## Facts

- Desmond F.’s mother, Brenda B., was Desmond’s biological parent.
- Desmond was adjudicated a child in need of protection or services (CHIPS) and placed outside Brenda’s home in an out-of-home placement with substitute caregivers.
- The Brown County Department of Human Services filed a petition to involuntarily terminate Brenda’s parental rights, alleging statutory grounds that included continuing CHIPS and failure to assume parental responsibility under Wis. Stat. § 48.415.
- Brenda initially opposed termination and requested a fact-finding hearing on the alleged grounds.
- Before the fact-finding hearing occurred, Brenda decided she did not want to contest the petition and chose to plead no contest to the grounds phase.
- During the plea hearing, the circuit court, Brenda’s lawyer, and the county’s lawyer warned Brenda about the serious effect of a no-contest plea in a termination-of-parental-rights (TPR) case.
- After accepting the plea and finding Brenda unfit at the grounds phase, the circuit court held the dispositional phase and determined that termination was in Desmond’s best interests.
- Following disposition, Brenda moved to withdraw her no-contest plea, arguing that it was not knowing, voluntary, and intelligent because the plea colloquy did not adequately explain (a) what rights she was giving up and (b) what outcomes were possible at disposition.
- The circuit court denied plea withdrawal. The court of appeals affirmed, and the Wisconsin Supreme Court granted review.

## Issues

1. Must a circuit court, before accepting a parent’s no-contest plea to grounds in an involuntary TPR case, expressly advise the parent that the plea waives a “constitutional” right to parent?
2. Must the plea colloquy advise the parent of the dispositional alternatives available after a finding of unfitness, including that the court may either dismiss the petition or terminate parental rights?
3. Did Brenda make the required prima facie showing that the colloquy was defective and that she did not understand the missing information, entitling her to plea withdrawal proceedings?

## Decision

- The Wisconsin Supreme Court affirmed the orders terminating Brenda’s parental rights and denying her motion to withdraw her no-contest plea.
- The court held that the circuit court was not required to tell Brenda that she was waiving her “constitutional right to parent,” nor was it required to label the right to parent as “constitutional,” so long as the record showed she understood the substance of what was at stake.
- The court clarified that a parent must be informed that, at disposition, the circuit court has two independent options: it may dismiss the TPR petition or it may terminate parental rights.
- Applying these standards to the record, the court concluded the plea colloquy and surrounding record satisfied the required advisements and Brenda failed to establish a prima facie basis for plea withdrawal.

## Legal Principles

- A parent’s no-contest plea to grounds in an involuntary TPR proceeding must be knowing, voluntary, and intelligent, consistent with due-process protections.
- Wisconsin TPR cases proceed in two phases: (1) grounds, where unfitness is determined (by trial or by plea), and (2) disposition, where the court decides what outcome serves the child’s best interests; a finding of unfitness does not by itself require termination.
- The circuit court need not describe the parent’s interest in parenting using the word “constitutional.” The focus is whether the parent understands the nature of the rights at stake and the serious consequences tied to the plea.
- Because disposition remains a separate decision after unfitness, the parent must be told that the court can choose between dismissing the petition and terminating parental rights.
- A parent seeking to withdraw a no-contest plea based on an alleged colloquy defect must first make a prima facie showing (1) that the colloquy was deficient under governing requirements and (2) that the parent did not know or understand the information that should have been provided. Without that showing, the burden does not shift to the petitioner to prove the plea’s validity.

## Conclusion

The Wisconsin Supreme Court affirmed termination and denial of plea withdrawal, holding that a TPR plea colloquy does not have to label the right to parent as “constitutional,” but it must ensure the parent understands the serious consequences of the plea and that, at disposition, the circuit court may either dismiss the petition or terminate parental rights; on this record, Brenda did not show a colloquy defect and lack of understanding sufficient to reopen the plea.


In re Desmond F., 795 N.W.2d 730 (2011)