COURT OF APPEALS
DECISION
DATED AND FILED
May 8, 2001
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
Nos. 00-3477, 00-3478
00-3479, 00-3480
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
No. 00-3477
In
re the Termination of Parental Rights to
Katarina
R.C., a Person Under the Age of 18:
Brown
County,
Petitioner-Respondent,
v.
Rochelle
D.,
Respondent-Appellant,
Gerardo
M.C.,
Respondent-Co-Appellant.
__________________________________________________________________
No. 00-3478
In
re the Termination of Parental Rights to
Carlos
C., a Person Under the Age of 18:
Brown
County,
Petitioner-Respondent,
v.
Rochelle
D.,
Respondent-Appellant,
Gerardo
M.C.,
Respondent-Co-Appellant.
__________________________________________________________________
No. 00-3479
In
re the Termination of Parental Rights to
Leila
M.C., a Person Under the Age of 18:
Brown
County,
Petitioner-Respondent,
v.
Rochelle
D.,
Respondent-Appellant,
Gerardo
M.C.,
Respondent-Co-Appellant.
__________________________________________________________________
No. 00-3480
In
re the Termination of Parental Rights to
Hector
C., a Person Under the Age of 18:
Brown
County,
Petitioner-Respondent,
v.
Rochelle
D.,
Respondent-Appellant,
Gerardo
M.C.,
Respondent-Co-Appellant.
APPEALS from orders of the circuit court for
Brown County: DONALD R. ZUIDMULDER, Judge. Affirmed.
¶1 PETERSON, J.[1] Gerardo
M.C. appeals orders terminating his parental rights.[2] He argues
that: (1) he was denied effective
assistance of counsel because counsel did not move to dismiss two of the three
alleged grounds that did not have a factual basis, thereby resulting in a plea
that was not knowingly and intelligently entered; (2) the circuit court did not
properly notify him of his right to substitution of a judge; and (3) the
circuit court violated his due process rights by relying on inaccurate
information at disposition. We disagree
and affirm the orders.
BACKGROUND
¶2 On July
6, 1999, Gerardo’s children, Katarina, Carlos, Leila and Hector, were removed
from his home. All four children were
subsequently adjudicated in need of protection or services, pursuant to Wis. Stat. § 48.13(3) and (3m). At the dispositional hearing, the circuit
court ordered out-of-home placements for the children, warned Gerardo of
possible grounds for termination of parental rights, and established a list of
conditions for him to meet before the children would be returned.
¶3 On May 5,
2000, the County filed petitions requesting termination of Gerardo’s parental
rights of the four children. The
petition alleged that grounds for termination of parental rights existed under Wis. Stat. § 48.415(1), (2) and (4).
¶4 On the
date scheduled for trial, Gerardo waived his right to a jury trial and entered
no contest pleas to the three grounds alleged in the petition. However, Gerardo reserved the right to
contest disposition. The circuit court
conducted a colloquy with Gerardo and found a factual basis to accept the
pleas.
¶5 At the
dispositional hearing, the circuit court found it was in the children’s best
interests to terminate Gerardo’s parental rights. Gerardo appealed. We
granted Gerardo’s motion for a remand to the circuit court for postjudgment
motions.
¶6 On
remand, Gerardo moved the circuit court to withdraw his no contest pleas. The court vacated the portion of the
termination orders finding legal
grounds for termination under Wis. Stat.
§ 48.415(1) abandonment and (4) continuing denial of periods of physical
placement or visitation because there was no factual basis to sustain these
allegations. The court additionally
found Gerardo’s counsel deficient for failing to move to dismiss the
unsupported grounds in the petition.
However, the court found that the deficiency was not prejudicial to
Gerardo.
¶7 The
circuit court denied Gerardo’s motion to vacate the portion of the termination
orders finding legal grounds for continuing need of protection or
services. See Wis. Stat. § 48.415(2).[3] This appeal followed.
DISCUSSION
I. Ineffective
Assistance of Counsel
¶8 Gerardo
argues that he was denied effective assistance of counsel because his counsel
failed to move to dismiss two of the three petition grounds that did not have a
factual basis. Consequently, he claims
he did not understand that he was pleading to three separate grounds rather
than making one plea. Had he known that
two of the three grounds lacked a factual basis, Gerardo claims he would have
contested the remaining ground at trial.
As a result, Gerardo concludes that he did not knowingly and
intelligently enter his plea.
