State v. A. G. (In re A.G.)

• Docket Number: 2022AP652
• Decision Date: 30 June 2023
• Citation: 2023 WI 61
• Parties: In re A.G., the termination of parental rights to a person under the age of 18: v. A. G., Respondent-Appellant. state of Wisconsin, petitioner-Respondent-petitioner,
• Court: Wisconsin Supreme Court

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2023 WI 61

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

state of Wisconsin, petitioner-Respondent-petitioner,
v.
A. G., Respondent-Appellant.

No. 2022AP652

Supreme Court of Wisconsin

June 30, 2023

SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 17, 2023

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

Source of Appeal: Circuit Court, Milwaukee County, L.C. No. 2021CV1469 Ellen R. Brostrom Judge

For the petitioner-respondent-petitioner, there were briefs filed by John T. Chisolm, district attorney, and Katie Gutowski, assistant district attorney. There was an oral argument by Katie Gutowski, assistant district attorney.

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For the respondent-appellant, there was a brief filed by Christopher D. Sobic, assistant state public defender. There was an oral argument by Christopher D. Sobic, assistant state public defender.

Guardian ad litem briefs were 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.

REBECCA GRASSL BRADLEY, J.

¶1 The State filed a petition to terminate the parental rights of A.G. under Wis.Stat. § 48.415 (2019-20), alleging A.G.'s biological daughter remained a child in continuing need of protection or services

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(continuing CHIPS) and A.G.'s failure to assume parental responsibility for his daughter. This appeal concerns whether A.G. knowingly, voluntarily, and intelligently pled no contest to one of those two grounds in the termination of parental rights (TPR) petition. A.G. argues he did not understand the circuit court at disposition would have to decide whether to terminate his parental rights.^[1] He further argues the circuit court erroneously indicated the State would have to prove at disposition that "termination was in . . . [the child]'s best interest" by "clear and convincing" evidence. The State, A.G. claims, has no such burden; therefore, A.G. asserts he pled no contest under the belief that his odds of a favorable outcome were higher than they legally should have been.

¶2 The circuit court denied A.G.'s plea withdrawal motion. The court of appeals reversed that decision in an unpublished opinion and ordered the cause remanded with directions to allow A.G. to withdraw his plea. State v. A.G. (A.G. II), No. 2022AP652, unpublished slip op. (Wis. Ct. App. July 12, 2022). The State and the guardian ad litem (GAL) each filed a petition for review. We granted both petitions.

¶3 We hold A.G. knowingly, voluntarily, and intelligently pled no contest. During the plea colloquy, the circuit court told A.G., "[t]he second half of the case is where the [c]ourt

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decides is it in the child's best interest to in fact terminate your parental rights." At the initial appearance ten months before the colloquy, the court had already informed A.G. of potential dispositional outcomes:

One thing I could decide is that termination of parental rights can [sic] best for the kids that are involved. If I make that decision, that ends all legal relationship between that parent and that child. As far as the law is concerned, that parent and that child become complete strangers to each other. But that's not the only potential outcome. There are other potential outcomes that don't involve termination of parental rights.

Assuming the colloquy was defective, A.G. had previously been notified that at disposition the court may or may not terminate his parental rights. Additionally, the court conducted a contested dispositional hearing the day after the colloquy, and A.G.'s testimony shows he sought reunification rather than termination of his parental rights. After the court held an evidentiary hearing on A.G.'s plea withdrawal motion, the court found A.G. had demonstrated an understanding of potential dispositions through his testimony at the dispositional hearing. That finding is not clearly erroneous and must be accepted. Other parts of the record confirm the validity of A.G.'s plea. Consequently, we must reject A.G.'s first argument under the applicable standard of review. See State v. Brown, 2006 WI 100, ¶19, 293 Wis.2d 594, 716 N.W.2d 906 (citing State v. Trochinski, 2002 WI 56, ¶16, 253 Wis.2d 38, 644 N.W.2d 891).

