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  • WisBar News
    February 11, 2011

    Supreme court clarifies colloquy requirements before plea in parental termination case 

    A parental termination case has two phases. First, the government must prove that a parent is unfit. Second, the circuit court must decide whether terminating the unfit parent’s parental rights is in the best interest of the child. The Wisconsin Supreme Court recently clarified the circuit court’s obligations when a parent enters a plea in the first phase.

    Supreme court clarifies colloquy requirements   before plea in parental termination case Feb. 11, 2011 – When a parent pleads no contest to a ground for parental termination, it is not necessary for the court to inform the parent that he or she is giving up a constitutional right to parent, or to inform the parent of potential but improbable dispositions.

    In Brown County Department of Human Services v. Brenda B., 2010AP321 (Feb. 4, 2011), the Wisconsin Supreme Court – in an opinion written by N. Patrick Crooks – ruled that the circuit court did not err in denying a mother’s (Brenda’s) motion to withdraw a no contest plea after the court terminated her parental rights.

    In 2009, the Brown County Department of Human Services filed a petition for involuntary termination of Brenda’s parental rights. Brenda opposed the petition.

    The county alleged two grounds for termination – that Brenda’s child was in continuing need of protection or services and Brenda failed to assume parental responsibility.

    One day before trial, Brenda’s attorney advised the court that she intended to plead no contest to the petition’s allegation that her child was in need to continuing protection or services, thus waiving her right to contest that ground. The county agreed to dismiss the other ground.

    Before entering the plea, the circuit court engaged Brenda in colloquy to determine whether she knowingly, voluntarily, and intelligently intended to plead no contest. Based on the plea, the circuit court entered a finding that Brenda was unfit, and used its discretionary power in the second phase of the termination proceedings to terminate Brenda’s parental rights.

    Brenda filed a motion to withdraw the no contest plea, arguing that she did not plea knowingly, voluntarily, or intelligently. The circuit court denied the motion, and the appeals court affirmed.

    The Wisconsin Supreme Court granted review to decide whether Brenda presented a prima facie case that her plea was not entered knowingly, voluntarily, and intelligently.

    Constitutional right to parent 

    Brenda argued that the circuit court was required to inform her that entering a no contest plea meant she was waiving her constitutional right to parent. The supreme court disagreed.

    “[I]t is not accurate to say that a parent loses his or her constitutional right to parent if the court accepts a no contest plea during the grounds phase,” Justice Crooks wrote. “Rather, the immediate consequence of the plea is that the parent will be found to be unfit.”

    Because a finding that a parent is unfit does not automatically result in parental termination, the court held that the circuit court “was not obligated to inform Brenda that, upon acceptance of the plea, she would lose her constitutional right to parent [the child].”

    However, the court also explained that a circuit court cannot accept a no contest plea unless the parent has sufficient information to know the rights she is releasing, including procedural trial rights, the right to make petitioner prove unfitness, and the right to a fact-finding hearing.

    “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.”

    The supreme court agreed that a parent must be informed about the rights that could be lost in the event of termination, but dismissed appellate counsel’s argument that it must explain that a right to parent derives from the constitution.

    “What is essential is that a parent understands the nature and import of the rights involved – not necessarily the source of those rights.”

    Knowingly, voluntarily, and intelligently 

    The supreme court explained that Brenda gave up her rights to contest the grounds for termination, and did not meet her burden to demonstrate that she did so unknowingly.

    Brenda argued that the pre-plea colloquy was deficient because the court did not make her aware of all potential dispositions that could be entered after a plea of no contest, as required by Oneida County D.S.S. v. Therese S., 2008 WI App. 159, 314 Wis. 2d 493, 762 N.W.2d 122.

    The circuit court informed her of two potential dispositions – dismissal and termination – but those are just two of five under Wis. section 48.427, she argued. The supreme court disagreed.

    “In a case such as this where the likely guardianship and custody of the child is known to all parties, it does not further the purpose underlying the colloquy to inform the parent about hypothetical but improbable outcomes,” Justice Crooks wrote.

    Thus, the supreme court agreed with the Therese S. court that the dispositional aspect of a knowing, voluntary and intelligent plea only requires the circuit court to inform a parent of the two independent dispositions under section 48.427 – dismissal and termination.


    Leonard Kachinsky of Sisson & Kachinsky Law Office, Appleton, represented Brenda B. Robert Collins, corporate counsel for Brown County, represented the Brown County Department of Human Services.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

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