¶9 To
prevail on an ineffective assistance of counsel claim, a defendant must
establish that counsel's actions constituted deficient performance and that the
deficiency prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, a defendant must demonstrate "that there
is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id.
at 694. Whether counsel's actions, if
deficient, prejudiced the defense, is a question of law this court reviews
independently. State v. Hubanks,
173 Wis. 2d 1, 25, 496 N.W.2d 96 (Ct. App. 1992).
¶10 The circuit
court concluded that Gerardo’s counsel was deficient for his failure to move to
dismiss the two grounds in the petition that lacked a factual basis. At the postjudgment hearing, counsel
testified that failure to move to dismiss was an oversight on his part. Because the State does not dispute that
Gerardo’s counsel was deficient, we address whether the deficiency was
prejudicial.
¶11 As in
criminal cases, parents subject to termination of their parental rights are
entitled to fundamental due process. In
re D.L.S., 112 Wis. 2d 180, 184, 332 N.W.2d 756 (1983). A defendant is entitled to withdraw a plea
as a matter of constitutional right if it is demonstrated that the defendant
did not understand the elements of the crime to which he or she pled. State v. Garcia, 192
Wis. 2d 845, 864, 532 N.W.2d 111 (1995).
In considering whether a plea is knowingly and intelligently made, the
court can consider the record as a whole to show that the defendant understood
the waiver of his or her constitutional rights. State v. Bangert, 131 Wis. 2d 246, 282, 389 N.W.2d
12 (1986). Whether a plea was knowingly
and intelligently made is a question of law we review independently. Id. at 267-72.
¶12 Here, the
issue is whether Gerardo knew he was making three separate pleas or whether he
thought he was making one plea to the entire petition. Gerardo does not cite any authority to
support his argument that his pleas were not severable. He simply argues that because there was not
a sufficient factual basis for him to enter a plea on the grounds of
abandonment and continuing denial of periods of physical placement, the order
finding grounds to terminate parental rights based upon continuing need of
protection and services should be vacated.
¶13 This
argument assumes that if the facts do not exist for two grounds, the facts for
the third ground are invalid. Here, it
is undisputed that the circuit court properly found a factual basis for the
continuing need of protection and services allegation. We conclude the record establishes that
Gerardo understood he was pleading to each ground alleged in the petition.
¶14 Through his
counsel, Gerardo told the circuit court that after “consideration of strategy
and review of the facts” of the case, he decided not to proceed with a jury
trial. In addition, while conducting a
plea colloquy with Gerardo, the court listed the elements of the allegations in
the petition by stating:
THE COURT: [Y]ou heard me describe to you that the grounds for these petitions were the CHIPS grounds which would be that the children have been outside the parental home for six consecutive months under an order that the Brown County Human Services Department made reasonable efforts to provide services for you as to – as set forth in the order, that you have failed to meet the juvenile court’s conditions for the return of the children to you, and the fourth question would be is there a substantial likelihood that you would not meet the conditions within one year after the termination of parental rights. That’s what the first grounds would be all about, and do you understand that, Mr. Colon?
GERARDO: Yes, I do.
THE COURT: The second grounds would be that they have been placed outside your home pursuant to court order. The second grounds would be that for a period of three months or longer that you failed to communicate with them. That’s the abandonment grounds. Do you understand those gounds?
GERARDO: Yes, I do.
¶15 While the
circuit court did not inquire of Gerardo regarding the continuing denial of
periods of physical placement or visitation ground, we are convinced that
Gerardo understood that each of the grounds alleged in the petition were
separate. His counsel stated they had
discussed strategy and Gerardo stated to the court that he understood the elements
of two of the grounds.
¶16 Gerardo
does not contest that a factual basis existed for the continuing need of
protection and services ground. Nor
does he argue that he did not understand the elements of the continuing need of
protection and services ground. Because
the record establishes that Gerardo was aware that he was entering separate
pleas to separate grounds, we conclude from the record as a whole that
Gerardo’s plea was knowingly and intelligently made. Accordingly, we conclude that counsel’s failure to move to
dismiss two of the three grounds did not prejudice Gerardo.
II. Right to
Substitution
¶17 Gerardo
next argues that he was not properly informed of his right to substitution of a
judge pursuant to Wis. Stat.
§ 48.422(5).
¶18 In In
re Kywanda F., 200 Wis. 2d 26, 37, 546 N.W.2d 440 (1996), the supreme
court held that a circuit court's failure to inform an alleged delinquent of
the right to substitution is harmless error unless the party establishes actual
prejudice. Relying on a termination of
parental rights case, In re Robert D., 181 Wis. 2d 887, 891-92,
512 N.W.2d 227 (Ct. App. 1994), the supreme court held that "[i]n the case
of the right to substitution, we conclude that actual prejudice is shown if it
is established that the juvenile was not told of the right and did not know of
that right." Kywanda,
200 Wis. 2d at 37. The court concluded
that the prejudice suffered by the juvenile is the lost opportunity to
substitute the judge due to ignorance of the right. Id.
