Racine County HSD v. Roseannah M. H., 2011AP1776, District 2, 1/11/12
On this TPR appeal by the County, the court of appeals upholds an order granting Roseannah’s motion to withdraw her admission to grounds. Such an admission must be knowing, intelligent and voluntary, per colloquy governed by § 48.422(7) and due process, ¶5, citing Brown Cnty. DHS v. Brenda B., 2011 WI 6, ¶¶34-36, 331 Wis. 2d 310, 795 N.W.2d 730. On a challenge to the admission, the parent has an initial burden to show that the colloquy was deficient; if the parent meets that burden, then the petitioner must show that the admission was nonetheless knowing, intelligent and voluntary. Id. Here, the trial court ruled the colloquy deficient because it didn’t warn Roseannah that the outcomes flowing from her admission would be either dismissal or termination; and found that, although her admission was a strategic decision made with her attorney, she “perhaps discounted the possibility that the court would terminate her parental rights,” ¶7. The court of appeals affirms:
¶9 The first issue we address is whether Roseannah established a prima facie case that she did not enter her admission knowingly, voluntarily, and intelligently. We agree with the circuit court that Roseannah met this test.
¶10 Wisconsin Stat. § 48.422(7)(a) provides that before a circuit court accepts a parent’s admission to the allegations in a TPR petition the court must “[a]ddress the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.” When Roseannah entered her admission, the circuit court failed to inform her that as a result of her admission the two possible dispositions at stage two of the TPR proceedings were dismissal of the petition or termination of her parental rights. HSD counters that the colloquy was sufficient because after Roseannah admitted that Talia was in continuing need of protection or services in violation of Wis. Stat. § 48.415(2), the court read aloud the statute and added “unless the conditions are met … you would be in jeopardy of losing your parental rights.” This was not sufficient, as “a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination.” Oneida Cnty. DSS v. Therese S., 2008 WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122. As the circuit court admittedly did not do this, Roseannah established a prima facie case that she did not enter her admission knowingly, voluntarily, and intelligently.
¶11 We now turn to the second part of the test: whether HSD demonstrated by clear and convincing evidence that Roseannah knowingly, voluntarily, and intelligently admitted to the allegations that Talia was in continuing need of protection or services. The circuit court noted that Roseannah’s attorney testified that he discussed with Roseannah the possibility of her losing her parental rights. The court also indicated that it found her attorney credible. Nonetheless, the court granted Roseannah’s motion to withdraw her admission, finding that Roseannah “perhaps discounted the possibility that the court would terminate her parental rights.” As the circuit court is in the best position to judge witness credibility, we are reticent to reverse the court’s decision that Roseannah did not enter her admission knowingly, voluntarily, and intelligently. See Jenkins, 303 Wis. 2d 157, ¶33. We hold that HSD did not meet its burden of demonstrating by clear and convincing evidence that Roseannah knowingly, voluntarily, and intelligently admitted to the allegations in the TPR petition.
The trial court, it bears repeating, ruled that Roseannah had met her (purely procedural) burden of showing a prima facie case of a defective admission. In an arguably analogous situation – whether a defendant challenging jury selection has made a prima facie case for discrimination so as to shift the burden to the prosecution, the United States Supreme Court has observed, Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion):
The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 715 (1983). The same principle applies under Batson. Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.
That very approach has been adopted by the court of appeals, State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997) (“When the prosecutor offers a race-neutral explanation for peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing becomes moot,” citing Hernandez). Why wouldn’t it apply here?