July 9, 2024 – A circuit court did not err by relying in part on an adoptive parent’s promise when deciding to terminate the parental rights of a birth parent, the Wisconsin Supreme Court has ruled (7-0) in State v. B.W., 2024 WI 28 (June 27, 2024), with concurrences.

Chief Justice Annette Ziegler wrote the majority opinion, joined by Justices Rebecca Bradley, Rebecca Dallet, Brian Hagedorn, and Jill Karofsky.

Justices Ann Walsh Bradley and Janet Protasiewicz joined all but three paragraphs of the majority opinion, and both joined A. Bradley’s concurrence.

The Proceedings

In May 2021, the state filed a petition in Milwaukee County Circuit Court to terminate B.W.’s parental rights.

The state asked the circuit court to place the child, Bob, with D.D., an adoptive parent. B.W. and D.D. share another child.

During B.W.’s initial appearance, the circuit court told B.W. that “you have rights at trial,” in both the grounds and disposition phases of the termination-of-parental-rights (TPR) trial.

After explaining the process for the grounds phase – including a mention that the state must meet its burden by clear and convincing evidence – the circuit court told B.W. that “all those same trial rights would rise up again” during the disposition phase.

B.W. eventually pleaded no contest to the grounds phase. The circuit court told B.W. that he would have “all those same trial rights” in the disposition phase.

The circuit court decided to terminate B.W.’s parental rights.

The circuit court determined that the harm caused by that decision would be mitigated by Bob being placed with D.D., because: 1) Bob was thriving since being placed with D.D.; and 2) B.W. and D.D. had a relationship.

Post-disposition Motion; Appeals

B.W. filed motion to withdraw his plea.

He argued his plea wasn’t knowing, voluntary, and intelligent because the court told him the state would have to meet the clear-and-convincing burden during the disposition phase.

A different circuit court denied B.W.’s motion.

B.W. appealed. On appeal, B.W. argued for the first time that the circuit court had: 1) failed to adequately considered whether termination of his parental rights would harm Bob; and 2) unduly relied on D.D.’s testimony.

The Court of Appeals affirmed the circuit court. B.W. appealed.

Burden Only for Grounds Phase

Chief Justice Annette Ziegler began her opinion for the majority by explaining that to succeed on his motion, B.W. must show that: 1) the circuit court violated its mandatory duties; and 2) he neither knew nor understood the information that the circuit court should have given him during the colloquy.

Ziegler concluded that B.W. failed to make that showing.

She acknowledged that the circuit court had told B.W. during the plea colloquy that the state had a burden of proving by clear convincing evidence that grounds existed for the TPR.

However, Chief Justice Ziegler wrote, “The record reflects that the court was referring to the burden of proof at the grounds phase, not the dispositional phase.”

Ziegler pointed out that the circuit court had never mentioned the clear-and-convincing burden for the disposition phase. Rather, she noted, the circuit court had repeatedly mentioned the “best interest of the child” standard.

“A closer look at the record demonstrates that, while the court did explain that B.W. would have the ‘same rights’ at the dispositional phase, the court never referred to the burden of proof at the grounds phase as a ‘right,’” Chief Justice Ziegler wrote.

Court Considered Factors

B.W. also argued that the circuit court, in deciding to terminate B.W.’s parental rights, had misrelied on D.D.’s testimony regarding her relationship with B.W. and Bob.

Specifically, B.W. argued that the testimony impelled the court to place undue weight on D.D.’s stated commitment to allow B.W. to continue to visit Bob. The circuit court had ignored that D.D.’s commitment was legally unenforceable.

B.W. argued that under State v. Margaret H., 2000 WI 42, a circuit court may not allow a TPR decision to “hinge” upon a legally unenforceable promise.

Ziegler acknowledged that Margaret H. also involved a promise by an adoptive parent. But she explained that in that case, the Supreme Court based its decision on the fact the circuit court hadn’t considered each of the statutory factors under section 48.426(3).

In B.W.’s case, Chief Justice Ziegler concluded, the circuit court had considered each of those factors.

“Requiring circuit courts to say on the record such things as, ‘I know this promise is unenforceable, but’ would be requiring circuit courts to use ‘magic words’ to exercise discretion appropriately,” Ziegler wrote.

Ziegler Concurrence

Chief Justice Ziegler argued in her concurrence that the majority should have clearly held that there is no burden of proof under section 48.426(2) during the disposition phase.

“The language of section 48.426(2) is plain and its interpretation straightforward,” Ziegler wrote. “Simply, there is no stated burden of proof at disposition of a TPR proceeding because the plain text of the statute does not provide for one.”

Chief Justice Ziegler argued that the legislature knows how to establish a burden of proof for determining whether an action is in the best interest of a child, and pointed to the following statutes, among others:

• section 48.437(3);

• section 48.357(4d); and

• section 48.355(3).

“The differences in the statues identifying a burden of proof imposed on the court versus statutes which omit a burden of proof in the Children’s Code show that the legislature deliberately chose to omit or include a burden of proof,” Ziegler wrote.

A. Bradley Concurrence

In a short concurrence, Justice Ann Walsh Bradley pointed out that neither party had presented or briefed the issues of whether a burden of proof exists at the disposition phase and if so, what that burden is.

Because of that, A. Bradley argued, the Supreme Court wasn’t obligated to decide whether the state meeting such a burden of proof was a parent’s right during a TPR trial, despite the majority’s discussion of that issue.

“The [majority] opinion could imply that something is not a ‘right’ unless the circuit court refers to it as such,” Justice A. Bradley wrote. “Clearly, a legal ‘right’ is a ‘right’ regardless of what the circuit court says or fails to say.”