICZ, JJ., joined except ¶¶65-67. ZIEGLER, C.J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. ANN WALSH BRADLEY, J., filed a concurring opinion, in which PROTASIEWICZ, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of

an unpublished decision of the court of appeals, State v. B.W.,

No. 2022AP1329, unpublished slip op. (Wis. Ct. App. Sept. 12, No. 2022AP1329

2023), affirming the circuit court1 orders terminating B.W.'s

parental rights and denying B.W.'s post-disposition motion to

withdraw his no-contest plea. We accepted B.W.'s petition to

review the court of appeals' decision. We affirm the court of

appeals.

¶2 This petition concerns the following two issues:

1) When a parent in a termination of parental rights case enters a no contest plea to grounds, is the circuit court's plea colloquy defective if it informs the parent of the best interest[s] standard but miscommunicates the burden of proof it is required to apply at disposition?

2) Did the circuit court improperly rely on the adoptive parent's assurance that she would allow B.W. to continue to visit with his son in deciding to terminate his parental rights?

¶3 B.W. argues that the plea colloquy is defective

because the circuit court miscommunicated that a clear,

satisfactory, and convincing burden of proof applied not only to

the grounds phase but also to the disposition phase. He argues

that the burden of proof is a trial right and when the court described B.W.'s rights at the grounds phase and then

incorrectly advised B.W. that he would have "all those same

trial rights" at disposition, the court misinformed him that

this heightened burden of proof, rather than the "best interests

of the child" standard, would apply at disposition. B.W. argues

1 The Honorable Ellen R. Brostrom presided over B.W.'s plea and dispositional hearing and entered the orders terminating B.W.'s parental rights. The Honorable Joseph R. Wall presided over B.W.'s post-disposition motion hearing and issued the orders denying the motion.

2 No. 2022AP1329

that because of this miscommunication, he was not properly

advised about the potential ramifications of pleading no contest

to grounds. In other words, B.W. avers that the court

misadvised that the State would be held "to the higher burden of

proof that termination was clearly and convincingly in his son's

best interest." B.W. also argues that at disposition, the

circuit court improperly relied on the proposed adoptive

parent's assurance that she would allow B.W. to continue to

visit and "co-parent" Bob.2

¶4 We conclude that B.W. failed to make a prima facie

showing that the plea colloquy was defective. At the plea

hearing, the circuit court properly informed B.W. that the

prevailing factor at disposition is the statutory

standard: "The best interests of the child." Wis. Stat.

§ 48.426(2) (2021-22).3

¶5 We also conclude that at disposition, the circuit

court did not erroneously exercise its discretion by relying on

the proposed adoptive parent's testimony that post-termination, she would allow B.W. to continue to visit with Bob and that they

would "co-parent." The court did not fail to consider that this

testimony was an "unenforceable promise," nor did the court

"hinge" termination on this testimony. The circuit court

"Bob" is a pseudonym which the court of appeals used in 2

referring to B.W.'s son, since B.W. and his son share the same initials. For sake of consistency and clarity, we will likewise use "Bob" to refer to B.W.'s son in this opinion.

All subsequent references to the Wisconsin Statutes are to 3

the 2021-22 version unless otherwise indicated.

3 No. 2022AP1329

properly exercised its discretion, considering the testimony and

weighing the statutory dispositional factors of Wis. Stat.

§ 48.426(3).

¶6 Accordingly, we affirm the decision of the court of

appeals.4

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶7 Termination of parental rights ("TPR") cases, governed

by the Wisconsin Children's Code, Wis. Stat. ch. 48, follow a

bifurcated procedure. At the initial stage, the grounds phase,

it is the State's burden to prove the grounds by clear and

convincing evidence.5 Wis. Stat. § 48.31; see also Evelyn C.R.

v. Tykila S., 2001 WI 110, ¶¶21-22, 246 Wis. 2d 1, 629

N.W.2d 768; Waukesha Cnty. Dep't Soc. Servs. v. C.E.W., 124

Wis. 2d 47, 60, 368 N.W.2d 47 (1985). If "grounds" are proven,

then the court proceeds to the dispositional stage. At the

dispositional phase, "the best interests of the child" shall be

the prevailing factor. Wis. Stat. § 48.426(2); Evelyn C.R., 246

Wis. 2d 1, ¶23; State v. Margaret H., 2000 WI 42, ¶¶33-34, 234 Wis. 2d 606, 610 N.W.2d 475. In considering the best interests

4 We decline to address the burden of proof issue in the majority opinion. 5 We recognize that Wis. Stat. § 48.31 uses the language "clear and convincing evidence" to describe the State's burden of proof at the grounds phase. We also recognize that the circuit court consistently used the language "clear, satisfactory, and convincing" when describing that same burden. No challenge is being made to the court's use of "satisfactory." For purposes of this opinion, we use the "clear and convincing" language when referring to the statute, and the language the court used when quoting the circuit court.

4 No. 2022AP1329

of the child, "the court shall consider but not be limited to"

(emphasis added) 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 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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Wis. Stat. § 48.426(3)6 ¶8 The State filed a TPR petition seeking to terminate

B.W.'s parental rights to Bob. In its petition, the State

alleged two grounds for termination: (1) that Bob was a child

in continuing need of protection or services ("CHIPS"), and (2)

that B.W. failed to assume parental responsibility. The State

alleged that B.W. failed to comply with the conditions of return

for Bob, including but not limited to, a failure to attend

mental health appointments, control his substance use disorder,

obtain stable housing arrangements, and be consistent with

visitation. The State also referenced numerous reports to Child

Protective Services ("CPS"), over a four-year span, which

alleged that B.W. and Bob's mother were engaged in repeated

domestic violence incidents and ongoing drug use. In sum, the

State alleged that B.W. had "still not addressed the issues that

resulted in [Bob's] removal." The State sought to place Bob

with the proposed adoptive parent, with whom B.W. shared another

child.

6See, e.g., State v. Margaret H., 2000 WI 42, ¶15, 234 Wis. 2d 606, 610 N.W.2d 475 (agreeing with court of appeals' decision to remand, notwithstanding its erroneous statutory interpretation, because "the record indicates that the circuit court failed to consider all of the relevant statutory factors enumerated under Wis. Stat. § 48.426(3)") (emphasis added); Sheboygan Cnty. Dep't Health & Human Servs. v. Julie A.B., 2002 WI 95, ¶4, 255 Wis. 2d 170, 648 N.W.2d 402 (concluding that the court "must consider . . . the six factors enumerated in § 48.426(3) in determining the best interests of the child" but "the court may also consider other factors . . . but all factors relied upon must be calibrated to the prevailing standard: the best interests of the child").

6 No. 2022AP1329

¶9 The circuit court held an adjourned initial appearance

on the State's TPR petition. The court explained the bifurcated

TPR procedure to B.W.:

In the first half, the court answers the basic question, is there a legal reason, or what we call a ground, to terminate your parental rights? If that question is answered "yes," then we get to the second half where the court answers the question, is it in [Bob's] best interest that the court actually terminate your parental rights?

And in each of those halves, you can agree or disagree, you have a right to a trial. So--

[B.W.]: Okay.

THE COURT: --turning back to that first half of the case where the court answers the basic question, is there a legal reason to terminate your parental rights, as I indicated, if you disagree that there is a reason to terminate your parental rights, you have a right to a trial about that.

. . .

[W]hether you choose the trial to me the judge or the jury, it's the State that has to prove by clear, convincing, and satisfactory evidence to a reasonable certainty that there is a reason to terminate your parental rights.

The State would try to do that by calling witnesses to the stand. You would have a right to cross-examine them. You would have the right to introduce your own evidence. You would have the right to use subpoenas to require witnesses to come to court and testify on your behalf. And you have the right to testify yourself or choose to remain silent. . . .

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 that's actually in [Bob's] best

7 No. 2022AP1329

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.

And, again, it would be [a] process with witnesses on the stand. You would have the right of cross-examination. You would have the right to introduce your own evidence. You would have the right to require witnesses to come to court and testify for you. And you could testify also testify [sic] or, again, remain silent, again, knowing silence could be used against you.

(Emphasis added.) The circuit court then set future court dates

for the matter.

¶10 Several months later, B.W. pled no contest to the

grounds phase of the TPR. At this plea hearing, the circuit

court advised B.W.:

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 [right] 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?

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

8 No. 2022AP1329

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?

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

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

[B.W.]: Yes. (Emphasis added.)

¶11 The court then explained:

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?

9 No. 2022AP1329

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?

¶12 The court verified that B.W. was not threatened or

coerced into entering his no contest plea. B.W.'s attorney also

advised the court that he believed that the plea was being made

knowingly, intelligently, and voluntarily. The court found that

B.W. was knowingly, intelligently, and voluntarily pleading and

set a date for the next proceeding.

¶13 The court then held a "prove-up"7 to grounds hearing,

at which B.W. and his counsel, the guardian ad litem ("GAL"),

and Bob's former and current case managers attended. The court

heard testimony from Bob's former case manager which supported

the "grounds" determination. The case worker testified about

7 When, as in this case, a parent pleads no contest to the grounds in the TPR petition, the court "shall hear testimony in support of the allegations in the petition." Wis. Stat. § 48.422(3). This hearing is commonly referred to as a "prove- up."

10 No. 2022AP1329

previous interactions with B.W. while Bob was in his care, and

the services that were made available to B.W.8

¶14 Before the court made its findings for the grounds

phase, it first addressed B.W. and encouraged B.W. to continue

to progress dealing with "the really hard circumstances" of the

death of a child, death of his mom, homelessness, and drug

addiction, in addition to his service-related PTSD. The court

stated:

So, you know, I just want to let you know, I have [to] make my findings that the State has proven the grounds, but I just want to express my compassion to you and my respect to you for your service to our country.

[B.W.]: Thank you.

THE COURT: You're welcome. So, I do think that the testimony does provide clear, convincing and satisfactory evidence of the grounds at issue here. ¶15 The court concluded that grounds were proven: "[Bob]

is a child who has been adjudged to be in need of protection or

8 In her testimony, the case manager testified to the unsafe conditions which necessitated Bob's removal from B.W.'s care. The case manager also testified to the variety of services they provided B.W. after Bob's removal, including parenting assessments, AODA assessments, random urinalysis, psychological evaluation, home management and case management. According to the case manager's testimony, B.W.'s level of participation in the provided services was sporadic. The case manager also testified to B.W.'s ongoing struggles to comply with the conditions of return. The case manager's concerns included, among other things, B.W.'s refusal to manage and address his own mental health diagnoses; B.W.'s inconsistency in visitation; B.W.'s difficulty meeting Bob's diagnosed PTSD-related mental health needs; and B.W.'s failure to provide Bob with a safe and clean home, given B.W.'s frequent experiences with bouts of homelessness and housing instability.

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services and placed outside the of the home for cumulative

period of 6 months or longer pursuant to one or more court

orders containing the termination of parental rights notice

required by law." Wis. Stat. § 48.415(2)(a)1. The court also

found that while B.W. had "made a little bit more progress," CPS

"made reasonable efforts" to provide the services ordered by the

court and that B.W. "failed to meet the conditions established

for Bob's safe return." § 48.415(2)(a)2.a.-b. Finally, the

court found that due to B.W.'s failure to meet the conditions

established for Bob's safe return, Bob had been placed outside

of the home for 15 of the past 22 months. § 48.415(2)3. The

court found B.W. unfit to parent. Accordingly, the court

concluded that the State had proven grounds for TPR by clear,

satisfactory, and convincing evidence."9

¶16 Later that month, the court began the dispositional

hearing phase. Including B.W., six witnesses testified at the

dispositional hearing. Three witnesses testified on behalf of

the State: the case manager, the former case manager, and the proposed adoptive parent for Bob. Three witnesses testified on

behalf of B.W.: the supervised visitation worker, B.W.'s

grandmother, and B.W.

¶17 The proposed adoptive parent, D.D., testified first.

D.D. is Bob's foster parent and he lives with her. D.D. and

B.W. are also the biological parents of another child, who lives

with D.D. As a result, B.W. and Bob have contact. D.D.

9 See ¶7 n.5, supra.

12 No. 2022AP1329

explained that before Bob was placed with her two years prior,

she frequently saw Bob for holidays and overnight visits. D.D.

testified that Bob got along with her two other children, and

since being placed with her, his behavior patterns had improved.

D.D. further testified that she would like to adopt Bob. The

State asked how D.D. would feel about continuing contact between

Bob and Bob's sibling and B.W.'s grandmother, if the court

granted termination of parental rights. D.D. expressed that the

continued contact would be "totally fine."

¶18 D.D. affirmed that since Bob was placed in her care,

she and B.W. "talk a bit." She stated that B.W.'s contact with

Bob had been sporadic, but that B.W. had recently been more

consistent, "call[ing] almost every day." D.D. also testified

that unlike Bob's birth mother, Bob "absolutely" talked a lot

about B.W. Counsel for the State asked D.D.:

If the Court were to grant the termination petition today, have you given any thought as to what your position would be for further contact between [Bob] and [B.W.]?

[D.D.] I would still expect him to be in full contact.

[Counsel for State] At this point do you feel as though you have a positive relationship with [B.W.]?

[D.D.] I think so.

[Counsel for State] Is that something that is important to you?

[D.D.] It is.