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¶4 Regarding A.G.'s second argument, he is correct to note that Wis.Stat. § 48.426(2) (2021-22)^[2] does not place a burden of proof on the State; however, the circuit court actually held the State to the clear and convincing standard at disposition and reiterated at multiple points that the State satisfied this standard. Accordingly, the court did exactly what A.G. claims the court told him it would do. Placing a burden on the State benefitted A.G. and did not affect A.G.'s ability to weigh the pros and cons of entering this particular no contest plea. If A.G. thought a favorable outcome was more likely because the State had to meet a clear and convincing standard, the State actually did meet that standard. The court of appeals erred in permitting A.G. to withdraw his plea; therefore, we reverse its decision.

I. BACKGROUND

¶5 The State's TPR petition sought to sever the parentchild relationship between A.G. and his daughter. Toward the top of the first page, in bold lettering, the TPR petition states: "Petition for Termination of Parental Rights[.]" The TPR petition continues, "[t]he petitioner seeks termination of parental rights of . . . [A.G.]" Toward the end, the TPR petition reads, "[b]ased on the foregoing, . . . [A.G.] is not fit to be a parent to the above-named child. Upon consideration of the entire record in this case, termination of parental

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rights is warranted. . . . The best interest of the child will be served by termination of the parental rights of the parent[.]"

¶6 For context, the State alleged, among other things, that A.G. and the child's mother were addicted to heroin and the child "tested positive for drugs" at birth. After spending approximately one month in the neonatal intensive care unit of the hospital where she was born, A.G.'s daughter was removed from her parents, both of whom later pled no contest to the allegations in the State's petition alleging their daughter was a child in need of protection or services (CHIPS). Filed eight months after the circuit court entered its CHIPS order, the State's TPR petition alleged the child's parents failed to meet the conditions ordered by the circuit court for the return of their daughter. Among other contentions, the State claimed A.G. did not seek treatment and "no call[ed], no show[ed]" multiple drug screenings. Based on the allegations, the State claimed two independent grounds for TPR:

• continuing CHIPS; and

• failure to assume parental responsibility.

See Wis.Stat. § 48.415(2), (6) (2019-20). A.G. was represented by counsel at the hearings discussed below.

¶7 At an adjourned initial appearance, the circuit court explained the nature of TPR proceedings in detail. Most relevantly, the court informed A.G. that if grounds were established, the court would proceed to the disposition phase.

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The court explained it would hold a "contested dispositional hearing" at which:

[W]hat we focus on is not whether there's a reason anymore, but what's [sic] we focus on instead is what's best for the kids that are involved in the case. Not what's best for anybody else. Not what's best for any of the lawyers or social workers. Not what's best for the foster parents. Not what's best for parents, but what's best for the kids that are involved in the case. ....

If I make that unfitness finding, then we go on to the second part of the proceedings. That's that contested dispositional hearing. There we focus on what is best for the kids that are involved. So everybody gets to put on testimony and evidence and argue to me what they think is best for the kids that are involved. The State puts on testimony and evidence and tells me what they think is best. The . . . [GAL] can put on testimony and evidence and tell me what she thinks is best. Parents can do exactly the same thing. Parents have the right to put on testimony and evidence and to subpoena witnesses and to testify or remain silent themselves. Parents also have the right to confront any witness that testifies on behalf of any other party. Parents have the right to argue to me what they think is best for the kids that are involved.

. . . . I then decide what outcome is best for the kids that are involved. One thing I could decide is that termination of parental rights can [sic] best for the kids that are involved. If I make that decision, that ends all legal relationship between that parent and that child. As far as the law is concerned, that parent and that child become complete strangers to each other. But that's not the only potential outcome. There are other potential outcomes that don't involve termination of parental rights.

At multiple points during this appearance, the court paused to inquire whether A.G. understood the court's explanation, and A.G. responded he did.

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¶8 At a later hearing, A.G. pled no contest to the continuing CHIPS ground, and the failure to assume parental responsibility ground was dismissed. During the plea colloquy between A.G. and the circuit court, A.G. stated he was 26 years old, had an 11th-grade education, could read and write English, and had no mental illness or cognitive issues that would limit his ability to understand the colloquy. A.G. denied taking any drugs (other than a prescribed medication that did not "alter[]" his mind) or drinking alcohol within the preceding 12 hours. He also confirmed he read the TPR petition, understood the State's allegations, and was not promised or paid anything as an inducement to plea.

¶9 The part of the plea colloquy giving rise to appellate proceedings went as follows:

Q. You understand that you do have the right to have a

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