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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                           This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 29, 2009
A party may file with the Supreme Court a
David R. Schanker                                         petition to review an adverse decision by the
Clerk of Court of Appeals                                 Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   2008TP30
Appeal Nos.                                               2009AP1357
2008TP31
2009AP1358
STATE OF WISCONSIN                                        IN COURT OF APPEALS
DISTRICT III
NO. 2009AP1357
IN RE THE TERMINATION OF PARENTAL RIGHTS TO DOMINIK M.,
A PERSON UNDER THE AGE OF 18:
EAU CLAIRE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
BRANDY H.,
RESPONDENT-APPELLANT,
NICHOLAS M.,
RESPONDENT.




Nos.   2009AP1357, 2009AP1358
NO. 2009AP1358
IN RE THE TERMINATION OF PARENTAL RIGHTS TO
SHYANNA M., A PERSON UNDER THE AGE OF 18:
EAU CLAIRE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
BRANDY H.,
RESPONDENT-APPELLANT,
NICHOLAS M.,
RESPONDENT.
APPEALS from orders of the circuit court for Eau Claire County:
BENJAMIN D. PROCTOR, Judge.   Affirmed.
¶1                                                                                                     PETERSON, J.,1    Brandy H. appeals orders terminating her parental
rights and an order denying her request to withdraw her no contest plea.   Brandy
argues her plea was not knowing and intelligent.   We affirm.
1   This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2).  This decision
was not released within the thirty days of the date the reply brief was filed.  See WIS. STAT. RULE
809.107 (6)                                                                                            (e).   Therefore, we extend the deadline for deciding the case until today’s date.   See
Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 694, 530 N.W.2d 34 (Ct. App. 1995) (we may
extend the time to issue a decision in a TPR case).  All references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise noted.
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Nos.   2009AP1357, 2009AP1358
BACKGROUND
¶2                                                                                         In September 2008, the Eau Claire County Department of Human
Services  (the  County)  filed  petitions  to  terminate  Brandy’s  parental  rights  to
Dominik M. and Shyanna M.   As grounds, the petitions alleged Brandy abandoned
the children and the children were in continuing need of protection or services.   At
a hearing the day before the grounds hearing was scheduled, the County amended
the  petition  to  add  one  more  ground—continuing  denial  of  visitation—and
proposed dropping the other grounds if Brandy pled no contest to this ground.
¶3                                                                                         After a recess, Brandy’s attorney informed the court Brandy would
plead no contest to the continuing denial ground.   The court then recessed again to
permit  Brandy  to  complete  a  plea  questionnaire  and  waiver  of  rights  form.
Following the second recess, the court conducted a plea colloquy.   It explained the
continuing denial ground, asked if Brandy understood what was being alleged, and
if she understood that by pleading no contest she was giving up the right “to force
the County to prove [that ground].”   She responded that she understood.
¶4                                                                                         The court asked Brandy if she reviewed the plea questionnaire and
waiver of rights form with her lawyer and if she understood it.   She responded that
she did.   The court then explained, “Now, ultimately, by pleading no contest, this
may lead to a basis for terminating your parental rights as to your children.   Do
you understand that?”   Brandy said she did.   The court continued, “And that’s part
of this process but it hasn’t occurred yet.   This is just the first part.   But once we
get over this hurdle, then there’s going to be an issue regarding whether there’s a
termination,  alright?”    Brandy  again  replied  in  the  affirmative.    The  court
reiterated:                                                                                “And I may make the decision that it’s appropriate to terminate your
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Nos.   2009AP1357, 2009AP1358
parental rights to one or both of these children.   Do you understand that?”   Brandy
replied that she did.
¶5                                                                                          The  court  accepted  Brandy’s  plea,  and  then  found  there  were
grounds to terminate her parental rights.    On March  3,  2009, the court held a
dispositional hearing and terminated Brandy’s parental rights to both children.
¶6                                                                                          After  the  court  terminated  her  parental  rights,  Brandy moved  to
withdraw her no contest plea.   At an evidentiary hearing on the motion, Brandy
testified her trial attorney did not explain the plea to her, hurried her into making a
decision, and made her sign the plea questionnaire and waiver of rights form
without explaining it to her.   Her attorney testified to the contrary.   He testified he
informed her that if she pled no contest to the continuing denial grounds, the judge
would  likely  find  grounds  to  terminate  her  parental  rights  and  that  at  the
dispositional hearing the judge would then look to the children’s best interests
when determining whether to terminate her rights.    He also testified he went
through the plea questionnaire and waiver of rights form line by line with her and
answered any questions she had.
¶7                                                                                          The  court  denied  Brandy’s  motion.    It  acknowledged  the  plea
colloquy  did  not  strictly  comply  with  requirements  established  by  case  law.