¶19 When questioned by the GAL, D.D. shared that she "absolutely" respected the role B.W. had in Bob's life and their

13 No. 2022AP1329

relationship of father and son. D.D. reiterated that the

relationship between B.W. and Bob could continue "as long as

it's safe, [it would be] fine."

¶20 Next, the court heard from Bob's former case manager.

The case manager testified that she had conversations with D.D.

"about her willingness to be a long-term adoptive resource for

[Bob]" and that D.D. "was willing because [Bob] was her

daughter's half sibling." The case manager also testified to

observing Bob in D.D.'s home, that Bob "fits in really well" and

"has a lot of playmates" with the other children in D.D.'s care,

including his half-sister, and that Bob "appear[ed] bonded" to

D.D., referring to D.D. as "mom." The case manager acknowledged

that if the court were to terminate B.W.'s parental rights, it

was "highly likely" that D.D. would adopt Bob.

¶21 The case manager also testified about Bob's health and

condition at the time of his removal from B.W.'s care. She

stated that he "ha[d] some behavioral concerns when the case

first came in" including a "preoccupation with death, killing" so he was referred for a neuropsychological assessment. She

said that Bob's PTSD "was related to past trauma or things he

had witnessed within his home environment" such as the death of

his grandmother from a drug overdose, and the death of his baby

sister. She said Bob was placed in play therapy after the PTSD

diagnosis and continued to show improvement. The case manager

stated that D.D. "had an understanding of what [Bob's] mental health needs were," was "supportive" in providing Bob the

treatment he needed, and that she had no concerns about D.D.'s 14 No. 2022AP1329

ability to meet Bob's medical or mental health needs going

forward.

¶22 The case manager testified that severing Bob's

relationship with his great-grandmother would not cause him any

harm. She noted that the relationship was not substantial and

"he would still have contact and be able to see her." The case

manager testified that no harm would be caused to Bob by

severing the relationship to his biological mother, as Bob's

biological mother informed the case manager that "she didn't

want to have anything to do with the court and she stopped her

relationship with Bob."

¶23 When asked about Bob's relationship with B.W., the

case manager acknowledged that B.W. struggled to maintain

consistent contact with Bob, which the case manager attributed

to B.W.'s "drug and alcohol usage." B.W.'s inconsistency in

visitation "really upset [Bob]" who would "become angry if

[B.W.] wasn't present when [Bob] thought he should be there."

While the case manager said that Bob's relationship with B.W. was "substantial," she "[didn't] believe there would be harm if

the legal relationship were severed because [she] believes that

he will see [B.W.] outside of a legal relationship." She

observed that B.W. and D.D. "share a child who [B.W.] sees on a

regular basis as well, and so I know that [D.D.] wants the

children to see and know their dad. So I believe that [B.W.]

would be able to see the kids consistently." The case manager testified that termination would be in Bob's best interests

because it would allow him to "enter into a more stable and 15 No. 2022AP1329

permanent family relationship" as Bob "craves stability." She

said Bob "talks a lot about wanting to go home and being with

[B.W.]" but when B.W. failed to keep his promises, Bob would

"become upset" and "get mad" and "want to stay with D.D." The

case manager believed that Bob "truly wanted to be in a family

where he knows that he's not going to go anywhere." The case

manager recognized that B.W. "[was] on the right track and he's

trying to make changes in his life." However, he "has a

longstanding history of substance abuse and drug use so I feel

that there would be a lot more work that still needs to be

done."

¶24 Bob's current case manager then testified regarding

ongoing efforts with B.W. to obtain stable housing, to

facilitate in-home visits, and B.W.'s participation in post-

treatment programs. She also testified that B.W. would have to

make significant progress to move to unsupervised visits with

Bob.

¶25 B.W. first called the visitation worker to testify. The visitation worker testified that B.W. had "been progressing

over time" in terms of completing his VA program and obtaining

his own apartment, and that her overall summation was that

"things were progressing and going as they should be." On

cross-examination, however, the visitation worker admitted that

she had never actually been assigned to supervise a visit

between B.W. and Bob, and that she had to rely instead on notes from another supervised visitation worker.

16 No. 2022AP1329

¶26 B.W.'s second witness was B.W.'s grandmother. B.W.'s

grandmother testified to letting Bob stay at her house and

"taking care of him when [B.W.] was at his darkest." She

testified that she at one point "no longer had contact" with

B.W., because "he was on drugs and I wouldn't allow him in my

home anymore." She also pointed out that she had "seen a

change" in B.W. over the last year, that he "realized

it . . . was time for a change." B.W.'s grandmother also

testified to having a "cooperative" relationship with D.D., and

that she "would be willing to be a guardian, work in a guardian-

type position with [Bob]" or "share placement" if the court

allowed it. She also testified that she felt she could work

with B.W. and D.D. to raise Bob, commending B.W. for his

progress and D.D. for the "positive relationship" she had with

her.

¶27 Finally, B.W. took the stand. B.W. testified to his

participation in residential rehabilitation treatment and other

parenting and anger management groups. He stated he participated in those groups "[b]ecause I needed to get my life

together." B.W. also testified that he would "love to get [Bob]

back, love to be the father for him that I know I can be, just

be there for him on an emotional level and physical." B.W.

would be willing to have his grandmother be Bob's guardian while

he continued to improve. On cross-examination however, B.W.

admitted that he had been "diagnosed with alcohol dependence, cocaine dependence, opioid dependence, and cannabis abuse" and

that he had had "four accidental overdoses." B.W. likewise 17 No. 2022AP1329

admitted D.D. "provided a stable, secure home for [Bob]" while

"helping" Bob work though his struggles.

¶28 After the testimony was concluded, the State asked the

court to grant its petition for termination of B.W.'s parental

rights. In its closing argument, the State said that it "[took]

no pleasure in making the request," but the State nonetheless

acknowledged that it was its obligation "to assess and argue for

what is in [Bob's] best interests, and [the State thinks]

termination is." The State reminded the court that "there is a

ton of evidence about how chaotic [Bob's] life was prior to his

removal" from B.W.'s care, including exposure to death, domestic

violence, drug use, homelessness, and other unsafe conditions.

Among other things, the State argued that if Bob's relationship

to B.W. were severed by the court granting termination and D.D.

adopting, that "when the Court looks in terms of balancing the

nature of the substantial relationship against the risk of harm,

[Bob is] not going to be harmed if the Court legally severs that

relationship." Finally, the State pointed to the fact that "as long as [B.W.] stays sober and healthy and appropriate, I think

[D.D.'s] testimony that she would continue to facilitate that

contact was very credible," and that D.D. had "continued to

facilitate that contact [with Bob] outside of case management's

direct involvement." In "looking at the totality of the case

[and] looking at all the factors," the State argued stability

and permanency "very strongly weigh[] in favor of TPR and adoption in this case."

18 No. 2022AP1329

¶29 The court continued the disposition hearing to another

date, a couple weeks later, for the remaining closing arguments.

The GAL argued for TPR and adoption as being in Bob's best

interests. While the GAL recognized "B.W.'s success in AODA

treatment," she nonetheless recommended termination of parental

rights instead of a guardianship. She reminded the court of the

"horrific circumstances that existed at the time of [Bob's]

detention" and Bob's subsequent CHIPS——that Bob's baby sister

died in Bob's parents' care in a hotel room, a hotel room in

which responding law enforcement found weapons and drugs, as

well as Bob and his incapacitated parents. The GAL argued that

Bob "needs permanence and stability with the current placement

where he has been nurtured and has found stability and believes

to be a safe place." The GAL also argued that Bob's best

interests should be paramount even to B.W.'s commendable

progress with treatment, and that whatever progress was made was

"too recent to take a chance with Bob's life and mental health."

Finally, in addressing the concerns about B.W. and his relationship with Bob, the GAL stated:

[I do not] believe it's going to be harmful to sever the relationship because the foster parent does have a child with [B.W.] and has a long track record of allowing contact with that child and [B.W.]. Then [Bob] will be a part of that picture. That relationship will still exist, and there's no evidence to indicate she would not allow it as long as it is safe and stable.

Legal severance I don't believe will be harmful to [Bob] for that reason. If TPR is not granted, reunification is not imminent. [Bob] needs permanency and stability now . . . .

19 No. 2022AP1329

¶30 The court then heard closing argument from B.W.'s

attorney, who argued that her client had "demonstrated the

complete commitment that [B.W.] has had to changing his life,"

and that the court should recognize that "what we do . . . is to

give parents opportunities to reunite with their children if

they're worthy." She argued that it was "clearly in the best

interest of the child that [B.W.] be allowed to maintain his

parenting status," because B.W. took anger management classes

and participated in mental health and drug addiction treatment

programs. Finally, B.W.'s attorney argued for dismissal because

"there are alternatives to terminating his parental rights."

She suggested "[p]erhaps a shared guardianship or a temporary

guardianship" with D.D. and B.W.'s grandmother so that [B.W.]

"could prove over time to the Court that he can maintain his

sobriety, that this is not just something that he's done

temporarily, but rather a permanent change."

¶31 On rebuttal, the State argued that doing anything

short of TPR in this case was "concerning":

[I]n my opinion, [anything short of TPR would not be] in [Bob's] best interest because the uncertainty and the safety concern that kind of circles around with is there going to be another relapse, am I going to have to go back to a situation of housing instability or drug use, those unanswered questions remain if the Court does anything short of termination.

If the Court chooses to grant the State's petition as requested, [Bob] knows where he's going to be. He's going to be in a place that is safe no matter what, no matter if people make promises to him or don't make promises to him, he's safe and secure in a home he's thriving in.

20 No. 2022AP1329

¶32 The State further expressed concern that "recovery is

a process," so while the State "[didn't] want to diminish the

progress [B.W.] made," he was still nonetheless "on a path to

recovery" and susceptible to relapse. The State concluded by

reminding the court that it's "focus today has to be on what is

in [Bob's] best interest as opposed to [B.W.'s] best interest." ¶33 After closing arguments, the circuit court recognized

that this was a case that had "a long history of parental drug

use and then a parent who is solid in recovery by the time we

get to disposition are really hard." The court acknowledged

B.W.'s progress in a variety of areas,10 and stated:

And so it's hard because I want to affirm that, but today's hearing is not about affirming that progress solely, it's also about what [Bob] needs, and [Bob] needs continued stability.

Of course, relapse is always a potential. I'm not saying that I think that that what's going to happen, but also what [Bob] doesn't need is for continued uncertainty about where he's going to be, what's his home, who is he going to live with.

¶34 Reiterating its concern that Bob needed "stability,"

the circuit court stated that it "strongly consider[ed] transfer

of guardianship to [D.D.]" but that doing so would keep Bob "in

a position for continued litigation, for continued conversations

about different configurations of his life." The court

concluded that Bob's PTSD diagnosis

The court referenced B.W.'s progress, that he had not 10

used drugs for over five months, was engaged in recovery support and aftercare programs, had a full-time job, and had repaired the relationship with his grandmother.

21 No. 2022AP1329

is really significant. And . . . it leaves a long destructive wake . . . in its path. Even after one gets to the point of recovery that you are, that destructive path continues to sort of unfold. It has a momentum.

[A]nd I just really think that Bob needs . . . the stability.

¶35 The court further recognized:

[G]iven that you [B.W.] 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 meaningful coparenting even if the legal relationship is severed, and I found [D.D.'s] testimony to be credible that she would do that.

¶36 The court continued:

So in terms of my findings . . . Bob is likely to be adopted post termination. [D.D.] is licensed and committed. At the time of removal, [Bob] was not in good mental health, given the really difficult experiences that he had. Today he's still working through those experiences, but overall he is thriving, and that's an important thing that the Court doesn't want to disrupt. He doesn't seem to have any medical issues.

I think he does have a substantial relationship with you, [B.W.]. I don't think he has a substantial relationship with the mother or any extended family members. He certainly knows his great grandmother, but I don't think the contact was extensive . . .

There's always some harm in severing legal relationships, but I think that harm will be mitigated by the coparenting circumstances that I've just described. [Bob's] wishes are complex as can be understood, but he certainly is bonded with [D.D.]. He is living with his half-sibling. He's thriving in

22 No. 2022AP1329

that home, and he has recognized those benefits. He has been separated from his parents since 2019, so a significant chunk of his young life. And most fundamentally, it's the stability and permanency that the Court is seeking in makings its decision today.11

¶37 The court concluded, "I do order the termination of

the parental rights . . . ." After ordering the termination,

the court addressed B.W. and stated:

I will tell you, [B.W.], I agonized over this decision considerably, and this was not an easy decision. This was a close call, but in the end I really think that [Bob's] need for stability is paramount, and as you continue to do well, I trust that you and [D.D.] will do the right thing for [Bob] to continue to have a relationship with you.

I just hope and pray that this adverse decision doesn't knock you off your sobriety path.

¶38 B.W. filed a post-disposition motion to withdraw his

no contest plea to grounds for termination. Specifically, B.W.

asserted that the plea colloquy was deficient and his no contest

plea "was not knowing, intelligent, and voluntary because the

court failed to properly explain the statutory standard it would

apply at disposition during the plea hearing." In his motion,

B.W. argued:

11 The court considered each of the statutory factors as required under Wis. Stat. § 48.426(3) in making its requisite findings, namely: Bob's likelihood of adoption by D.D., see § 48.426(3)(a); Bob's age and health at disposition, see § 48.426(3)(b); Bob's substantial relationship with B.W., see § 48.426(3)(c); Bob's wishes to live with B.W. or D.D. see 48.426(3)(d); how long Bob had already been separated from his birth parents, see § 48.426(3)(e); and Bob's stability and permanency interests, see § 48.426(3)(f).