¶19 When
determining whether failing to inform of the statutory right to substitution
was reversible error, the parent must first make a prima facie showing that the
court violated its mandatory statutory duties and allege that he or she in fact
did not know of the information that the court was statutorily required to
provide. See id.
at 38. If a prima facie showing is
made, the burden shifts to the County to demonstrate by clear and convincing
evidence that the person knew of the statutory right and therefore was not
prejudiced. See id. The County may utilize any evidence to
substantiate knowledge of the right, including testimony from the person's
counsel. See id.
¶20 It is
uncontested that the circuit court did not inform Gerardo of his right to
request a substitution of judge at the initial appearance. Gerardo’s counsel testified at the
postjudgment hearing that he did not have a specific recollection of advising
Gerardo about his right to substitution of a judge. However, counsel testified that it is his customary practice and
habit to tell “the client of their right to substitute the judge and advising
the client that they have to exercise that right at the time of the initial
appearance.”
¶21 Gerardo’s
counsel additionally testified that he has been taking these types of cases
since 1995 and that he takes many public defender appointments concerning
termination of parental rights. The
circuit court found that counsel’s testimony and experience supported a finding
that he followed his regular habit of instructing clients regarding their right
to substitution of a judge and that he followed this practice with
Gerardo. See Wis. Stat. § 904.06. We conclude that the record supports a
finding Gerardo was timely notified of his right to substitution of a
judge.
III. Due Process
¶22 Last,
Gerardo argues that he was denied due process because the dispositional
decision to terminate his parental rights was based in part upon inaccurate
information. He contends that the
grounds for which there did not exist a factual basis was relevant to the
determination of whether there was a substantial relationship between the
parent and the child. Wis. Stat. § 48.426(3)(c).
¶23 It is well
established that the determination of the child’s best interests is committed
to the circuit court's discretion. In
re Brandon S.S., 179 Wis. 2d 114, 150, 507 N.W.2d 94 (1993). The court properly exercises its discretion
when it employs a rational thought process based on an examination of the facts
and application of the correct standard of law. Id.
¶24 The circuit
court must apply the standard and factors set forth in Wis. Stat. § 48.426 when determining the disposition. The best interests of the child are
paramount. Wis. Stat. § 48.426(2).
The best interests of the child are determined by examining, among other
things, the likelihood of the child's adoption after termination, the child's
age and health, whether the child has substantial relationships with the parent
or other family members and if it would be harmful to sever those
relationships, the wishes of the child, how long the child has been separated
from the parent, and whether a new environment will provide a more stable and
permanent family relationship. Wis. Stat. § 48.426(3).
¶25 Here, the
circuit court applied the best interests standard and the above factors in
reaching its decision. The court
informed Gerardo that application of Wis.
Stat. § 48.426 was not about him, rather it was about what was best
for the children. The court found that
the children would be adoptable. It
also found that the children were young and that they were in a stage in their
life that termination was “good for them.”
The court additionally found that the children were in a chaotic and
abusive relationship with Gerardo and were too young to express their
wishes. Last, the court determined that
the children would be able to enter into a more stable and permanent family
relationship.
¶26 The record
establishes that the various grounds stated in the petition for which there was
not a factual basis did not enter in to the court’s decision under Wis. Stat. § 48.426. The circuit court correctly concluded that
the children’s best interests were to be "the prevailing factor" in
determining a disposition. Wis. Stat. § 48.426(2).
¶27 We conclude
that the circuit court applied the correct law to the relevant facts, engaged
in a process of reasoning, and reached a determination which a reasonable judge
could reach. Burkes v. Hales,
165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). Gerardo’s due process rights were not violated, and the court did
not erroneously exercise its discretion in terminating his parental rights.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] On remand, the trial court vacated the order terminating Rochelle D.’s parental rights to all four children. Therefore, her appeal is moot.
[3] Wisconsin Stat. § 48.415(2) reads as follows:
Continuing need of protection or services. Continuing need of protection or services, which shall be established by proving any of the following:
(a) 1. That the child has been adjudged to be a child or an unborn child in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).
2. a. In this subdivision, "reasonable effort" means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child or of the expectant mother or child, the level of cooperation of the parent or expectant mother and other relevant circumstances of the case.
b. That the agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide the services ordered by the court.
3. That the child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child; and that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing under s. 48.424.
(am) 1. That on 3 or more occasions the child has been adjudicated to be in need of protection or services under s. 48.13 (3), (3m), (10) or (10m) and, in connection with each of those adjudications, has been placed outside his or her home pursuant to a court order under s. 48.345 containing the notice required by s. 48.356 (2).
2. That the conditions that led to the child's placement outside his or her home under each order specified in subd. 1. were caused by the parent.