State v. P.T., 2016AP1460, 1/24/17, District 1 (1-judge opinion; ineligible for publication); case activity
P.T. challenged a circuit court decision terminating his parental rights to his son on 2 grounds: (1) his stipulation to ground for termination was not knowing, intelligent and voluntary under Bangert, and (2) the postdisposition court should not have reviewed the transcript of the stipulation colloquy when deciding issue (1). He lost on both counts.
First, the court of appeals explained why the lower court was correct to review the transcript of the stipulation colloquy:
¶14 To make a prima facie showing that he was entitled to an evidentiary hearing, P.T. needed to show that the circuit court failed to follow the mandatory procedures necessary to accept his stipulation. Steven H., 233 Wis. 2d 344, ¶42 (citing State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986)). One way to show that the circuit court failed to follow the necessary procedures is to look to the colloquy transcript. See State v. Hampton, 2004 WI 107, ¶47, 274 Wis. 2d 379, 683 N.W.2d 14 (“To obtain an evidentiary hearing based upon defects in the plea colloquy, the defendant will rely on the plea hearing record.”). A rule that the postdisposition court is unable to review the colloquy transcript would leave only the motion of the parent for the postdisposition court to review in determining whether a prima face case has been made. This would virtually eliminate the first step of the Bangert analysis. Furthermore, it would allow the parent to ignore any evidence that refutes their argument and provide the postdisposition court with an incomplete record.
Next, the court of appeals highlighted the evidence showing that P.T.’s stipulation was knowing, intelligent and voluntary.
¶17 [E]ven if we were to find that P.T. made a prima facie case, the evidence overwhelmingly shows that his stipulation was knowingly, voluntarily, and intelligently entered. P.T. alleges that he was under the impression he could continue working on his conditions of return due to the circuit court’s statements. While we disagree with P.T.’s characterization of the circuit court’s statements, nothing prohibited P.T. from continuing to work on meeting his conditions of return after his stipulation and before the dispositional hearing. In fact, this would only strengthen P.T.’s argument against termination at the dispositional hearing. One of the dispositional factors the circuit court must consider is whether “the child will be able to enter into a more stable and permanent family relationship as a result of the termination.” WIS. STAT. § 48.426(3)(f). One way for the circuit court to evaluate the parent’s stability is by looking to their participation in the CHIPS conditions of return. At the dispositional hearing, therefore, the circuit court acted appropriately when it considered P.T.’s enduring lack of participation in his CHIPS conditions when determining whether continuing the CHIPS order was in X.L.T.’s best interests.
¶18 P.T. further alleges that he believed that he could argue that his completion of the conditions of return was a defense against termination. This allegation is contradicted by a review of the colloquy transcript. During P.T.’s stipulation, P.T. affirmed that he understood he was giving up his right to trial and right to contest the continuing CHIPS grounds. The circuit court detailed what the dispositional hearing would entail, informing P.T. that the court would “focus on what’s best in this case for [X.L.T.],” and that the parties would submit evidence of what was in the child’s best interests. P.T. explicitly stated that he understood. To ensure that there was no confusion over what the dispositional hearing would consist of, the guardian ad litem noted that the dispositional hearing would look only to X.L.T.’s best interest and would not be looking at whether the parents met the conditions of return. To be sure, the circuit court informed P.T. that it is never too late for him to meet the conditions of return. However, the circuit court immediately followed up that comment by stating, in discussing the dispositional hearing, “what I’m going to be worried about is not whether somebody has met the conditions for return or not, but what I’m going to be worried about, what we’ll focus on in that hearing is what’s in [X.L.T.’s] best interests.” The circuit court then further clarified that, while the parents would have the opportunity to present evidence that they have met the CHIPS conditions, the circuit court “wouldn’t explicitly revisit the question of whether [the parents] had met the conditions for return.” P.T. again indicated that he understood.
