### COURT OF APPEALS DECISION DATED AND FILED September 4, 2019

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP1291 Cir. Ct. No. 2016TP175 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

I N RE THE TERMINATION OF PARENTAL RIGHTS TO M. I. G., A PERSON UNDER THE AGE OF 18:

S TATE OF W ISCONSIN ,
P ETITIONER -R ESPONDENT ,

V .
T. L. G.,

R ESPONDENT -A PPELLANT .

APPEAL from an order of the circuit court for Milwaukee County : LAURA GRAMLING PEREZ, Judge. Affirmed

.No. 2018AP1291

2 ¶1 KESSLER, J. 1 T.L.G. appeals an order of the circuit court terminating her parental rights to her son, M.I.G. T.L.G. argues that her no cont est plea was not knowing, voluntary, or intelligent because her cognitive li mitations prevented her from understanding the consequences of her plea. She also argues that her counsel did not accurately advise her about the applicable law. We affirm.

BACKGROUND

Procedural History
¶2 On May 31, 2016, the State filed a petition to terminate T.L. G.’s parental rights. The petition alleged that M.I.G. was a child in ne ed of continued protection or services (continuing CHIPS) and failure to assume parental responsibility.
¶3 At a hearing on December 12, 2016, T.L.G. requested new counsel. 2 The circuit court denied the request, but granted counsel’s request for a competency evaluation of T.L.G. and a determination of whether T.L.G. w as in need of a guardian ad litem (GAL). Dr. Kenneth Sherry conducted a co mpetency evaluation and determined that T.L.G. was competent to proceed with out the assistance of a GAL. At counsel’s request, Dr. Sherry conducte d a second evaluation and ultimately a GAL was appointed to assist T.L.G. in the proceedings.

1 This appeal is decided by one judge pursuant to W IS

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. § 752.31(2) (2017-18). All references to the Wisconsin Statutes are to the 2017-18 version unless ot herwise noted.

2 This was the second time T.L.G. requested new counsel. The circuit court initially appointed counsel from the State Public Defender’s Office. At a previous hearing, T.L.G. requested new counsel. The circuit court granted T.L.G.’s request.No. 2018AP1291

3 ¶4 On July 19, 2017, T.L.G. appeared with adversary counsel, her GAL, and an advocate from Casa Maria. The circuit court state d that it was informed that T.L.G. wished to plead no contest and that the court had a discussion with T.L.G.’s counsel in chambers to “make sure that I unde rstood where everybody was at in making that decision.” The court conf irmed with T.L.G. that she wished to plead no contest to grounds. The court conducted a colloquy with T.L.G. regarding the rights she was giving up by her no cont est plea. The court accepted T.L.G.’s no contest plea to the ground of cont inuing CHIPS, pursuant to W IS

. S TAT

. § 48.415(2), and proceeded to hear testimony from the ongoing case manager in support of this ground. 3 Based on T.L.G.’s no contest plea, the testimony adduced at the hearing, as well as t he documents related to the underlying CHIPS case, the circuit court found the Sta te had established grounds by clear and convincing evidence. T.L.G. was found unfi t, and the matter was adjourned for a contested disposition hearing.
¶5 Following the disposition hearings, the circuit court issued a writt en decision finding termination of T.L.G.’s parental rights to be in her child’s best
interest. The court found that while T.L.G. and the child were bonded and there was no adoptive resource, T.L.G. was unable to provide a safe living environment for the child, had not made significant progress in addressing her mental health issues, and was unwilling to consistently participate in the servi ces that would
assist her.

3 T.L.G. does not dispute that the circuit court’s colloquy co mplied with the requisites of W IS

. S TAT

. § 48.422(7). Rather, T.L.G. contends that the court was in error for re lying on the colloquy when T.L.G. did not understand the plea.No. 2018AP1291

4 Postdisposition
¶6 Following disposition, T.L.G. filed a notice of appeal. This c ourt remanded the matter to the circuit court. T.L.G. filed a postdi sposition motion alleging that her no contest plea was not knowing, voluntary, or intelligent because she did not understand the rights she was giving up and because she d id not understand that she “was giving up a claim that the Department did not provide reasonable efforts” to provide court-ordered services in an attemp t to reunify her with her son. T.L.G. alleged that her lack of understanding was a res ult of
inaccurate advice from her counsel.
¶7 At a hearing on the motion, T.L.G. testified that she pled no contes t because she “didn’t really understand [the plea],” and that her couns el “didn’t think I had a good chance of winning.” T.L.G. stated that she was unaware t hat the County was required to prove that the Department of Milwauke e Child Protective Services (DMCPS) made reasonable efforts to provi de the services that would help reunite T.L.G. with her son. She also stated that she wa s not aware that the County had to prove that T.L.G. failed to meet the conditions of return and would likely not do so within the following nine months. When asked spec ific questions about what T.L.G. did and did not understand when she pled no contest , T.L.G. responded: “I didn’t know what I was answering. You guys throw stuff at people and, you know, expect them to understand it. I don’t fully unde rstand the system. I don’t like it. I don’t agree with it.”
¶8 T.L.G.’s defense counsel, Jill Vento, also testified, telling the court that she ultimately advised T.L.G. to plead no contest after “ass ess[ing] the statutory factors. So number one. [M.I.G.] was a child who was found t o be in need of protection or services with a dispositional order. He had been out of theNo. 2018AP1291