23 No. 2022AP1329

[B]ecause the court told [B.W.] that he had the same rights at disposition that he had during the grounds phase at the []plea hearing in this matter, the court informed [B.W.] that the State would have to demonstrate by "clear, convincing, and satisfactory evidence to a reasonable certainty" that termination of [B.W.'s] parental rights was appropriate. ¶39 B.W. argued that "[t]he court's explanation improperly

described the statutory standard which it was required to rely

on at disposition, as the statutory standard was what was in

[Bob's] best interests and not whether there was proof by clear

and convincing evidence that termination was in [Bob's] best

interests." Finally, B.W. claimed the circuit court also

misadvised him of the statutory standard it would rely on at

disposition during the adjourned initial appearance, because the

court told B.W. at that hearing that "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." B.W. argued that since the circuit court "did

not explain to B.W. that his son's best interests" were the

"driving factor," the "most important factor," or even the

"prevailing" factor at disposition, B.W. did not know that the

circuit court would base its decision at disposition "primarily

on what it found was in B.W.'s son's best interest," so B.W. was

entitled to an evidentiary hearing on his motion to withdraw his

no contest plea.

¶40 A different circuit court judge held a hearing on

B.W.'s post-disposition motion. The court reviewed the transcript and permitted both parties to make arguments on the

sufficiency or deficiency of the plea colloquy. At the 24 No. 2022AP1329

conclusion of the arguments, the court noted that the circuit

court judge who took the plea had repeatedly

referenc[ed] the correct standard, that being just the best interests of the child. So that's a very -– I think that's a very direct reference as to what the standard is, despite what might have been in [the judge's] head, and we're not going to look into what her thought process is or what she actually believed was to happen at disposition. Rather, it's what she communicated to [B.W.] here.

¶41 The court found that the circuit court judge who took

the plea had affirmatively referenced the best interests of the

child standard at the plea hearing:

We have not even a direct statement by the judge to [B.W.] that, when we get to disposition, the State [will] have to prove by clear and convincing evidence that termination of your rights is in in your child's best interest. . . . [S]he says it in a more oblique way, not directly at all, and then as I've referenced here . . . she emphasizes, "we're talking about the best interests of the child at the dispositional hearing." And I think, in looking at the standard here and what [B.W.] needs to show, and considering that the rest of the plea colloquy was appropriate, and there was no other error in the plea colloquy, other than, again, this oblique reference to what [B.W.] may have at the dispositional hearing, I do not find that [B.W.] has met his burden to show that there was evidence here that he did not understand what was being said to him at the plea colloquy.

¶42 The court concluded that the plea colloquy was

sufficient and didn't "think there [was] anything here that

rises to the point of really confusion or mixing up the burdens

or overlapping the burden from the grounds phase to the best

interests phase," but that the court's "emphasis here on best interests at disposition was clear enough." The court

25 No. 2022AP1329

determined that B.W. failed to make a prima facie showing that

his no contest plea was not knowing, intelligent, and voluntary,

and denied B.W.'s motion.

¶43 B.W. appealed.12 On appeal, B.W. also raised a second

issue: "Did the circuit court erroneously exercise its

discretion in finding that termination of B.W.'s parental rights

was in his son's best interests when it inadequately considered

whether severance of their relationship would be harmful?" The

court of appeals affirmed the circuit court's conclusion that

B.W. failed to meet his prima facie burden and was not entitled

to an evidentiary hearing nor to withdraw his plea.

Highlighting the circuit court's plea colloquy in the record,

the court of appeals concluded:

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).

B.W., No. 2022AP1329, at ¶17.

¶44 The court of appeals further stated:

At no point, however, did the circuit court describe the State's burden in the grounds phase as a "right."

12The court of appeals stayed its decision pending this court's decision in State v. A.G., 2023 WI 61, 408 Wis. 2d 413, 992 N.W.2d 75. After ordering supplemental briefing from the parties following the decision's release, the court of appeals then issued its ruling affirming the circuit court's decision.

26 No. 2022AP1329

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.

Id., at ¶19.

¶45 The court of appeals concluded that the record did not

reflect that the circuit court advised 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." Id., at

¶17. Instead, the court of appeals determined that 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" and that this colloquy "complie[d] with the statutory

requirement set forth in Wis. Stat. § 48.426(2)." Id.

¶46 Regarding B.W.'s argument that the circuit court

erroneously exercised its discretion in relying on the adoptive parent's testimony, the court of appeals relied on Margaret H.,

234 Wis. 2d 606. In Margaret H., this court concluded that

"[i]n its discretion, the [circuit] court may afford due weight

to an adoptive parent's stated intent to continue visitation

with family members." 234 Wis. 2d 606, ¶29. The court of

appeals determined that 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." B.W.,

27 No. 2022AP1329

No. 2022AP1329, at ¶27. B.W. petitioned this court for review,

which we granted.

II. STANDARD OF REVIEW

¶47 The court generally employs the plea withdrawal

framework from criminal law cases to plea withdrawals in TPR

cases. See Waukesha Cnty. v. Steven H., 2000 WI 28, ¶42, 233

Wis. 2d 344, 607 N.W.2d 607 ("In prior cases the analysis set

forth in State v. Bangert, 131 Wis. 2d 246, 274-75, 389

N.W.2d 12 (1986), relating to a circuit court's acceptance of a

guilty plea in a criminal case, has been used to evaluate a

challenge to the proceedings mandated by Wis. Stat. § 48.422.").

"A plea not entered knowingly, voluntarily, and intelligently

violates fundamental due process, and a defendant therefore may

withdraw the plea as a matter of right." State v. Cross, 2010

WI 70, ¶14, 326 Wis. 2d 492, 786 N.W.2d 64 (quoting State v.

Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906).

Whether B.W. knowingly, voluntarily, and intelligently entered a

no contest plea presents a question of constitutional fact that this court reviews independently. Brown, 293 Wis. 2d 594, ¶19

(citing State v. Trochinski, 2002 WI 56, ¶16, 253 Wis. 2d 38,

644 N.W.2d 891). Whether B.W. has shown that the plea colloquy

was deficient such that the circuit court violated its duty

under Wis. Stat. § 48.426 is a question of law that this court

reviews independently. Id., ¶21. Whether B.W. has presented a

prima facie case by pointing to deficiencies in the plea colloquy and sufficiently alleging that he did not know or

understand information that should have been provided in the 28 No. 2022AP1329

colloquy is a question of law we review independently. Oneida

Cnty. Dep't of Social Servs. v. Therese S., 2008 WI App 159, ¶7,

314 Wis. 2d 493, 762 N.W.2d 122. Generally, with plea

withdrawal motions alleging a defect in the plea colloquy, the

violation "should be apparent from the record." State v.

Hampton, 2004 WI 107, ¶61, 274 Wis. 2d 379, 683 N.W.2d 14. "We

accept the circuit court's findings of historical and

evidentiary facts unless they are clearly erroneous but we

determine independently whether those facts demonstrate that the

defendant's plea was knowing, intelligent, and voluntary."

Brown, 293 Wis. 2d 594, ¶19.

¶48 "We decide any questions of law which may arise during

our review of an exercise of discretion independently of the

circuit court and court of appeals." LeMere v. LeMere, 2003 WI

67, ¶14, 262 Wis. 2d 426, 663 N.W.2d 789 (quoting King v. King,

224 Wis. 2d 235, 248-49, 590 N.W.2d 480 (1999)). But "the

analyses of the circuit court and the court of appeals benefit

us in our independent review." Id. III. ANALYSIS

¶49 B.W. argues to this court that because the circuit

court's plea colloquy was defective, he is entitled to an

evidentiary hearing of his motion to withdraw his no contest

29 No. 2022AP1329

plea.13 For purposes of making his prima facie showing that the

circuit court violated its mandatory duties, B.W. asserts that

13Counsel for B.W. acknowledged at oral argument that, for purposes of making a prima facie case, the focus must be on the circuit court's alleged mistake in the plea colloquy provided at the plea hearing, not the circuit court's statements at the initial appearance. However, counsel for B.W. argues that the circuit court's statements from the initial appearance were problematic as well, and further bolster B.W.'s "reasonable interpretation of the record" which helps make B.W.'s prima facie case. According to B.W.'s counsel at oral argument,

I think the fact that the court also made this mistake at the initial appearance adds to the reasonableness of that assessment and the push toward him making a prima facie case. At the end of the day I understand that the actual mistake has to happen at the plea colloquy, and for the reasons here I do think that that mistake did take place.

Oral argument in State v. B.W., No. 2022AP1329, held Mar. 19, 2024, available on WisconsinEye https://wiseye.org/2024/03/19/ wisconsin-supreme-court-state-v-b-w/ (argument of Attorney Chris Sobic, at 27:40).

The State "acknowledges that the trial court did misadvise B.W. at the initial appearance," but contends that "this same error was not repeated during the plea colloquy" and "expansion beyond the actual plea colloquy . . . would cause absurd results."

Even assuming the initial appearance language is incorrect, the plea colloquy exchange is what we review to determine whether the plea colloquy is sufficient and complies with the statute. See, e.g., State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986); Waukesha Cnty. v. Steven H., 2000 WI 28, ¶¶42-44, 233 Wis. 2d 344, 607 N.W.2d 607; State v. Negrete, 2012 WI 92, ¶19, 343 Wis. 2d 1, 819 N.W.2d 749; see also A.G., 408 Wis. 2d 413, ¶41 (Hagedorn, J., concurring) (citing State v. Clark, 2022 WI 21, ¶¶13–16, 401 Wis. 2d 344, 972 N.W.2d 533) ("[A] prima facie showing will generally focus on the plea colloquy itself to determine whether certain requirements were not followed.").

30 No. 2022AP1329

the plea colloquy was defective because the circuit court

"miscommunicated to B.W. that there was a burden of proof at

disposition." B.W. argues that he is entitled to an evidentiary

hearing at which the State would have the burden to prove that

B.W.'s no contest plea was nonetheless entered knowingly,

intelligently, and voluntarily. B.W. also alleges that the

circuit court erroneously exercised its discretion at

disposition because it "improperly relied on the adoptive

parent's assurance that she would allow B.W. to continue to

visit with his son in deciding to terminate his parental

rights."

¶50 The State contends that the circuit court's plea

colloquy with B.W. "was not defective because it never mentions

any burden of proof at disposition," so "B.W. was not

misadvised" at the plea hearing. The State asserts that B.W.

failed to make a prima facie case showing that his plea was not

knowing, intelligent, and voluntary. Finally, the State

dispenses with B.W.'s argument that the circuit court did not properly exercise its discretion, "as the court clearly gave

adequate consideration of and weight to each of the factors

found in Wis. Stat. § 48.426(3)," so "[t]he Court's decision to

terminate the rights of B.W. is well reasoned and its exercise

of discretion is proper." Accordingly, the State asks that the

court affirm the court of appeals' decision which affirmed the

circuit court. ¶51 We conclude that B.W. has not made the prima facie

showing required to withdraw his no contest plea. The circuit 31 No. 2022AP1329

court correctly informed B.W. of the statutory standard at

disposition: the best interests of the child. Wis. Stat.

§ 48.426(2). We further conclude that the circuit court did not

erroneously exercise its discretion when it considered D.D.'s

testimony. In its decision to terminate B.W.'s parental rights,

the circuit court appropriately weighed the required § 48.426(3)

factors, including this testimony, and determined termination

was in Bob's best interests.

A. Plea Withdrawal

¶52 "It has long been recognized that under the Due

Process Clause, a defendant's . . . no contest plea must be

knowingly, intelligently, and voluntarily entered." State v.

Pegeese, 2019 WI 60, ¶21, 387 Wis. 2d 119, 928 N.W.2d 590

(citing State v. Bollig, 2000 WI 6, ¶15, 232 Wis. 2d 561, 605

N.W.2d 199 (citing another source)); Bangert, 131 Wis. 2d at

257; Wis. Stat. § 971.08. "Wisconsin imposes certain statutory

and common law duties on circuit courts to ensure that a

defendant's plea is given knowingly, intelligently, and

voluntarily." Pegeese, 387 Wis. 2d 119, ¶21; see also State v. Taylor, 2013 WI 34, ¶30, 347 Wis. 2d 30, 829 N.W.2d 482 ("The

duties established . . . in Bangert, and in subsequent cases are

designed to ensure that a defendant's plea is knowing,

intelligent, and voluntary."). "The circuit court must engage

the parent in a colloquy to ensure that the plea is knowing,

voluntary, and intelligent." Brown Cnty. Dep't Human Servs. v. Brenda B., 2011 WI 6, ¶35, 331 Wis. 2d 310, 795 N.W.2d 730.

32 No. 2022AP1329

"This colloquy is governed by the requirements of Wis. Stat.

§ 48.422(7) and notions of due process." Id., ¶35; (citing

Steven H., 233 Wis. 2d 344, ¶¶25, 39.

