Earlier this year, the Wisconsin Supreme Court again waded into the waters of termination of parental rights law in State v. A.G.¹

The Court, in its decision, addressed whether, A.G.’s plea was knowingly, voluntarily, and intelligently entered, based on the circuit court informing him during the plea colloquy that the State would have to prove at disposition that termination of parental rights was in the best interests of his child by “clear and convincing” evidence.

Wis. Stat. section 48.422(7) governs the requirements of an admission by a respondent parent in a termination of parental rights proceeding. Under this statute, there are a number of preconditions that must be explained to the respondent parent before the plea can be accepted.

This statute does not specifically require that the circuit court disclose that the standard of proof at the dispositional hearing is “the best interests of the child.”² However, published case law has determined that “the parent must be informed of the statutory standard the court will apply at the second stage … in order for the court's explanation of potential dispositions to be meaningful.”³

While Wis. Stat. section 48.426 identifies the standard of proof as the “best interests of the child,” there is no burden of proof listed in the statute.

The Supreme Court issued a lead opinion by Justice Rebecca Bradley and joined by Chief Justice Annette Ziegler, reversing the decision of the Court of Appeals. The concurrence, written by Justice Brian Hagedorn and joined by Justice Jill Karofsky, also agreed with the lead opinion to reverse the appeals court decision, but differed in its reasoning. The dissent by Justice Rebecca Dallet and joined by Justice Ann Walsh Bradley, would have affirmed the Court of Appeals decision.

Lead Opinion

The lead opinion held that A.G.’s plea was knowing, voluntary, and intelligent. Further, Wis. Stat. section 48.426(2) does not place a burden of proof on the petitioner.

However, in this case, because the circuit court held the petitioner to a burden of proof of clear and convincing evidence after telling A.G. that this was the burden of proof at the dispositional hearing during the plea colloquy, this did not affect A.G.’s ability to determine the positives and negatives of entering this particular no contest plea.

Further, the lead opinion held that, because the circuit court had held the petitioner to a clear and convincing burden and explained to A.G. in the plea colloquy, the Court held that the defect was an insubstantial defect under State v. Taylor.⁴

Concurring Opinion

While the concurring opinion ultimately comes to the same conclusion of as the lead opinion regarding the ultimate result of the case, it does not achieve it in the same way.

Importantly, the concurring opinion does not agree with the lead opinion, the dissent opinion, or even the Court of Appeals decision that A.G. was misinformed about the burden of proof in his initial plea colloquy.

The concurring opinion states that “A.G.’s argument on this point relies on a strained reading of the record,” and that, while “the circuit court could have been a bit more precise” looking at the record both independently and as a whole, A.G. was not misinformed about the burden of proof at the dispositional hearing.⁵

Thus, because A.G. had not been misinformed about the burden of proof at the dispositional hearing, the concurring opinion did not find that there was any defect in the entry of the plea, and that it was entered knowingly, voluntarily, and intelligently.

Dissent

The dissenting opinion held that it was a “debatable conclusion” that there is no burden of proof at the dispositional hearing.⁶

It further notes that the State, as the petitioner in this case, “must – at a minimum – produce some evidence of the best interests of the child at the dispositional phase. Otherwise, the petition would be denied.” The dissent went on to note that, “given the weighty constitutional rights at play in TPR cases, other courts have held that the Constitution requires proof that termination is in the child’s best interests by a preponderance of evidence or clear and convincing evidence.”⁷

Conclusion: An Answer Is Still Pending

While the opinion serves to sharpen some doctrine in this area of law, it did not resolutely answer the main question of the case: Is there a burden of proof at disposition?

The leading opinion pronounced that there is no burden of proof, while the dissent suggested that there may be an additional burden beyond the child’s best interests. The concurrence did not state a position either way.

This question is at issue in several ongoing appellate cases, and there is some hope that it will be answered definitively by the Supreme Court in future cases.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹State v. A.G., 2023 WI 61.

²A.G. at ¶45.

³Oneida Cnty. Dep't of Soc. Servs. v. Therese S., 2008 WI App 159, ¶16.

⁴A.G. at ¶31-32, citing State v. Taylor, 2013 WI 34.

⁵A.G. at ¶46-47.

⁶A.G. at ¶ fn. 3.

⁷Id.