However, it concluded Brandy’s attorney’s postdisposition testimony, combined
with the initial colloquy, established Brandy’s plea was knowing and intelligent.
DISCUSSION
¶8                                                                                          Before accepting a parent’s plea of no contest in the grounds stage of
a termination proceeding, the court must engage the parent in a personal colloquy
to “determine that the admission is made voluntarily with understanding of the
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Nos.   2009AP1357, 2009AP1358
nature of the acts alleged in the petition and the potential dispositions.”    WIS.
STAT.  § 48.422(7); Oneida County v. Therese S.,  2008 WI App  159,  ¶6,  314
Wis. 2d  493,  762  N.W.2d  122.    We  recently  held  this  includes  ascertaining
whether the parent understands:                                                           (1) acceptance of the plea will result in a finding
of parental unfitness,  (2) the potential dispositions specified under WIS. STAT.
§ 48.427, and (3) that the dispositional decision will be governed by the child’s
best interests.  Therese S., 314 Wis. 2d 493, ¶22.
¶9                                                                                        When a parent alleges a plea was not knowing and intelligent, the
Bangert2 analysis applies.   Therese S., 314 Wis. 2d 493, ¶6.   Therefore, the parent
must “make a prima facie showing the circuit court violated its mandatory duties
and allege he or she in fact did not know or understand the information that should
have  been  provided  at the  hearing.”    Id.    If  the  parent makes a  prima  facie
showing,  the  burden  then  shifts  to  the  county  “to  demonstrate  by  clear  and
convincing evidence that the parent knowingly and intelligently waived the right
to contest the allegations in the petition.”   Id.
1. Whether Brandy made a prima facie showing
¶10    Neither Brandy nor the County are clear as to whether Brandy made
a prima facie showing that the court violated its mandatory duties.   Although the
circuit  court  did  not  specifically state  Brandy made  the  requisite  prima  facie
showing, we conclude the record demonstrates she did.   First, the court held an
evidentiary hearing on whether her plea was knowing and intelligent; this is only
necessary if a parent first makes a prima facie case.   See State v. Bangert, 131
2 State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
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Nos.   2009AP1357, 2009AP1358
Wis.  2d  246,  274,  389 N.W.2d  12  (1986)  (plea may be withdrawn if court’s
mandatory duties are not fulfilled).   Second, although the County later argued the
colloquy  was  adequate,  it  acknowledged  at  the  beginning  of  the  evidentiary
hearing it had the burden of proof “to establish [Brandy] adequately knew what
she was doing when she entered her no contest plea ….”   Finally, the circuit court
conceded it did not strictly comply with the requirements set forth in Therese S.
2. Whether the County proved Brandy’s plea was knowing and intelligent
¶11    The only remaining question, then, is whether the County proved by
clear and convincing evidence that Brandy understood the consequences of her
plea.   Brandy’s argument on appeal is that the circuit court never proceeded to this
step of the Bangert analysis.   Accordingly, she focuses on the deficiencies of the
plea colloquy and argues the court never made “any findings on whether there was
evidence  outside  the  plea  colloquy  to  establish  Brandy                              [understood]  the
consequences of her plea.”   This is simply incorrect.   Indeed, it is inconsistent with
Brandy’s recognition that the court held an evidentiary hearing.
¶12    Rather, Brandy’s mischaracterization of the circuit court’s findings
appears to be based on her confusion about how the court used her attorney’s
testimony.   The court acknowledged it could not find Brandy understood her plea
based only on her attorney’s testimony that he discussed the plea consequences
with her.    From this, Brandy argues the court did not consider her attorney’s
testimony.    That is not the case.    Brandy’s claim she did not understand the
consequences of her plea was based heavily on her assertion her attorney did not
explain certain things to her.   Her attorney’s testimony rebutted these allegations.
When there is conflicting testimony, the fact finder “resolves these conflicts and
weighs the credibility of witnesses.”   Skrupky v. Elbert, 189 Wis. 2d 31, 51, 526
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Nos.   2009AP1357, 2009AP1358
N.W.2d  264  (Ct. App.  1994).    Here, the circuit court found Brandy was not
credible  and  her  attorney  was.    While  evidence  Brandy  was  told  about  the
consequences of her plea did not prove she understood these consequences, it
undermined her claim that she did not understand the consequences of the plea
because she had not been told about them.3
¶13     As a result of  her incorrect claim that the  circuit court did not
proceed to the second step of Bangert, Brandy does not fully develop an argument
that the court erroneously concluded she understood the consequences of her plea.
We, however, conclude the court correctly ascertained she understood:   (1) that
she would be found unfit as a result of her plea, (2) what the potential dispositions
were, and (3) that the dispositional decision will be governed by the children’s
best interests.   See Therese S., 314 Wis. 2d 493, ¶22.