¶53 Wisconsin Stat. § 48.422 outlines what a court must

evaluate when conducting a plea colloquy in a TPR. Before the

circuit court can "accept[] an admission of the alleged facts in

the petition," it must:

(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 and alert all unrepresented parties to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to them.

(bm) Establish whether a proposed adoptive parent of the child has been identified . . .

(br) Establish whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of s. 48.63(3)(b)5. Upon a finding of coercion, the court shall dismiss the petition.

(c) Make such inquiries as satisfactorily establish that there is a factual basis for the admission.

§ 48.422(7); see also Steven H., 233 Wis. 2d 344, ¶39; Therese

S., 314 Wis. 2d 493, ¶5.

¶54 In Therese S., the court of appeals concluded:

[I]n order for the court's explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that "[t]he best interests of the child shall be the prevailing factor

33 No. 2022AP1329

considered by the court in determining the disposition. . . . ." Therese S., 314 Wis. 2d 493, ¶16 (emphasis added).

¶55 The court is not required to "inform parents in detail

of all potential outcomes" in order to ensure a plea is entered

knowingly, intelligently, and voluntarily. Id., ¶17. The court

of appeals agreed that requiring a circuit court to inform

parents in detail of all potential outcomes would be "unduly

burdensome." Id. But, "at the very least, a court must inform

the parent" that "the best interests of the child shall be the

prevailing factor considered by the court in determining the

disposition." Id., ¶16; see also Brenda B., 331 Wis. 2d 310,

¶56.

¶56 "In addition, the person entering the no contest plea

must have knowledge of the constitutional rights he or she is

giving up by making the plea." Kenosha Cnty. Dep't Human Servs.

v. Jodie W., 2006 WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845.

This comports with due process. As to due process, "whenever a

parent wishes to plead no contest to grounds for involuntary

termination, the parent must be provided with sufficient information to evaluate the stakes involved." Brenda B., 331

Wis. 2d 310, ¶41; see also Therese S., 314 Wis. 2d 493, ¶10.

"The parent must be given sufficient information to understand

the rights that could be lost if, during the second phase of the

proceedings, the court decides to terminate parental rights."

Brenda B., 331 Wis. 2d 310, ¶41.

34 No. 2022AP1329

¶57 "If the court fails to fulfill one of the duties

mandated . . . under the Bangert line of cases (a 'Bangert

violation'), the defendant may move to withdraw his plea."

Taylor, 347 Wis. 2d 30, ¶32 (citing Bangert, 131 Wis. 2d at

274). A party filing a Bangert post-disposition motion for a

TPR plea, "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.

¶58 As a result, B.W. must (1) "make a prima facie showing

that the circuit court violated its mandatory duties," and (2)

"allege [that B.W.] did not know or understand the information

that should have been provided at the hearing." Therese S., 314

Wis. 2d 493, ¶6; see also Brown, 293 Wis. 2d 594, ¶39; Steven

H., 233 Wis. 2d 344, ¶42; Bangert, 131 Wis. 2d at 274. "A

[parent] attempting to make this prima facie showing must point

to deficiencies in the plea hearing transcript; conclusory

allegations are not sufficient." Taylor, 347 Wis. 2d 30, ¶32 (citing Cross, 326 Wis. 2d 492, ¶19). "[F]or a motion to be

sufficient, it must allege "who, what, where, when, why, and

how." State v. Sulla, 2016 WI 46, ¶36, 369 Wis. 2d 225, 880

N.W.2d 659 (quoting State v. Allen, 2004 WI 106, ¶23, 274

Wis. 2d 568, 682 N.W.2d 433). If the parent's motion

demonstrates a prima facie violation, "the court must hold a

post-disposition evidentiary hearing at which the state is given an opportunity to show by clear and convincing evidence that the

[parent's] plea was knowing, intelligent, and voluntary despite 35 No. 2022AP1329

the identified inadequacy of the plea colloquy." Brown, 293

Wis. 2d 594, ¶40 (citing Bangert, 131 Wis. 2d at 274).

¶59 Wisconsin Stat. § 48.426(2) mandates that, "The best

interests of the child shall be the prevailing factor considered

by the court in determining the disposition of all proceedings

under this subchapter." Courts are required to use this

standard at disposition when determining whether to terminate

parental rights.

¶60 B.W.'s argument before us is that the plea colloquy

was defective because the court erred when it explained that the

"same trial rights" that applied at grounds would extend to

disposition and the burden of proof at grounds was one of those

rights. He says that he believed the State's clear and

convincing burden of proof applicable at grounds, was such a

"trial right" that would apply at disposition. B.W. argues that

"the requirement that the State prove grounds by clear and

convincing evidence is a trial right, even if the court did not

specifically call it one," citing to Brenda B., 331 Wis. 2d 310, ¶43 ("It is important that the parent understand that by

pleading no contest to a ground for termination, the parent is

waiving the right to make the petitioner prove unfitness by

clear and convincing evidence."). He avers this demonstrates a

prima facie showing that his plea was not knowing, intelligent

and voluntary so as to warrant an evidentiary hearing.

¶61 In order to analyze whether B.W. has made a prima facie showing, we turn to the language of the plea colloquy.

See State v. Negrete, 2012 WI 92, ¶¶19-20, 343 Wis. 2d 1, 819 36 No. 2022AP1329

N.W.2d 749 (outlining the Bangert burden-shifting procedure for

plea withdrawals "predicated on a defendant making 'a pointed

showing' of an error in the plea colloquy by reference to the

plea colloquy transcript") (quoting another source); see also

State v. A.G., 2023 WI 61, ¶41, 408 Wis. 2d 413, 992 N.W.2d 75

(Hagedorn, J., concurring) (citing State v. Clark, 2022 WI 21,

¶¶13–16, 401 Wis. 2d 344, 972 N.W.2d 533 ("[A] prima facie

showing will generally focus on the plea colloquy itself to

determine whether certain requirements were not followed.")).

In so doing, we see that the record does not support B.W.'s

arguments. Instead, the record demonstrates that the circuit

court properly explained the procedure to B.W., first outlining

the burden of proof applicable at the grounds phase:

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 [right] 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?

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

37 No. 2022AP1329

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. (Emphasis added.)

¶62 In its plea colloquy, the circuit court said, "[I]t's

the State's burden to prove by clear, convincing, and

satisfactory evidence to a reasonable certainty that the grounds

exist." The record reflects that the court was referring to the

burden of proof at the grounds phase, not the dispositional

phase. The court then clearly explained to B.W., three times,

that the "best interests of the child" standard would apply at

disposition.

¶63 Regarding disposition, unlike the grounds phase, no

burden of proof was ever stated, but rather the statutory

standard of "best interests of the child" was repeatedly spoken:

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

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

[B.W.] Yes. ¶64 The court further explained the process:

38 No. 2022AP1329

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?

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?

¶65 A parent who pleads no contest to the grounds phase,

still retains the right to contest termination at the separate

and distinct disposition phase. In contesting termination, B.W.

does retain "rights." A closer look at the record demonstrates

that, while the court did explain that B.W. would have the "same

rights" at the dispositional phase, the court never referred to the burden of proof at the grounds phase as a "right." Instead,

the court used the term "right(s)," precisely and specifically

referring to B.W.'s procedural and constitutional rights: the

right to a trial (to a jury or a judge), the right to call and

cross-examine witnesses, the right to subpoena witnesses, and

the right to testify or to remain silent. In short, the record reflects that the circuit court did not characterize the clear

39 No. 2022AP1329

and convincing burden of proof applicable at grounds, as a trial

right that would be applicable at disposition. See A.G., 408

Wis. 2d 413, ¶38 (lead opinion) (circuit court characterized the

clear and convincing burden of proof as a right, but our court

nonetheless determined that the plea was knowing, free, and

voluntary).

¶66 In short, B.W.'s arguments are unsupported by the

record. The plea colloquy reflects that the court never used

the term "burden of proof" when discussing the disposition

phase. When discussing the standard the court would apply at

disposition, the court repeatedly stated the statutory standard

of "best interests of the child." Separately, the court

properly used the term "right" when referring to certain

specific rights, but it did not use that term when referring to

the burden of proof applicable to the grounds phase.

¶67 B.W. fails to make a prima facie showing under Bangert

that the circuit court's reference to "trial rights" meant that

the clear, satisfactory, and convincing burden of proof applicable at the grounds phase, also applied at the disposition

phase. Instead, the court repeatedly stated the correct

standard at disposition——the best interests of the child. The

circuit court's colloquy complied with the language of the

statute. Wisconsin Stat. § 48.426(2) states, "The best

interests of the child shall be the prevailing factor" at

disposition. Therese S., 314 Wis. 2d 493, ¶16 ("Additionally, we conclude that in order for the court's explanation of

potential dispositions to be meaningful to the parent, the 40 No. 2022AP1329

parent must be informed of the statutory standard the court will

apply at the second stage. That is, the court must inform the

parent that '[t]he best interests of the child shall be the

disposition. . . .'"). At the plea hearing, the court said that

the standard at disposition would be the child's "best

interest." Stating the statutory language, "best interests of

the child," is sufficient. By the court stating the applicable

statutory standard for disposition, "the best interests of the

child," the court has properly advised the parent of "sufficient

information to evaluate the stakes involved." Brenda B., 331

Wis. 2d 310, ¶41; see also Jodie W., 293 Wis. 2d 530, ¶25.

¶68 The plea colloquy is sufficient. B.W.'s motion to

withdraw his no contest plea is not entitled to an evidentiary

hearing.

B. Reliance on D.D.'s Testimony.

¶69 At disposition, the circuit court is required to

consider the factors set forth in Wis. Stat. § 48.426(3). The

record demonstrates that the circuit court properly complied with that statute and exercised its discretion in considering

the statutory factors at disposition. In so doing, it

referenced the potential future contact between Bob and B.W.,

given the fact that B.W. has another child with D.D., the

proposed adoptive parent. B.W. may disagree with the circuit

court's conclusions about termination, but that does not constitute reversible error.

41 No. 2022AP1329

¶70 A circuit court's decision to terminate parental

rights is discretionary. Margaret H., 234 Wis. 2d 606, ¶27;

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.

Dep't of Human Servs. v. Mable K., 2013 WI 28, ¶39, 346

Wis. 2d 396, 828 N.W.2d 198. "When reviewing a trial court's

exercise of discretion, we are permitted to search the record

for reasons to sustain such a determination." Sulla, 369

Wis. 2d 225, ¶23. Finally, "this court will affirm a

discretionary decision by a circuit court as long as the court

did not erroneously exercise its discretion." Nat'l Auto

Truckstops, Inc. v. DOT, 2003 WI 95, ¶12, 263 Wis. 2d 649, 665

N.W.2d 198. The record demonstrates that the court properly

used its discretion and applied each of the statutory factors.

See Wis. Stat. § 48.426(3); see also ¶36 n.11, supra. ¶71 The court found: (1) Bob was "likely to be adopted

post-termination" by D.D., who was "licensed and committed" to

adopting Bob, Wis. Stat. § 48.426(3)(a); (2) "[a]t the time of

removal, [Bob] was not in good mental health, given the really

difficult experiences that he had. Today he's still working

through those experiences, but overall he is thriving, and

that's an important thing that the Court doesn't want to disrupt," § 48.426(3)(b); (3) Bob "does have a substantial

relationship with [B.W.]" but "I don't think he has a 42 No. 2022AP1329

substantial relationship with the mother or any extended family

members." While [t]here's always some harm in severing legal

relationships, but I think that harm will be mitigated by the

coparenting circumstances I've just described," § 48.426(3)(c);

(4) "[Bob's] wishes are complex as can be understood, but he

certainly is bonded with [D.D.], . . . is living with his half-

sibling . . . thriving in that home, and he has recognized those

benefits," § 48.426(3)(d); (5) Bob "has been separated from his

parents since 2019, so a significant chunk of his young life,"

§ 48.426(3)(e); and (6) "most fundamentally, it's the stability

and permanency [for Bob] that the Court is seeking in making its

decision today," § 48.426(3)(f).

¶72 B.W. nonetheless argues that State v. Margaret H., 234

Wis. 2d 606, supports his argument that the circuit court

erroneously exercised its discretion when it "concluded that any

harm to Bob caused by terminating his legal relationship with

B.W. was mitigated because the court expected D.D. to continue

to allow B.W. to visit with Bob." B.W. argues that in relying on the adoptive parent's "promise," "the court failed to

consider that D.D.'s assurance that she would allow for

continued contact between B.W. and Bob was unenforceable."

According to B.W., "the court hinged its entire consideration of

factor three——whether it would be harmful to Bob to sever his

relationship with B.W.——on D.D.'s unenforceable promise." B.W.

refers to D.D.'s testimony that post-termination, she "would still expect [B.W.] to be in full contact" with Bob and that "as

43 No. 2022AP1329

long as it's safe, [it's] fine" that the relationship between

B.W. and Bob continue. But, what the circuit court stated is:

[G]iven that you and [D.D.] have a child in common, you guys already co-parent, 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 meaningful co-parenting even if the legal relationship is severed, and I found [D.D.'s] testimony to be credible that she would do that.

¶73 The record does not support B.W.'s argument that

D.D.'s comments were a "promise." In fact, in Margaret H., we

said that while a circuit court "may within its discretion

consider [an adoptive parent's] good faith promise" regarding

post-termination visitation arrangements, but a court should not

"hinge its determination on that legally unenforceable promise."

