State v. M.B., 2022AP89, District 1, 7/19/22 (one-judge decision; ineligible for publication); case activity

M.B. entered a no contest plea to failing to assume parental responsibility and to her daughter being in continuing need of protection or services. During the plea colloquy, the circuit court suggested she had the “same trial rights” at the dispositional phase as at the grounds phase. (¶¶3-4). This, M.B. argues, was a flaw in the colloquy because it misstated the correct statutory standard to be applied at disposition—the best interests of the child—and suggests the state had a burden it doesn’t have; thus, she should be allowed to withdraw her plea. (¶¶11, 13). The court of appeals disagrees.

¶12    “[T]he parent must be informed of the statutory standard the court will apply at the second stage.” [Oneida County v.] Therese S., [2008 WI App 159,] 314 Wis. 2d 493, ¶16[, 762 N.W.2d 122. “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[.]’” Id. (citation omitted). As the State contends, Mary was fully aware that the standard to be applied at the disposition was the best interest of the child and that this was a determination made by the judge. During the plea colloquy, the trial court properly informed Mary that the disposition would be a trial to the court and the best interest of the child standard would apply. Specifically, the trial court stated, “Now, at that second phase that we talked about where I decide whether it’s in [Grace]’s best interest to have your parental rights be terminated, you again have a right to a trial about that, although, it’s just a trial to me, the judge, not to a jury.”


¶14     Assuming that Mary understood the trial court to be referring back to its statement that the State bears a burden of proving the grounds by clear, convincing, and satisfactory evidence when it used the phrase “trial rights,” the record clearly shows that Mary was otherwise informed that the standard applicable to the disposition was the best interest of the child and that this was a determination left to the judge. This was all that was necessary to provide to Mary. See Therese S., 314 Wis. 2d 493, ¶16.

¶15     …. Additionally, as the trial court correctly highlighted at the postdisposition hearing, the State, as the petitioner seeking to terminate Mary’s parental rights, ultimately bears some burden at the disposition. “The State is the driving engine seeking that outcome,” and “it’s the State that’s going to have to convince the [c]ourt” that it is in the child’s best interest to terminate the parent’s rights.”

The court of appeals also rejects M.B.’s argument that the record doesn’t support the circuit court’s findings of fact on which it premised its termination decision. (¶¶17-22).