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TPR – No Contest Plea, Withdrawal of – Prima Facie Showing re: Grounds and Potential Disposition

Oneida Co. DSS v. Therese S., 2008 WI App 159


Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):

¶16      Thus, at the very least, 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. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that “[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition ….” Wis. Stat. § 48.426(2).

¶17      We decline, however, to adopt the expansive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination. …

Potential Disposition

¶8 Regarding the first alleged deficiency, it is undisputed that the circuit court never etablished on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶9 The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis “[b]efore accepting an admission ….” Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶26, 255 Wis. 2d 170, 648 N.W.2d 402.

¶10 We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. …

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