Margaret H., 234 Wis. 2d 606, ¶30. D.D.'s comments that she

"would still expect [B.W.] to be in full contact" with Bob and

that "as long as it's safe, [it would be] fine" that the

relationship between B.W. and Bob continue, were referenced by

the court, but the record does not reflect that the court considered this to be a promise, unenforceable or otherwise.

¶74 B.W.'s reliance on Margaret H. is misplaced. In

Margaret H., the circuit court found rights to terminate the

birth mother's parental rights. At disposition, the foster

mother "testified that she intended to foster the twins'

relationship with their birth family and that she envisioned

continued visitation even upon adoption." Id., ¶9. The circuit court dismissed the termination petition referencing the

44 No. 2022AP1329

"evidence on both sides of the issue on whether or not the

relationship is substantial" finding it "would be harmful to

these boys to sever that relationship." Id., ¶10. The circuit

court noted that Margaret H. "has never wavered in her desire or

her love for her grandchildren" and "she has made every attempt

to put herself in a position and at this time I just can't take

that away from her." Id.

¶75 The court of appeals reversed and remanded. Our court

affirmed and remanded "for a consideration of all the relevant

factors" and application of the "best interests of the child"

standard. Id., ¶¶31-35. We stated:

In its discretion, the court may afford due weight to an adopted parent's stated intent to continue visitation with family members, although we cannot mandate the relative weight to be placed on this factor.

In this case, the court may certainly choose to examine the probability that [the adoptive parent] will be faithful to her promise, at the same time bearing in mind that such promises are legally unenforceable once the termination and subsequent adoption are complete. The circuit court may within its discretion consider her good faith promise, but it should not be bound to hinge its determination on that legally unenforceable promise. Id., ¶¶29-30 (citation omitted). We concluded that the circuit

court "failed to consider all of the relevant statutory

factors." Id., ¶31. The best interests of the child is the

polestar of all determinations under ch. 48, the Children's Code

[1997-98]." Id., ¶¶33, 36.

¶76 B.W. interprets Margaret H. as requiring a circuit court to consider that promises by an adoptive parent are

45 No. 2022AP1329

legally unenforceable, and presumably to do so on the record.

Margaret H. requires that the court not "hinge" its decision on

one factor but instead consider each statutory factor. While

"[t]he circuit court may within its discretion consider her good

faith promise" to allow contact and visitation with family, it

should not "hinge its determination on that legally

unenforceable promise." Margaret H., 234 Wis. 2d 606, ¶30

(emphasis added).

¶77 Unlike in Margaret H., the circuit court here

considered each statutory factor in Wis. Stat. § 48.426(3) and

did not "exclusively focus" on the harm of the legal severance

of the relationship between B.W. and Bob or D.D.'s

"unenforceable promise." The record "reflect[s] adequate

consideration of and weight to each factor." Margaret H., 234

Wis. 2d 606, ¶35. The third statutory factor, harm of legal

severance, was but one factor the circuit court considered. The

court also considered and evaluated the other statutory factors.

The court complied with its mandatory duty and afforded weight to each factor, utilizing the statutory standard of "best

interests of the child."

¶78 The court's decision to "examine the probability" of

D.D.'s "good faith promise" lies within its discretionary

domain. Requiring circuit courts to say on the record such

things as, "I know this promise is unenforceable, but," would be

requiring circuit courts to use "magic words" to exercise discretion appropriately. "This court strongly disfavors magic

words." A.G., 408 Wis. 2d 413, ¶29; see also Marathon Cnty. v. 46 No. 2022AP1329

D.K., 2020 WI 8, ¶66, 390 Wis. 2d 50, 937 N.W.2d 901 (Rebecca

Grassl Bradley, J., concurring) ("We do not impose a 'magic

words' requirement in the law and this court has repeatedly

rejected them."); State v. Lepsch, 2017 WI 27, ¶36, 374

Wis. 2d 98, 892 N.W.2d 682 (rejecting in context of a circuit

court inquiring about juror bias); State v. Wantland, 2014 WI

58, ¶33, 355 Wis. 2d 135, 848 N.W.2d 810 (rejecting in context

of withdrawing consent under the Fourth Amendment); Elections

Bd. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 654, 669-70,

597 N.W.2d 721 (1999) (rejecting in context of what is required

to "express advocacy"); Patchak v. Zinke, 583 U.S. ___, 138

S. Ct. 897, 905 (2018) (noting that the United States Supreme

Court refrains from reading statutes to "incant magic words"

(quoted source omitted)).

¶79 B.W. identifies nothing in the record which would

demonstrate that the circuit court believed this co-parenting

relationship was enforceable. The court did not "order" any

such future co-parenting. In fact, the words of the court were that it "trusted" that the co-parenting may continue: "I'm

trusting that you guys will continue to do so." Using the word

"trust" surely indicates that the court knew it could not demand

they continue co-parenting as that would be unenforceable.

¶80 B.W. argues that "the circuit court's notion of a 'co-

parenting' relationship of Bob between D.D. and B.W. improperly

characterized what occurs following termination of parental rights, erroneously suggesting that a substantive ongoing

parenting relationship between B.W. and Bob would occur." But 47 No. 2022AP1329

nothing precludes a circuit court from considering the facts of

the case, which here reflect that B.W. and the proposed adoptive

parent have another child in common, and D.D. would like to see

contact continue with B.W. for that child and Bob. The statute

does not limit a circuit court from considering whether an

adoptive parent might allow a continuing relationship with the

child and the child's biological family. In fact, the statute's

language, "including but not limited to,"14 recognizes that the

court may consider matters apart from the factors specifically

listed. Wis. Stat. § 48.426(3). The record reflects that the

court considered the unique facts present.15 The proposed

See Wis. Stat. § 48.426(3) ("In considering the best 14

interests of the child under this section the court shall consider but not be limited to the following" list, including "likelihood of adoption," and "whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever those relationships" (emphasis added).); Margaret H., 234 Wis. 2d 606, ¶29 ("[W]e note that Wis. Stat. § 48.426(3)(a) requires only that the circuit court examine the impact of a legal severance on the broader relationships existing between a child and his or her family. In its discretion, the court may afford due weight to an adoptive parent's stated intent to continue visitation with family members, although we cannot mandate the relative weight to be placed on this factor.").

Wisconsin Stat. § 48.426(3)(c) states that the court 15

shall consider "[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 those relationships," but the court is not limited to following only the statutory factors:

To the extent that the court of appeals' statement may be interpreted as insisting that the circuit court at least consider [the adoptive parent's] promise to continue contact between the twins and their birth family, we note that Wis. Stat. 48.426(3)(c) requires 48 No. 2022AP1329

adoptive parent and B.W. were co-parenting another child they

had in common. The court, much like at the grounds phase, was

encouraging to B.W.16 But encouraging words should not be

mistaken for an erroneous exercise of discretion. The court's

conclusion to terminate B.W.'s parental rights to Bob was based

on a consideration of each statutory factor. The court

considered the best interests of Bob as paramount and although a

"close call" and "difficult decision," the court ultimately

concluded that B.W.'s parental rights to Bob must be terminated.

¶81 The circuit court did not "improperly rely" on D.D.'s

"promise," as B.W. argues. Here, the circuit court may have

referenced the facts from testimony in the hope that there could

be some continued connection between B.W. and Bob, and that

recognition is not prohibited. The record reflects that the

only that the circuit court examine the impact of a legal severance on the broader relationships existing between a child and his or her family. In its discretion, the court may afford due weight to an adoptive parent's stated intent to continue visitation with family members, although we cannot mandate the relative weight to be placed on this factor.

In this case, the court may certainly choose to examine the probability that [the adoptive parent] will be faithful to her promise, at the same time bearing in mind that such promises are legally unenforceable once the termination and subsequent adoption are complete. The circuit court may within its discretion consider her good faith promise, but it should not be bound to hinge its determination on that legally unenforceable promise.

Margaret H., 234 Wis. 2d 606, ¶¶29-30. 16 See ¶14, supra.

49 No. 2022AP1329

court reviewed the facts specific to this case, applied the

statutory factors, and tried to encourage B.W. to continue with

positive steps, even though it was in Bob's best interests to

terminate B.W.'s parental rights. As the court noted, while

"[t]here's always some harm in severing legal

relationships . . . that harm will be mitigated by the

coparenting circumstances." D.D. and B.W. co-parent one child,

and unlike most TPR cases, these unique circumstances present

the opportunity for B.W. to see Bob in the future. B.W.'s

argument that the circuit court "did not consider that D.D.'s

testimony that she would allow B.W. to continue to have contact

with Bob was an unenforceable promise," thus fails.

¶82 In short, the circuit court properly exercised its

discretion at the dispositional hearing. The circuit court

"examine[d] the relevant facts" of this case, "applie[d] a

proper standard of law," and "using a demonstrated rational

process" of applying the statutory factors, "reach[ed] a

conclusion that a reasonable judge could reach." Mable K., 346 Wis. 2d 396, ¶39. The record does not support B.W.'s assertion

that the circuit court believed D.D.'s promise was enforceable.

Id. "The ultimate determination of whether to terminate

parental rights is discretionary with the circuit court."

Margaret H., 234 Wis. 2d 606, ¶27. We affirm the circuit

court's discretionary decision to terminate B.W.'s parental

rights, as the circuit court properly exercised its discretion. ¶83 The "polestar" determination for the circuit court at

disposition, as was explained in the plea colloquy, was the best 50 No. 2022AP1329

interests of the child. Repeatedly throughout its colloquy with

B.W., the circuit court informed B.W. that at disposition "the

court would have to decide whether [termination was] actually in

[Bob's] best interest." The circuit court acknowledged that the

best interests of Bob were paramount, reminding B.W. at

disposition that while B.W.'s progress was commendable, the

court's "focus today has to be on what is in [Bob's] best

interest as opposed to [B.W.'s] best interest." The court did

not erroneously consider D.D.'s testimony.

IV. CONCLUSION

¶84 B.W. argues that the plea colloquy is defective

satisfactory, and convincing burden of proof applied at

disposition. He argues that the burden of proof is a trial

right and when the court incorrectly advised B.W. that he would

have "all those same trial rights" at disposition, the court

misinformed him that this burden of proof, rather than the "best

interests of the child" standard, would apply at disposition.

B.W. also argues that at disposition, the circuit court

improperly relied on the proposed adoptive parent's assurance

that she would allow B.W. to continue to visit and "co-parent"

¶85 We conclude that B.W. failed to make a prima facie

hearing, the circuit court properly informed B.W. that the prevailing factor at disposition is the statutory

51 No. 2022AP1329

§ 48.426(2).

¶86 We also conclude that at disposition, the circuit

court did not erroneously exercise its discretion by relying on

the proposed adoptive parent's testimony that post-termination,

she would allow B.W. to continue to visit with Bob and that they

would "co-parent." The court did not fail to consider that this

properly exercised its discretion, considering the testimony and

By the Court.—The decision of the court of appeals is

affirmed.

52 No. 2022AP1329.akz

¶87 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). B.W.

agrees and acknowledges "the statutory standard required in Wis.

Stat. § 48.426(2) does not set a burden of proof level" and

"[t]here is no burden of proof placed on the State at

disposition." The State agrees with B.W. that "'the polestar at

a dispositional hearing is simply the best interests of the

child' and no burden of proof exists." The court of appeals'

decision from which B.W. appeals, determined the same: "[t]he

plain language of [§ 48.426(2)] does not set a burden of proof."1

¶88 There is no burden of proof under Wis. Stat.

§ 48.426(2) at disposition because the statute does not provide

for one. And, considerations of procedural due process do not

require one. The legislature has demonstrated that it is quite

capable of stating a particular burden of proof, when one is

applicable. At disposition, the statute mandates the circuit

court to weigh the statutory factors2 and use its discretion to

1 As noted in the majority, this case comes to us on appeal from a decision by the court of appeals, State v. B.W., No. 2022AP1329, unpublished slip op., ¶15 (Wis. Ct. App. Sept. 12, 2023). 2 The statutory factors are:

(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.

1 No. 2022AP1329.akz

determine what disposition is in the child's best interests, but

makes no mention of a burden of proof requirement. A parent's

procedural due process concerns are also lessened at this stage

of the proceedings, because the court has already decided that

the grounds exist to find the parent unfit.

¶89 We too should definitively conclude that there is no

burden of proof, under Wis. Stat. § 48.426(2), at disposition.

I join the majority opinion, but concur and write separately to

provide clarity to our circuit courts that there is no burden of

proof required at disposition in termination of parental rights

proceedings under § 48.426(2). Rather, the court's decision at

the disposition phase is one within the sound and sole

discretion of the court: what is in the child's best interests.

I

¶90 Termination of parental rights ("TPR") cases are

governed by the Wisconsin Children's Code, Wis. Stat. ch. 48.

TPR cases follow a bifurcated procedure——grounds and

disposition. In recognition of the "profound consequences of

(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.

Wis. Stat. § 48.426(3). 2 No. 2022AP1329.akz

termination,"3 Wisconsin implemented a robust statutory scheme.