5 home for six months or more. She had not met the conditions for re turn. The Department had made reasonable efforts, and it was unlikely that she was going to
meet the conditions within the next nine months.” Vento stated that T .L.G.’s cognitive limitations made it difficult for T.L.G. to “connect the dots,” in that T.L.G. did not understand how she was failing to meet the conditions for her son’s return. Vento stated that her decision to advise T.L.G. to pl ead no contest was strategic “[g]iven that the Department made reasonable effort s, that she didn’t meet the strict statutory requirements of the CHIPS disposi tional order, out of the home for six months, those things were not even at issue. We had a cha nce to win at the dispositional hearing because I felt I could establish that she had a substantial relationship with [M.I.G.].” T.L.G. asked Vento if she told T.L.G. that if a jury does not find that the Department made reasonable eff orts then the jury
does not consider whether T.L.G. met the conditions for return. Vento responded “I got to the point where we assessed did they make reasonable efforts, and my conclusion was yes, they did.”
¶9 The postdisposition court denied T.L.G.’s motion. The court stated “while I have found that the plea itself satisfies the require ments, the question is whether [T.L.G.’s] testimony today is credible vis-a-vis the te stimony of other witnesses, and by and large I do not find it to be credible re lative to the alleged claim she did not know, as has been alleged, that she could have chal lenged reasonable efforts instead of entering her plea.” This appeal follows.

DISCUSSION
¶10 On appeal, T.L.G. argues her plea was not knowing, voluntary, or intelligent because “counsel misinformed her, and she did not understand that theNo. 2018AP1291

6 County’s failure to make reasonable efforts was both [an] element an d a defense in the TPR petition.”
¶11 When a parent alleges that a stipulation was not knowingly, voluntarily, and intelligently made, we apply the Bangert analysis. 4 See Waukesha Cty. v. Steven H. , 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607.
Under the Bangert

analysis, the parent “must make a prima facie showing that the circuit court violated its mandatory duties and he [or she] must a llege that in fact he [or she] did not know or understand the information that should have be en provided at the ... hearing.” Steven H. , 233 Wis. 2d 344, ¶42. “If [the parent] makes this prima facie showing, the burden shifts to the [State] to demonstrate by clear and convincing evidence that [the parent] knowingly, voluntarily and intelligently waived the right to contest the allegations in the p etition.” Id. If the parent fails to make a prima facie case, the circuit court may deny the motion without an evidentiary hearing. See id. , ¶43. Whether a parent has presented a prima facie case is a question of law that we review de novo

. See Oneida Cty.
DSS v. Therese S. , 2008 WI App 159, ¶7, 314 Wis. 2d 493, 762 N.W.2d 122. In doing so, we look to the totality of the circumstances and the entire record to determine the sufficiency of the circuit court’s colloquy. See Steven H. , 233 Wis. 2d 344, ¶42.
¶12 We conclude that the postdisposition court performed a thorough Bangert analysis and found that T.L.G.’s plea was knowing, voluntary, and intelligent. See Steven H. , 233 Wis. 2d 344, ¶ 42. As a result, the court found that T.L.G. had not established a prima facie case that an evidentiar y hearing was

4 See State v. Bangert , 131 Wis. 2d 246, 389 N.W.2d 12 (1986).No. 2018AP1291

7 necessary, and denied her motion. See id. , ¶43. In our review of the record, we
come to the same conclusion.
¶13 At the postdisposition hearing, T.L.G.’s testimony centered les s on her plea and more on her frustration with the termination process as a whole. She testified: “I knew I was going to have a court date and I was going t o be called to testify. I simply did not want you guys to terminate my rights or whoever did, the judge or you guys.... I want to be done working with you guys.” T.L.G. testified that she was upset about losing her son and being “TPR’d,” tellin g the court “I don’t like what happened in court, and I don’t like that my rights were terminated. I don’t think this is a fair system.” When asked specific quest ions about what she remembered or understood, T.L.G. testified that she did not remem ber what Vento had told her about the County’s responsibility to make reasonable e fforts, that she did understand she would be found unfit, and that she did not remember b eing
advised about the best interest of the child standard. Vento test ified that she
worked with T.L.G. to the best of her abilities. Vento testified that she independently arrived at the conclusion that DMCPS made reasonable efforts and made a strategic decision to focus on the strength of T.L.G.’s case a t disposition rather than at the grounds hearing. 5

¶14 The postdisposition court found T.L.G.’s testimony to be “in dir ect contradiction” of T.L.G.’s plea testimony and found her to be not cre dible. Specifically, the court stated, “to the extent that [T.L.G.] sugges ts she did not

5 T.L.G. first asserts that because trial counsel did not under stand the sequential nature of the relevant jury instruction, W IS JI—C HILDREN 324A, as it applies to reasonable efforts, her plea was not knowing, intelligent, and voluntary. Because the record suppor ts the postdisposition court’s decision, particularly counsel’s testimony about her stra tegic decisions, we need not address this issue.No. 2018AP1291

8 understand or know about things, the court does not find that credible, par ticularly compared with the transcript of [the plea] hearing .” We acc ept the court’s findings. See Nicholas C.L. v. Julie R.L. , 2006 WI App 119, ¶23, 293 Wis. 2d 819, 719 N.W.2d 508 (When the postdisposition court acts as fact-finder, it is the assessor of witness credibility and we will not overrule the c ourt’s credibility determination unless the court’s findings are patently incredible.). Accordingly, we conclude that the record supports the postdisposition court’s fi nding that T.L.G. has not made a prima facie showing that her no contest plea was not knowing, voluntary, or intelligent. 6

¶15 For the foregoing reasons, we affirm the order of the circuit court.
By the Court. —Order affirmed.
This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)4.

6 The State’s brief argues that Vento did not provide ineffec tive assistance of counsel. We note that T.L.G. did not raise a claim of ineffective assi stance of counsel in her brief, therefore we do not address this argument.