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COURT OF APPEALS
DECISION
DATED AND FILED
May 5, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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In re the termination of parental rights to Yasmine R. B.,
a person under the age of 18:
Oneida County Department of Human Services,
Petitioner-Respondent,
v.
Paris M. P., a/k/a Paris M. B.,
Respondent-Appellant,
Therese S.,
Respondent.
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APPEAL
from orders of the circuit court for Oneida
County: PATRICK
F. O’MELIA, Judge. Affirmed.
¶1 PETERSON, J. Paris
M. P. appeals orders terminating his parental rights to his daughter,
Yasmine R. B., and denying his postdisposition motion. Paris argues the evidence presented at his
motion hearing was insufficient to prove his no contest plea at the grounds
phase of the proceeding was knowing, voluntary, and intelligent. We affirm.
BACKGROUND
¶2 Oneida County filed a petition to terminate Paris’s parental rights to Yasmine. The same petition also sought to terminate the
parental rights of Yasmine’s mother, Therese S. For grounds, the petition alleged, among
others, that Yasmine was in continuing need of protection or services. Paris and Therese initially intended to
contest the petition and a fact-finding hearing was scheduled. Three days before the hearing, however, Paris signed a stipulated
agreement with the County. Under the
agreement, he would plead no contest to the continuing need ground and the
County would withdraw the other grounds.
Therese did not sign an agreement, but, the day of the hearing, the
court was informed that she would also plead no contest to the same ground. The court then held plea colloquies,
determined Paris’s and Therese’s pleas were knowing and voluntary, and accepted
the pleas. The court later held a disposition
hearing and terminated Paris’s and Therese’s parental rights to Yasmine.
¶3 Both Paris and Therese notified the court they intended to
seek postdisposition relief and asked the state to appoint postdisposition counsel. The attorney appointed to assist Paris filed a no-merit report with this court, concluding
there was no arguable basis for challenging the order terminating Paris’s parental
rights. Therese’s counsel, however, filed
a motion requesting Therese be permitted to withdraw her no contest plea due to
deficiencies in the plea colloquy. On appeal in Therese’s case, we concluded
her colloquy was defective and remanded for the circuit court to determine
whether, “at the time Therese entered her no contest plea, she understood: (1) she would be found unfit to parent as a
result of the plea, (2) the potential dispositions specified under Wis. Stat. § 48.427, and (3) that
the dispositional decision would be governed by Yasmine’s best interests.” Oneida County DSS v. Therese S.,
2008 WI App 159, ¶22, 762 N.W.2d 122. As
a result, we rejected Paris’s no-merit report,
concluding the same deficiencies applied to Paris’s colloquy.
¶4 Paris
then requested he be permitted to withdraw his plea. The circuit court held a hearing on the
motion at which it heard testimony from Paris and his trial counsel. The court found Paris understood the consequences of his plea.
It concluded Paris’s decision to not contest the grounds
phase of the termination proceeding “clearly was his choice and … was knowingly
and intelligently made.”
DISCUSSION
¶5 A party challenging a no contest plea “must make a prima
facie showing that the circuit court violated its mandatory duties of informing
the party of his or her rights,” and allege he or she “in fact, did not know or
understand [this information].” Kenosha
County DHS v. Jodie W., 2006 WI 93, ¶26, 293 Wis. 2d 530, 716 N.W.2d 845. If a party makes this showing, “the burden [then]
shifts to the county to establish by clear and convincing evidence that the
parent ‘knowingly, voluntarily and intelligently waived the right to contest
the allegations in the petition.’” Id. (citation omitted).
¶6 The County does not dispute Paris made the requisite prima facie showing. Therefore, the only issue in this appeal is
whether the County established Paris
knowingly, voluntarily, and intelligently waived the right to contest that grounds
existed to terminate his parental rights.
This is a question of constitutional fact. State v. Bangert, 131 Wis. 2d 246, 283, 389
N.W.2d 12 (1986). When we review
questions of constitutional fact, “we will uphold the circuit court’s findings
of evidentiary or historical facts unless the findings are ‘contrary to the
great weight and clear preponderance of the evidence.’” Jodie W., 293 Wis.
2d 530, ¶28 (quoting Bangert, 131 Wis. 2d at 283-84).
¶7 The County argues the evidence presented at the motion
hearing demonstrates Paris
understood (1) he would be found unfit to parent as a result of his no contest
plea, (2) what the potential dispositions were, and (3) the criteria the court
would use to determine whether to terminate his parental rights. Thus, it contends, the circuit court
correctly concluded Paris’s
plea was knowing and voluntary. We
agree. The court made numerous factual findings
based on Paris’s and his trial counsel’s testimony which amply support this
conclusion.
¶8 At the motion hearing, Paris
testified he understood that by signing the stipulated agreement he was admitting
grounds existed to terminate his parental rights. He also acknowledged that before he signed
the agreement his trial counsel, Brian Bennett, explained to him that if he
pled no contest, the court would find he was an unfit parent.
¶9 Bennett testified he met with Paris numerous times prior to the plea hearing,
and that he and Paris had been discussing the idea of changing his plea for
several weeks. He explained that he told
Paris if he
pled no contest “we would go to disposition and that we would argue that while
he was unfit, termination may not be proper. … Our odds were not
good, but I felt that they were better [than they would be were there] an
unsuccessful two-day jury trial on the [grounds] issues.” The court concluded this testimony indicated
Paris and Bennett had “discussed [the plea] … at some length and [the decision
to plead no contest] was strategic….” Accordingly,
it found Paris
understood his plea would result in an automatic finding that he was unfit to
parent Yasmine.
¶10 The court also determined the testimony indicated Paris was informed of the
potential dispositions under Wis. Stat. § 48.427. Bennett testified he informed Paris what the court could do at the disposition hearing
by reading to Paris
out of Wis. Stat. ch. 48 and
explaining what each option meant. The
court concluded Paris understood these options: “I think [Paris] understands what’s going on. [T]he testimony from Bennett was that he
explained to him the various dispositions, that is [Paris] you’re going to be
found unfit and here’s what can [happen] at disposition.”
¶11 The court further found Paris
understood the disposition would be guided by Yasmine’s best interest. Paris
explicitly acknowledged at the motion hearing he understood this was the criteria
the judge would use when determining whether to terminate his parental rights.
¶12 Paris
argues the court did not adequately consider his mental limitations at the
motion hearing. This argument is not
supported by the record. The court
acknowledged “Paris
has limitations. … And with
those difficulties it takes more to achieve the level of knowingly and
intelligently waiving anything of significance.” As a consequence, it concluded that to show Paris understood his plea
“more time is needed, more face-to-face time and more communication in
general.” It determined these
requirements were met by virtue of the numerous meetings Paris had with Bennett
to discuss his plea, along with testimony indicating Paris in fact understood the
consequences of his plea.
¶13 We conclude the circuit court’s factual findings are not
clearly erroneous and that these findings provide sufficient support for its
conclusion that Paris
knowingly and voluntarily waived his right to contest the grounds for
terminating his parental rights. Therefore,
we affirm the order denying Paris’s
request to withdraw his no contest plea.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.