This statutory scheme protects familial interests through both

stages of a TPR proceeding. At grounds, where "the parent's

rights are paramount," the parent is afforded the "full

complement of procedural rights" because the burden of proof is

on the State to prove, by clear and convincing evidence, the

statutory grounds for termination exist. Sheboygan Cnty. Dep't

of Health & Human Servs. v. Julie A.B., 2002 WI 95, ¶24, 255

Wis. 2d 170, 648 N.W.2d 402; see also Evelyn C.R. v. Tykila S.,

2001 WI 110, ¶22, 246 Wis. 2d 1, 629 N.W.2d 768. Procedural due

process considerations also require this heightened burden of

proof during the grounds phase. Steven V. v. Kelley H., 2004 WI

47, ¶23, 271 Wis. 2d 1, 678 N.W.2d 856 (citing Santosky v.

Kramer, 455 U.S. 745, 747-48 (1982)).

¶91 At the grounds phase, the court conducts a fact-

finding hearing to determine whether grounds exist to terminate

parental rights. Wis. Stat. § 48.31(1). For grounds, the

legislature set forth a statutory burden of proof: The State must prove by clear and convincing evidence that at least one of

the statutory grounds for termination of parental rights exists.

Id.; see also Evelyn C.R., 246 Wis. 2d 1, ¶¶21-22; Waukesha

Cnty. Dep't Soc. Servs. v. C.E.W., 124 Wis. 2d 47, 60, 368

N.W.2d 47 (1985). If the court "determines that the facts

alleged in the petition have not been proven, the court

dismisses the petition." Julie A.B., 255 Wis. 2d 170, ¶26; Wis.

Sheboygan Cnty. Dep't of Health & Human Servs. v. Julie 3

A.B., 2002 WI 95, ¶23, 255 Wis. 2d 170, 648 N.W.2d 402.

3 No. 2022AP1329.akz

Stat. § 48.424(3). If instead a parent decides to not contest

the grounds phase of the TPR proceeding, the circuit court is

required to undergo a colloquy with the parent to ensure that

the parent understands the procedural rights that are being

given up. Wis. Stat. § 48.422(7). As part of that plea

colloquy, the court must explain and inform the parent not only

of the rights being given up, but also needs to describe the

potential dispositions that the court can consider in the second

phase of the hearing. § 48.422(7)(a).

¶92 If "grounds" are proven or pled, the court proceeds to

the second stage, the disposition phase under Wis. Stat.

§ 48.426(2). Just because the court accepts a no-contest plea

to the grounds phase of a termination of parental rights hearing

does not mean that the parent's rights are terminated. Instead,

the court proceeds to the second phase which allows for any

party to present evidence, including through testimony, to the

circuit court as to what disposition is in the best interest of

the child. Unlike the burden of proof required in the statute for the grounds phase, the legislature has not provided such

language in § 48.426(2), which governs the procedures for the

disposition phase. Instead, it is within the court's discretion

to determine, considering the statutory factors and the evidence

presented, whether termination is in "[t]he best interests of

the child." § 48.426(2); Evelyn C.R., 246 Wis. 2d 1, ¶23; State

v. Margaret H., 2000 WI 42, ¶¶33-34, 234 Wis. 2d 606, 610

N.W.2d 475. II

4 No. 2022AP1329.akz

¶93 Answering the question whether there is a burden of

proof at disposition requires us to analyze statutes. In

conducting our statutory interpretation analysis, we begin with

the language of the statute. State ex rel. Kalal v. Cir. Ct.

for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681

N.W.2d 110; Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56-58 (2012) (Supremacy-of-Text

Principle).4 In doing so, we are not "at liberty to disregard

the plain, clear words of the statute." Kalal, 271 Wis. 2d 633,

¶46 (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18

(1967)). "We assume that the legislature's intent is expressed

in the statutory language," as "[i]t is the enacted law, not the

unenacted intent, that is binding on the public." Id.; see also

Antonin Scalia, A Matter of Interpretation 17 (1997) ("It is the

law that governs, not the intent of the lawgiver . . . . Men may

intend what they will, but it is only the laws that they enact

which bind us."). "If this process of analysis yields a plain,

clear statutory meaning, then there is no ambiguity, and the statute is applied according to the ascertainment of its

meaning." Bruno v. Milwaukee Cnty., 2003 WI 28, ¶20, 260

Wis. 2d 633, 660 N.W.2d 656.

¶94 Wisconsin Stat. § 48.31(1) imposes a "clear and

convincing" burden of proof at grounds stating, "In this

4When interpreting a statute, the Supremacy-of-Text Principle states that "[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the term means." Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (2012).

5 No. 2022AP1329.akz

section, 'fact-finding hearing' means a hearing to determine if

the allegations in a petition under s. 48.13 or 48.133 or a

petition to terminate parental rights are proved by clear and

convincing evidence" (emphasis added). Comparatively, Wis.

Stat. § 48.426(2) governs disposition and states, "The best

interests of the child shall be the prevailing factor considered

by the court in determining the disposition of all proceedings

under this subchapter."

¶95 Unlike Wis. Stat. § 48.31(1), Wis. Stat. § 48.426(2)

contains no burden of proof. The language of § 48.426(2) is

plain and its interpretation straightforward. Simply, there is

no stated burden of proof at disposition of a TPR proceeding

because the plain text of the statute does not provide for one.

"[W]e ordinarily resist reading words or elements into a statute

that do not appear on its face." Bates v. United States, 522

U.S. 23, 29 (1997).

¶96 The legislature has aptly demonstrated its ability to

communicate when a burden of proof applies, as it did so for the grounds phase.5 In conducting a "text-based, plain-meaning

approach to statutory interpretation," the court must "guard

against" substituting the judiciary's subjective policy choices

for those of the legislature. State v. Hayes, 2004 WI 80, ¶112,

272 Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring). "It is

not up to the courts to rewrite the plain words of statutes."

State v. Wiedmeyer, 2016 WI App 46, ¶13, 370 Wis. 2d 187, 881

N.W.2d 805. Nor can courts "add words to a statute to give it a

5 See ¶91, supra.

6 No. 2022AP1329.akz

certain meaning." State v. Neill, 2020 WI 15, ¶23, 390

Wis. 2d 248, 938 N.W.2d 521. There is no burden of proof at

disposition in the statute because we "interpret the words the

legislature actually enacted into law[.]" State v. Fitzgerald,

2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165. Instead,

"[t]he polestar at a dispositional hearing is simply the best

interests of the child." State v. A.G., 2023 WI 61, ¶33, 408

Wis. 2d 413, 992 N.W.2d 75 (citing Brown Cnty. v. Brenda B.,

2011 WI 6, ¶33, 331 Wis. 2d 310, 795 N.W.2d 730 (quoting Julie

A.B., 255 Wis. 2d 170, ¶30)).

¶97 Not imposing a burden of proof for the judge

determining disposition is consistent with the stated purpose of

Chapter 48. At the beginning of Chapter 48, the legislature

explained the judge's role: "In construing this chapter, the

best interests of the child . . . shall always be of paramount

consideration." Wis. Stat § 48.01(1). Section 48.01(1)(ag)

states that "the court may determine that it is in the best

interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the

rights of parents."

¶98 The text of various statutes reveals that the

legislature does not always impose a burden of proof in the

"best interests of the child" standard. Sometimes, however, the

legislature does set forth a burden of proof.

¶99 For example, Wis. Stat. § 48.437 addresses certain

changes in a child's placement. Under § 48.437(3), a court is prohibited from changing placement in the home of a person who

7 No. 2022AP1329.akz

has been convicted of a homicide of a parent unless the court

determines by "clear and convincing evidence" that placement is

in the child's best interests. That statute states:

Except as provided in this subsection, the court may not change a child's placement to a placement in the home of a person who has been convicted of the homicide of a parent of the child under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated. This subsection does not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the child. The court shall consider the wishes of the child in making that determination. § 48.437(3) (emphasis added).

¶100 Similarly, under Wis. Stat. § 48.357(4d) (and its

companion, Wis. Stat. § 938.357(4d)), the court may not change

placement to the home of a person who has been convicted of

homicide of a parent of a child or juvenile unless that

conviction has been reversed, set aside, or vacated. Section

§ 48.357(4d) states:

48.357(4d) PROHIBITED PLACEMENTS BASED ON HOMICIDE IF PARENT. (a) Prohibition. Except as provided in par. (b), the court may not change a child's placement to a placement in the home of a person who has been convicted of the homicide of a parent of the child under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated.

(am) Change in placement required. Except as provided in par. (b), if a parent in whose home a child is placed is convicted of the homicide of the child's other parent under s. 940.01 or 940.05, and the conviction has not been reversed, set aside, or vacated, the court shall change the child's placement to a placement outside the home of the parent on petition of the child, the child's counsel or guardian ad litem, the guardian or legal custodian of the child, the person or agency primarily responsible for implementing the dispositional order, or the district

8 No. 2022AP1329.akz

attorney or corporation counsel of the county in which the dispositional order was entered, or on the court's own motion with notice to the parent.

(b) Exception. Paragraphs (a) and (am) do not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the child. The court shall consider the wishes of the child in making that determination. (Emphasis added.) This statute sets forth the burden of proof

of clear and convincing evidence that is required for the court

to determine that the placement is in the child's best interest.

¶101 Under Wis. Stat. § 48.355(3) (and its companion, Wis. Stat. § 938.355(3)), the court may set rules of visitation for a

parent, but the court must find that visitation is in the

child's best interests. Section 48.355(3) states:

(3) PARENTAL VISITATION. (a) Except as provided in par. (b), if, after a hearing on the issue with due notice to the parent or guardian, the court finds that it would be in the best interest of the child, the court may set reasonable rules of parental visitation.

(b) 1. Except as provided in subd. 2., the court may not grant visitation under par. (a) to a parent of a child if the parent has been convicted under s. 940.01 of the first−degree intentional homicide, or under s. 940.05 of the 2nd−degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.

1m. Except as provided in subd. 2., if a parent who is granted visitation rights with a child under par. (a) is convicted under s. 940.01 of the first−degree intentional homicide, or under s. 940.05 of the 2nd−degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated, the court shall issue an order prohibiting the parent from having visitation with the child on petition of the child, the guardian or legal custodian of the child, a person or agency bound by the dispositional order or the district attorney or corporation counsel of the county in which 9 No. 2022AP1329.akz

the dispositional order was entered, or on the court's own motion, and on notice to the parent.

2. Subdivisions 1. and 1m. do not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination. (Emphases added.)

¶102 Wisconsin Stat § 48.217(3)(c) (and accompanying Wis.

Stat. § 938.217(3)(c)), relates to change in placement based on

homicide of a parent. Section 48.217(3)(c) notes that if the

court finds by "clear and convincing evidence" that the

placement is in the "best interest of the child," the court need

not apply subs. (3)(a) or (3)(b).6

¶103 In the criminal statutory context, criminal courts

have jurisdiction over a juvenile alleged to have committed

certain crimes. But these statutes impose a burden of proof on

the juvenile to prove by "clear and convincing evidence" that it

would be in the best interests of the juvenile and the public to

not waive the juvenile into adult court.7 Wisconsin Stat.

§ 938.183(1m)(c)3. states:

See Wis. Stat. § 48.217(3)(c): "Paragraphs (a) and (b) do 6

not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the child. The court shall consider the wishes of the child in making that determination." 7 See Wis. Stat. § 938.18(6) ("Decision on Waiver"):

After considering the criteria under sub. (5), the court shall state its finding with respect to the criteria on the record, and, if the court determines on the record that there is clear and convincing evidence that is contrary to the best interests of the juvenile or of the public to hear the case, the court shall enter an order waiving jurisdiction and 10 No. 2022AP1329.akz

For a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 15th birthday, the court of criminal jurisdiction finds that the juvenile has not attempted to commit a violation of s. 940.01 or committed a violation of s. 940.01, 940.02, or 940.05, and the court of criminal jurisdiction, after considering the criteria under s. 938.18(5), determines that the juvenile has proved by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to adjudge the juvenile to be delinquent and impose a disposition under s. 938.34. (Emphasis added.) ¶104 In Wis. Stat. § 48.977(6), which deals with revisions

of guardianship orders, the legislature chose yet again to

require both a "clear and convincing burden" of proof and the

"best interests of the child," even within the same subsection:

(6) REVISION OF GUARDIANSHIP ORDER. (a) Any person authorized to file a petition under sub. (4)(a) may request a revision in a guardianship order entered under this subsection or sub. (4)(h)2., or the court may, on its own motion, propose such a revision. The request or court proposal shall set forth in detail the nature of the proposed revision, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed revision would be in the best interests of the child and shall allege any other information that affects the advisability of the court's disposition.

(b) The court shall hold a hearing on the matter prior to any revision of the guardianship order if the

referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction. After the order, the court of criminal jurisdiction has exclusive jurisdiction.

(Emphasis added.)

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request or court proposal indicates that new information is available which affects the advisability of the court's guardianship order, unless written waivers of objections to the revision are signed by all parties entitled to receive notice under sub. (4)(c) and the court approves the waivers.

(c) If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4)(c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a revision if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and if the court determines that a revision would be in the best interests of the child. (Emphases added.)

¶105 As evidenced, the legislature has chosen to implement

a burden of proof in conjunction with the "best interests of the

child" considerations in other statutory sections inside Chapter

48. However, numerous places in Chapter 48 reference the "best

interests of the child" standard, but do not require more than

an accompanying discretionary determination.