¶14    First,  although  the  court  acknowledged  it  did  not  use  the  term
“unfit,” it nevertheless reasonably concluded Brandy understood the essence of
3 In her reply brief, Brandy contends the court’s disbelief of her testimony she did not
understand the consequences of her plea was not sufficient to meet the County’s burden.   The
problem  with  this  argument  is  that  Brandy’s  postdisposition  testimony  contradicts  earlier
statements she made.  Brandy would have us conclude that once she established the plea colloquy
was defective, the court was required to take at face value the testimony she gave at the
postdisposition  hearing—or  at  the  very  least,  that  it  could  not  rely  on  it  to  evaluate  the
truthfulness of her earlier claims to understand certain things.   The point of proceeding to the
second step in the Bangert analysis, however, is to determine whether, despite a defect in the plea
colloquy, the plea was knowing and intelligent.   This necessarily includes determining whether a
person who earlier professed to understand something meant it.
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Nos.   2009AP1357, 2009AP1358
this finding.4   A finding of unfitness provides the basis for a court to terminate a
parent’s rights and “concludes the first step of the termination process, where the
burden is on the government and the parent’s rights are paramount.”    Id.,  ¶6.
During the initial colloquy, the court confirmed Brandy understood her plea would
conclude the first step of the termination process, that she was giving up the right
to have the County prove grounds existed to terminate her parental rights, and that
the court would later hold a dispositional hearing at which it could terminate those
rights.   Brandy’s postdisposition testimony confirmed she understood this.   When
asked whether she understood her parental rights could be terminated if the court
found one of the grounds alleged, she responded, “I mean, that’s like common
sense right there, yeah.”
¶15    Second,  the  circuit  court  concluded—and  we  agree—the  plea
colloquy  itself  established  Brandy  understood  the  potential  dispositions.    As
relevant here,  the  potential dispositions were  to either  dismiss the  petition or
terminate Brandy’s parental rights.   See WIS. STAT. § 48.427(2)-(3).   During the
colloquy, Brandy repeatedly confirmed she understood the court could terminate
her parental rights after the dispositional hearing.
¶16    Third, the circuit court conceded it did not directly inform Brandy its
ultimate dispositional decision would be based on the children’s best interests.
However,  it  concluded  Brandy  understood  this  standard  because  her  attorney
4 For its part, the County argues the court’s failure to advise Brandy about unfitness did
not matter.   This is based on the County’s assertion that Oneida County v. Therese S., 2008 WI
App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122, was wrongly decided.   The County rather
brazenly makes this argument without acknowledging Therese S. is a published decision and we
are bound by it.   In any event, we need not address this issue because we conclude the County
proved by clear and convincing evidence Brandy understood she would be found unfit as a result
of her plea.
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Nos.   2009AP1357, 2009AP1358
wrote  it  on  the  plea  questionnaire  form and  likewise  testified  he  specifically
discussed this part of the form with her.   While Brandy is correct that evidence the
plea  questionnaire  contained  the  best  interests  standard  would  not  alone  be
sufficient  to  assure  her  understanding  of  this,  it  does  support  the  court’s
conclusion.5   Brandy’s claim not to understand the standard hinged on her own
contradictory claims about whether she reviewed the plea questionnaire and her
allegation her attorney did not explain it to her.   Her attorney’s testimony rebutted
these  assertions.    Therefore,  the  court  could  reasonably conclude  Brandy did
understand the plea questionnaire—including that the standard at the dispositional
hearing would be the children’s best interests—as she initially said she did.
By the Court.—Orders affirmed.
                                                                                                       This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                              (b)4.
5 The parties disagree about the application of State v. Hoppe, 2009 WI 41, 317 Wis. 2d
161, 765 N.W.2d 794, here.   Hoppe holds that “[a] circuit court may not … rely entirely on the
Plea  Questionnaire/Waiver  of  Rights  Form  as  a  substitute  for  a  substantive  in-court  plea
colloquy.” Id., ¶31.   There is no doubt the court could not satisfy its mandatory duties, here,
simply by relying on the questionnaire.  That, however, resolves only the first step in the Bangert
analysis.   The second step requires discerning whether, despite the colloquy defect, the parent
understood the consequences of the plea.   This may include evaluating testimony about how the
questionnaire was completed and what the parent earlier claimed to understand.   Indeed, Hoppe
acknowledged, “The Plea Questionnaire/Wavier of Rights Form provides a defendant and counsel
the opportunity to review together a written statement of the information a defendant should
know before entering a guilty plea.   A completed Form can therefore be a very useful instrument
to help ensure a knowing, intelligent, and voluntary plea.”  Id., ¶32.
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