¶106 For example, Wis. Stat. § 48.299 (and its companion,

Wis. Stat. § 938.299) addresses procedures at hearings. Section

48.299(1)(ag) references who may be present at a custody hearing

and provides that certain individuals may be excluded from a

hearing which deals with sensitive personal information if it is

in the child's best interest:

In a proceeding other than a proceeding under s. 48.375(7), if a public hearing is not held, only the parties and their counsel or guardian ad litem, the court−appointed special advocate for the child, the child's foster parent or other physical custodian described in s. 48.62(2), witnesses, and other persons requested by a party and approved by the court may be 12 No. 2022AP1329.akz

present, except that the court may exclude a foster parent or other physical custodian described in s. 48.62(2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the child or the child's family or if the court determines that excluding the foster parent or other physical custodian would be in the best interests of the child. Except in a proceeding under s. 48.375(7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under [42 U.S.C. § 629h], as determined by the director of state courts, may be admitted by the court. § 48.299(1)(ag) (emphasis added). Additionally, Wis. Stat.

§ 48.299(3) states that a child must be present for hearings

under Chapter 48 unless the court finds it is in the best

interests of the child not to be present but does not provide a

burden of proof for the court to make this decision.8

¶107 Wisconsin Stat. § 48.358(2) provides for a trial

reunification, but the agency responsible for implementing the

dispositional order must provide a statement as to why trial

reunification is in the "best interests" of the child. See

§ 48.358(2)(a) ("The request shall contain . . . a statement describing why the trial reunification is in the best interests

8 According to Wis. Stat. § 48.299(3):

If the court finds that it is in the best interest of the child, and if the child's counsel or guardian ad litem consents, the child may be temporarily excluded by the court from a hearing on a petition alleging that the child is in need of protection or services. If the court finds that a child under 7 years of age is too young to comprehend the hearing, and that it is in the best interest of the child, the child may be excluded from the entire hearing.

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of the child . . . ."); see also § 48.358(2)(d) ("If the court

finds that the trial reunification is in the best interests of

the child and that the trial reunification satisfies the

objectives of the child's permanency plan, the court shall order

the trial reunification."). Again, the statutes do not identify

a burden of proof that the court must apply in making this

decision.

¶108 Under Wis. Stat. § 48.365(2g)(b)3. and its companion,

Wis. Stat. § 938.365(2g)(b)3., when a child is placed outside of

the home for 15 of the most recent 22 months, a report must be

submitted with a recommendation which must include why adoption

is in the "best interests" of the child or juvenile. And, in

Wis. Stat. § 48.988(6), a juvenile delinquent may be placed in

another state's institution, but the court must find that it is

in the "best interest of the child":

A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to being sent to such other party jurisdiction for institutional care and the court finds that:

(a) Equivalent facilities for the child are not available in the sending agency's jurisdiction; and

(b) Institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship. (Emphases added.) The differences in the statutes identifying a

burden of proof imposed on the court versus statutes which omit

a burden of proof in the Children's Code show that the legislature deliberately chose to omit or include a burden of

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proof. "Under the omitted-case canon of statutory

interpretation, '[n]othing is to be added to what the text

states or reasonably implies (casus omissus pro omisso habendus

est). That is, a matter not covered is to be treated as not

covered.'" State v. Schultz, 2020 WI 24, ¶52, 390 Wis. 2d 570,

939 N.W.2d 519 (quoting Scalia & Garner, supra ¶93, at 93).

¶109 Even looking beyond Chapter 48,9 we see that the "best

interests of the child" is a standard that the legislature

imposes in, for example, family law. In initial determinations

of legal custody and periods of physical placement between

parents, the best interests of the child controls. See, e.g.,

Wis. Stat. § 767.41(2)(a) ("Subject to pars. (am) to (e), based

on the best interest of the child . . . the court may give joint

legal custody or sole legal custody of a minor child.");

§ 767.41(2)(am) ("Except as provided in par. (d), the court

shall presume that joint legal custody is in the best interest

of the child."); § 767.41(2)(b) ("Except as provided in par. (d)

and subject to par. (e), the court may give sole legal custody only if it finds that doing so is in the child's best

interest . . . ."). Farther in the same section,

§ 767.41(2)(d), is an example of the legislature imposing a

See, e.g., Chapter 46 ("Social Services"); Chapter 49 9

("Public Assistance and Children and Family Services"); Chapter 301 ("Corrections"); Chapter 324 ("Deployed Parents Custody and Visitation"); Chapter 51 ("State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health"); Chapter 54 ("Guardianships and Conservatorships"); Chapter 118 ("General School Operations"); Chapter 813 ("Injunctions, Ne Exeat and Receivers"); and Chapter 938 ("Juvenile Justice Code").

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burden of proof and a rebuttable presumption, yet still

requiring consideration of the best interests of the child:

1. Except as provided in subd. 4., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20(1m), or domestic abuse, as defined in s. 813.12(1)(am), pars. (am), (b), and (c) do not apply and there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party. The presumption under this subdivision may be rebutted only by a preponderance of evidence of all of the following: . . .

b. It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on a consideration of the factors under sub. (5)(am). § 767.41(2)(d)1.b. (emphases added).

¶110 Much like the provisions in Chapter 48, Wis. Stat.

§ 767.44(2) similarly states that the court would need to

determine by "clear and convincing evidence" that visitation or

periods of physical placement would be in the "best interest of

the child" when determining whether physical visitation or

physical placement should be with a parent who kills another parent. In other words, the legislature seems to use the "best

interests" language and the corresponding burden of proof in

this unseemly scenario, consistently from chapter to chapter.

¶111 Wisconsin Stat. § 767.451(1) addresses when and how

custody or physical placement may be modified. Under

§ 767.451(1)(b)1.a., the court "may modify an order of legal

custody or an order of physical placement" if the court finds, among other things, "[t]he modification is in the best interest

16 No. 2022AP1329.akz

of the child." This statute sets forth a rebuttable presumption

that continuing the current allocation of decision making under

a legal custody order is in the best interest of the child and

that continuing the child's physical placement with the parent

with whom the child resides for the greater period of time is in

the best interests of the child, and if the parents have equal

periods of placement the rebuttable presumption is that remains.

¶112 Wisconsin Stat. § 767.451(3) considers when

modification will not substantially alter the amount of time a

parent spends with a child: The court may modify the order "if

the court finds that the modification is in the best interest of

the child." If a parent relocates, then the court considers

whether a proposed relocation plan is in the child's best

interests. See Wis. Stat. § 767.481(2)(b) ("If the court finds

at the initial hearing that the parent not filing the motion was

properly served . . . the court shall approve the proposed

relocation plan . . . unless the court finds that the proposed

relocation plan is not in the best interest of the child."); Wis. Stat. § 767.481(3) ("[T]he court may issue a temporary

order . . . to allow the parent proposing the relocation to

relocate with the child if the court finds that the relocation

is in the child's immediate best interest."); Wis. Stat.

§ 767.225(1)(am) ("If the court grants physical placement to one

parent for less than 25 percent of the time, . . . the court

shall enter specific findings of fact as to the reasons that a

greater allocation of physical placement with that parent is not in the best interests of the child.").

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¶113 Regarding a modification of judgment under Wis. Stat.

§ 767.461, parties may stipulate to a modification of an order

of physical placement or legal custody "unless the court finds

that the modification is not in the best interest of the child."

Similarly, under Wis. Stat. § 767.451(2), the court may modify

equal physical placement if it is in the "best interests of the

child" and the rebuttable presumption that "having substantially

equal periods of physical placement is in the best interests of

the child."10

¶114 In another example, under Wis. Stat. § 767.511(1m),

the court may deviate from child support standard shirking but

must consider the "best interests of the child." It states both

10The statute, entitled "Modification of substantially equal physical placement orders," states as follows:

Notwithstanding sub. (1):

(a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion, or order to show cause by a party, may modify the order if it is in the best interest of the child.

(b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify the order based on the appropriate standard under sub. (1). However, under sub. (1)(b)2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.

Wis. Stat. § 767.451(2) (emphases added).

18 No. 2022AP1329.akz

a burden of proof and consideration of the best interests of the

child:

Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties: . . .

(hm) The best interests of the child. § 767.511(1m)(hm) (emphases added).

¶115 Under Wis. Stat. § 767.34, parties may stipulate

regarding child support, but the best interests of the child are

paramount. See also Wis. Stat. § 767.333(2)(a) ("If the judge

approves the stipulation, the judge shall incorporate and enter

the terms of a stipulation . . . as an initial order of physical

placement or legal custody unless the judge finds that the terms

are not in the best interest of the child."); see also Frisch v.

Henrichs, 2007 WI 102, ¶75, 304 Wis. 2d 1, 736 N.W.2d 85; May v.

May, 2012 WI 35, ¶¶18-19, 339 Wis. 2d 626, 813 N.W.2d 179. The

court retains equitable power to consider circumstances

unforeseen by the parties when they enter into a stipulation that adversely affects the best interests of the child.

¶116 Under Wis. Stat. § 767.511(2), court may establish a

separate fund or trust if it promotes the best interests of the

child: "The court may protect and promote the best interests of

the minor children by setting aside a portion of the child

support which either party is ordered to pay in a separate fund

or trust for the support, education and welfare of such children."

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¶117 Under Wis. Stat. § 767.401(1)(a), a court may order

parties to attend programming concerning divorce if "the court

determines that it is appropriate and in the best interest of

the child . . . ." Pursuant to § 767.407(1)(e), a court may

make a temporary order before a GAL recommendation but the court

must "determine[] that the temporary order is in the best

interest of the child."

¶118 Wisconsin Stat. § 767.405 addresses family court

services, including court-appointed mediation. Under Wis. Stat.

§ 767.405(10), the mediator's powers and duties "shall be guided

by the best interest of the child." Under Wis. Stat.

§ 767.405(12)(a), the GAL must comment on an agreement as a

result of mediation being in the best interests of the child.

The court may approve or reject the agreement based on the best

interest of the child.

¶119 As we can see by the text of these statutes, the

legislature is well versed at stating a burden of proof when and

where it deems one to be applicable. We should not presume then that the legislature has imposed a burden of proof where it has

20 No. 2022AP1329.akz

not so stated one.11 Where the legislature made a statutory

distinction, "it is the task of this court to give effect and

meaning to that distinction." Est. of Miller v. Storey, 2017 WI

99, ¶42, 378 Wis. 2d 358, 903 N.W.2d 759; Kalal, 271

Wis. 2d 633, ¶46 ("Statutory language is read where possible to

give reasonable effect to every word . . . .").

¶120 Courts function day to day making a whole variety of

determinations that the legislature requires be made "in the

best interests of the child." In those matters, the

determinations are made in the discretion of the court with that

consideration in mind. To suggest that the legislature really

meant to write a burden of proof where none is written,12 and

Fundamental 11 principles of statutory interpretation require us to determine that where the legislature used the same terminology throughout the same statutory section, in this case Chapter 48, the legislature meant it to have the same meaning. Additional statutory interpretation principles dictate that had the legislature wished to mandate a burden of proof at disposition in TPR proceedings, it would have clearly done so, as it did at the grounds phase, in the same chapter, dealing with the same statutory subject: TPR proceedings. See Wis. Stat. § 48.31; Wis. Stat. 48.426(3). But an analysis of the plain language of Wis. Stat. § 48.426(2) shows that the legislature chose not to mandate a burden of proof at the disposition phase in a TPR proceeding as it did at grounds. A survey of our statutes shows that the legislature has clearly mandated a burden of proof accompany the "best interests of the child" standard before. So, had the legislature wanted to mandate a statutory burden of proof at disposition in TPR proceedings, the legislature could have clearly done so. The fact that the legislature chose not to do so, is certainly instructive.

There is no burden of proof at disposition in the plain 12

language of the statute. The legislature chose not to include one. Instead, the legislature chose, as it did under other statutory schemes, simply to utilize the standalone "best interests of the child" standard.

21 No. 2022AP1329.akz

that it "forgot" to write a burden of proof when it does just

that in other subsections of the Children's Code, is contrary to

fundamental statutory interpretation principles13 and without

support in the language of the statute.

¶121 In summary, in applying fundamental statutory

interpretation principles to the statute before us, we determine

that the there is no statutory burden of proof at the

dispositional phase of a TPR proceeding. The plain text of Wis.

Stat. § 48.426(2) is unambiguous; there is no statutory burden

listed. Instead, the statute requires courts to utilize the

"best interests of the child" standard. The legislature chose

not to include a burden of proof in this statutory scheme even

though the legislature included a burden of proof in other

statutory schemes which also relied on the "best interests of

the child" standard. In considering other statutes, we find

that this legislative choice is not unique, particularly when

considering the best interests of the child.

Fundamental 13 principles of statutory interpretation dictate that the phrase "best interests of the child" is presumed to bear the same meaning throughout the text. See Scalia & Garner, supra n.4, at 170-73 (Presumption of Consistent Usage). Moreover, we should not assume the legislature meant more than it said. We should give the statute's plain language its due. We are not "at liberty to disregard the plain, clear words of the statute" we are analyzing. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). "We assume that the legislature's intent is expressed in the statutory language." Id., ¶44. We should respect the choice of the legislature to not place a burden of proof on the standard at disposition.

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III

¶122 "The procedural due process clause protects

individuals from governmental 'denial of fundamental procedural

fairness.'" Thorp v. Town of Lebanon, 2000 WI 60, ¶53, 235

Wis. 2d 610, 612 N.W.2d 59 (quoting County of Sacramento v.

Lewis, 523 U.S. 833, 845-46 (1998)). Because the statutes

provide for a discretionary decision based on the evidence and

testimony at disposition, a lack of burden of proof does not

suggest the proceedings are so fundamentally unfair as to

violate a parent's procedural due process guarantees. Instead,

the TPR proceedings provide ample statutory and constitutional

protections to ensure that a parent's rights are not erroneously

terminated in an unfair and defective proceeding.

¶123 In the grounds phase of a TPR proceeding, if the

parent pleads no contest to the grounds alleged in the petition,

the court cannot just accept the plea. Instead, "[t]he circuit

court must engage the parent in a colloquy to ensure that the

plea is knowing, voluntary, and intelligent." Brenda B., 331 Wis. 2d 310, ¶35. "This colloquy is governed by the

requirements of Wis. Stat. § 48.422(7)14 and notions of due

14 Under Wis. Stat. § 48.422(7), before the circuit court can "accept[] an admission of the alleged facts in the petition," it must:

(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 and alert all unrepresented parties to the possibility that a lawyer 23 No. 2022AP1329.akz

process."15 Id., ¶35 (citing Waukesha Cnty. v. Steven H., 2000

WI 28, ¶¶25, 39, 233 Wis. 2d 344, 607 N.W.2d 607) (emphasis

added). But due process considerations do not mandate a burden

of proof at the disposition phase because instead, during this

phase, "[t]he focus shifts to the interests of the child."

Julie A.B., 255 Wis. 2d 170, ¶28; Wis. Stat. § 48.426(2). The

parent's procedural due process rights at the disposition

may discover defenses or mitigating circumstances which would not be apparent to them.

(bm) Establish whether a proposed adoptive parent of the child has been identified. . . .

(br) Establish whether any person has coerced a birth parent or any alleged or presumed father of the child in violation of s. 48.63(3)(b)5. Upon a finding of coercion, the court shall dismiss the petition.

(c) Make such inquiries as satisfactorily establish that there is a factual basis for the admission.

See also Waukesha Cnty. v. Steven H., 2000 WI 28, ¶39, 233 Wis. 2d 344, 607 N.W.2d 607; Oneida Cnty. Dep't Soc. Servs. v. Therese S., 2008 WI App 159, ¶5, 314 Wis. 2d 493, 762 N.W.2d 122.

To ensure parents' due process rights are protected, the 15

court must ensure the parent "[has] knowledge of the constitutional rights he or she is giving up by making the plea." Kenosha Cnty. Dep't Human Servs. v. Jodie W., 2006 WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845. This includes informing the parents of potential outcomes. While the court is not required to inform parents of all potential outcomes, the court is required to inform the parent "of the statutory standard the court will apply at the second stage," namely, the best interests of the child. Therese S., 314 Wis. 2d 493, ¶16. And, the court must inform parents that "the best interests of the child shall be the prevailing factor considered by the court in determining the disposition." Id.; see also Brown Cnty. Dep't Human Servs. v. Brenda B., 2011 WI 6, ¶56, 331 Wis. 2d 310, 795 N.W.2d 730.

24 No. 2022AP1329.akz

therefore are diminished because the parent has already been

found to be unfit by the factfinder. "The best interests of the

child do not 'prevail' until the parent has been declared unfit

after fact-finding by the court or jury at the grounds phase of

the TPR proceeding." Steven V. v. Kelley H., 2004 WI 47, ¶36,

271 Wis. 2d 1, 678 N.W.2d 856 (quoting Julie A.B., 255

Wis. 2d 170, ¶22).

¶124 During this phase, the court hears testimony from any

interested party as to the disposition of the petition. Wis.

Stat. § 48.427(1) ("Any party may present evidence relevant to

the issue of disposition, including expert testimony, and may

make alternative dispositional recommendations to the court.").

The court weighs the testimony received against all of the

statutory factors in Wis. Stat. § 48.426(3).16 The court may yet

decide to "dismiss the petition if it finds the evidence does

not warrant the termination of parental rights." Wis. Stat.

§ 48.427(2). Or, the court may decide to terminate the parental

rights of one parent. Wis. Stat. § 48.427(3). Or, the court may decide to terminate the parental rights of both parents.

Majority op., ¶7 n.6; State v. Margaret H., 2000 WI 42, 16

¶15, 234 Wis. 2d 606, 610 N.W.2d 475 (agreeing with court of appeals' decision to remand, notwithstanding its erroneous statutory interpretation, because "the record indicates that the circuit court failed to consider all of the relevant statutory factors enumerated under Wis. Stat. § 48.426(3)" (emphasis added)); Julie A.B., 255 Wis. 2d 170, ¶4 (concluding the court "must consider . . . the six factors enumerated in § 48.426(3) in determining the best interests of the child" but "the court may also consider other factors . . . but all factors relied upon must be calibrated to the prevailing standard: the best interests of the child").

25 No. 2022AP1329.akz

Id. Whatever the outcome chosen, in exercising its discretion

at disposition, the court must ensure its decision is in "the

best interests of the child."

¶125 This procedure recognizes the profound interests

involved in terminating a parent's rights. On the one hand, the

parent has a strong interest in the continuation of the family

unit and child rearing. Stanley v. Illinois, 405 U.S. 651

(1972). This interest though comes into tension with the

State's interest in the welfare and well-being of the child.

Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981).

Because these two colliding interests are at stake, "[w]hen the

State moves to destroy weakened familial bonds, it must provide

the parents with fundamentally fair procedures." Santosky, 455

U.S. at 753-54. In Santosky, the United States Supreme Court

applied the three-factor analysis from Mathews v. Eldridge, 424

U.S. 319 (1976),17 to determine that factual findings of a

parent's unfitness for parental termination decisions required

a clear and convincing burden of proof. See Santosky, 455 U.S. at 769. Like Wisconsin's TPR procedures, the New York statutes

at issue in Santosky also involved a two-step process with the

first part being a factual determination of the parent's

unfitness which, if determined by the factfinder, then proceeds

In determining what procedural due process protections 17

are owed, the Court considered three factors: "the private interest that will be affected by the official action[,] . . . the risk of an erroneous deprivation of such interest through the procedures used[,] . . . and [] the Government's interest[.]" Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

26 No. 2022AP1329.akz

to a secondary determination of "what placement would serve the

child's best interests." Id. at 748. The Court's holding

requiring a higher burden of proof than preponderance of

evidence was only in relation to the first part of the

termination proceedings involving factual findings. Id. at 769.

¶126 Once the State has met this burden, the private

interests of the parent are diminished at this stage of the

proceedings because the factual finding of unfitness has already

been established. The government's interest to promote and

provide for the welfare of the child becomes heightened with the

factual finding of the parent's unfitness. Procedural due

process requirements are thus satisfied when, as here, the

circuit court considers the non-exhaustive list of statutory

factors, Wis. Stat. § 48.426(3)(a)-(f), as required in making

its determination of what is in the best interests of the child.

This, combined with the procedural process allowing for an open

evidentiary hearing, satisfies what procedural due process

requires. Additionally, all parties in this stage of the proceeding are allowed to produce any relevant testimony and

evidence to aid the circuit court in its best interests of the

child determination.

¶127 Decisions as to the "best interests of the child" lie

within the discretionary domain of the circuit court. Julie

A.B., 255 Wis. 2d 170, ¶42 ("[T]he wise and compassionate

discretion of the court will determine whether termination will

'promote the best interests of the child.'" (citation omitted)). Instead, "[i]t is the best interests of the child that is the

27 No. 2022AP1329.akz

'polestar' at the dispositional hearing." Brenda B., 331

Wis. 2d 310, ¶33 (citing Julie A.B., 255 Wis. 2d 170, ¶30).

But, the court's discretion as to what is in the child's best

interest is tethered to the evidence presented and to

consideration of the mandatory statutory requirements, while

complying with procedural due process.

¶128 While "[t]he ultimate determination of whether to

terminate parental rights is discretionary with the circuit

court," Margaret H., 234 Wis. 2d 606, ¶27, parents and child

alike are provided multiple statutory layers of protection

throughout the TPR procedures. These statutory layers of

protection ensure that:

While, as in all discretionary acts of a court, reasonable persons may sometimes differ in the outcome, all that this court need find to sustain a discretionary act is that the trial court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175.

Procedural "due process is flexible and calls for such procedural protections as the particular situation demands."

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In this

situation, the circuit court's discretionary decision at

disposition does not require a burden of proof. Instead, the

child's best interest is paramount.

IV

¶129 Consequently, I conclude that for the TPR statutes

applicable in this case, Wis. Stat. § 48.31 and Wis. Stat. § 48.426(2), no burden of proof applies at disposition and the 28 No. 2022AP1329.akz

court correctly stated the "best interests of the child"

standard applicable at disposition. We should not shy away from

determining that which has been agreed to by the parties,

determined by the court of appeals, comported with the

requirements of procedural due process, and is apparent from the

plain language of the statutes.

¶130 For the foregoing reasons, I respectfully concur.

¶131 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.

29 No. 2022AP1329.awb

¶132 ANN WALSH BRADLEY, J. (concurring). I join the

majority opinion with the exception of paragraphs 65-67. I

write separately to briefly emphasize and clarify two points.

¶133 First, I emphasize that we do not decide whether there

is a burden of proof at disposition, and if so, what that burden

is. Majority op., ¶6 n.4. Chief Justice Ziegler's concurrence

notwithstanding, we have not been presented with either argument

or adversarial briefing on such questions.1 Thus, under the

current state of our case law, the circuit court at the plea

colloquy must state the "statutory standard," i.e., the "best

interest of the child." Oneida Cnty. Dep't of Soc. Servs. v.

Therese S., 2008 WI App 159, ¶16, 314 Wis. 2d 493, 762

N.W.2d 122.

¶134 Second, because we do not decide whether there is a

burden of proof at disposition, I write to clarify that we need

not resolve whether any potential burden is a "trial right."

The majority opinion's discussion on this point may foster

confusion. See majority op., ¶¶65-67. It could be read to condition whether something is a "right" on whether the circuit

court refers to it as such. This cannot be.

1I observe that the court of appeals, in a recent unpublished opinion, determined that there is a burden at the disposition stage, and that the burden is a preponderance of the evidence. State v. H.C., No. 2023AP1950, unpublished slip op., ¶2 (Wis. Ct. App. Mar. 5, 2024). I cite to an unpublished opinion for the singular purpose of illustrating that the issue is a live one, which has been percolating below. See Wis. Stat. § (Rule) 809.23(3).

1 No. 2022AP1329.awb

¶135 While muddying the waters, the opinion may also call

into question this court's decision in Brown Cnty. Dep't of

Human Servs. v. Brenda B., 2011 WI 6, 331 Wis. 2d 310, 795

N.W.2d 730. I clarify that Brenda B. remains good law and that

in no way is a "right" contingent on how the circuit court

refers to it in a plea colloquy.

¶136 The majority states that the circuit court here used

the term "rights" in the plea colloquy to "precisely and

specifically" refer to "procedural and constitutional rights:

the right to a trial (to a jury or a judge), the right to call

and cross-examine witnesses, the right to subpoena witnesses,

and the right to testify or to remain silent." Majority op.,

¶65. However, this list of procedural and constitutional rights

is not exhaustive.

¶137 In Brenda B., the court referred to the importance of

a parent understanding that the parent gives up the "right to

make the petitioner prove unfitness by clear and convincing

evidence" when pleading no contest at the grounds phase of a TPR proceeding. Brenda B., 331 Wis. 2d 310, ¶43 (emphasis added).

Holding the State to its burden is similarly described as a

"right" in other contexts. For example, in the seminal United

States Supreme Court case In re Winship, 397 U.S. 358 (1970),

the Court refers to the burden of proof of beyond a reasonable

doubt as "as much required during the adjudicatory stage of a

delinquency proceeding as are those constitutional

safeguards [of] . . . notice of charges, right to counsel, the rights of confrontation and examination, and the privilege

2 No. 2022AP1329.awb

against self-incrimination." Id. at 368; see also State v.

Kelty, 2006 WI 101, ¶42, 294 Wis. 2d 62, 716 N.W.2d 886

(referring to "the defendant's right to make the state prove

beyond a reasonable doubt the facts necessary to support guilt")

(emphasis added). Under such an understanding, there would be

no argument that in a criminal case the right to hold the State

to its burden of proof beyond a reasonable doubt is not a

"right."

¶138 The majority opinion in the present case could be read

to confuse this understanding. Its analysis is predicated on

what the circuit court said, not whether holding the State to a

particular burden is actually a "right." The opinion could

imply that something is not a "right" unless the circuit court

refers to it as such. Clearly, a legal "right" is a "right"

regardless of what the circuit court says or fails to say.

¶139 For the reasons stated above, I respectfully concur.

¶140 I am authorized to state that Justice JANET C.

PROTASIEWICZ joins this concurrence.

3 No. 2022AP1329.awb