State v. D. H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 10, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP2668 Cir. Ct. No. 2021TP240

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO D.H.-S., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-APPELLANT,

COURTNEY L.A. ROELANDTS, AS GUARDIAN AD LITEM FOR D.H.-S.,

APPELLANT,

V.

D.H.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
LAURA GRAMLING PEREZ, Judge. Affirmed.
No. 2025AP2668

¶1 COLÓN, P.J.1 The State of Wisconsin and guardian ad litem
(GAL) Courtney L.A. Roelandts (together, Petitioners) appeal from an order
allowing D.H. to withdraw his no-contest plea as to the ground for termination in
this termination of parental rights (TPR) proceeding.2 Petitioners argue that the
postdisposition court erred when it (1) found that D.H. had made a prima facie
showing that his no-contest plea was not made knowingly, intelligently, and
voluntarily, based on a defect in the circuit court’s plea colloquy; and (2) found
that the State had failed to prove by clear and convincing evidence that D.H.’s plea
was made knowingly, intelligently, and voluntarily despite the defect in the plea
colloquy. For the following reasons, we affirm.3

BACKGROUND

¶2 On December 17, 2018, the State filed a petition to find Danielle 4 to
be a child in need of protection or services (CHIPS) and to remove Danielle from
the parental home. On July 23, 2019, a dispositional order was entered, outlining
the conditions for Danielle to return to the parental home. On November 3, 2021,
the State filed a petition to terminate D.H.’s parental rights, asserting as the ground

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
2
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3).
3
Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be
taken in an order that ensures that a decision is issued within 30 days after the filing of the
appellant’s reply[.]” RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a
delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in
this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680,
694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this
decision is issued.
4
We refer to the family in this matter by initials or pseudonyms to maintain
confidentiality and privacy, in accordance with WIS. STAT. RULE 809.19(1)(g).

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No. 2025AP2668

that D.H. had failed to assume parental responsibility. On November 29, 2021,
D.H. entered a denial to the petition and demanded a jury trial. At a hearing on
May 6, 2022, the circuit court went over the rights that D.H. had in the case,
specifically stating,

You have the right to contest the petition. The petition
involves a trial and the first part is regarding the
jurisdictional phase of the proceedings and if the jury or the
judge decides that the State has proven a ground or
grounds, then the [c]ourt must find you unfit and then we
move to the best interest phase of the proceedings which
would be a trial to the judge and the judge would determine
whether or not it is in the best interest of children either or
at least one child individually whether it’s in the child’s
best interest to terminate and grant the petition for
termination of parental rights or to dismiss it and resort to
some other alternative.

¶3 On December 19, 2022, D.H. chose to enter a no-contest plea as to
the ground. During the plea colloquy, the circuit court discussed D.H.’s
understanding of the plea process, the bifurcated procedures in TPR proceedings,
and the specific elements of the failure to assume parental responsibility ground.
D.H. confirmed that he had received and read a copy of the petition, had reviewed
it with his attorney, and understood its contents. When describing the disposition
phase of the proceedings, the court stated,

[T]hen we move to the best interest phase or the
dispositional phase and at that phase you would have all of
the rights we talked about earlier except your right to a jury
determination … you can force the petitioner to prove to a
reasonable certainty that adoption serves the best interest of
your child and if they don’t, then the petition has to be
dismissed and a different alternative would have to be
pursued.

¶4 Notably, the court had previously explained during the colloquy that
the standard of “a reasonable certainty” was “not beyond a reasonable doubt” but
also “not just a preponderance of the evidence[.]” The circuit court then

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No. 2025AP2668

confirmed that D.H. had discussed the plea with counsel, that he was satisfied with
counsel’s representation, and that D.H. had no questions about the plea. The court
then found that D.H.’s plea was informed and voluntary and allowed him to enter
the no-contest plea as to the ground.

¶5 On April 29, 2024, the circuit court heard evidence as to the ground
and found D.H. unfit to parent Danielle. A two-day dispositional hearing took
place on April 29, and May 3, 2024. The circuit court heard testimony and
ultimately concluded that the termination of parental rights had “been proven by
clear, convincing and satisfactory evidence.”

¶6 D.H. appealed, moving for a postdisposition hearing on the basis that
his no-contest plea was not made knowingly, intelligently, and voluntarily. 5 D.H.
asserted that the circuit court’s plea colloquy was defective when it essentially told
him that there was a burden of proof at TPR disposition.

¶7 An evidentiary hearing was held on November 10, 2025, at which
D.H.’s trial counsel testified. At the outset, the postdisposition court stated that it
believed that D.H. had made a prima facie case that the plea was not made
knowingly, intelligently, and voluntarily, based on the circuit court’s statement
that D.H. “could force the petitioner to prove to a reasonable certainty that
adoption serves the best interest of [the] child and if they don’t, then the petition
has to be dismissed.”

5
D.H. also made claims regarding ineffective assistance of counsel, but those claims
appear to have been abandoned on appeal.

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No. 2025AP2668

¶8 The postdisposition court then heard testimony from D.H.’s trial
counsel, who stated that he had described the best interest standard at TPR
disposition to D.H., specifically noting that he intentionally does not talk about
any burden of proof or mention it to his clients, instead focusing solely on the best
interest standard. Counsel stated that he had had numerous conversations and sent
multiple letters to D.H. outlining the TPR process and the ground alleged in the
petition. Counsel also stated that at no point in time did D.H. ask him about any
burden of proof at either the grounds phase or the disposition phase.

¶9 D.H. also testified at the hearing. He acknowledged that counsel had
reviewed the TPR petition with him and that counsel had sent him multiple letters
explaining the ground pleaded against him and the best interests standard at
disposition. D.H. stated that trial counsel never told him that there was any burden
of proof at disposition. D.H. stated that he did not know that there was a burden of
proof at disposition, although he did state that he was familiar with the concept of
burdens of proof from “[c]riminal cases.” When asked whether he recalled the
circuit court telling him that at disposition he could force the State to prove to a
reasonable certainty that adoption served the best interests of the child, D.H.
replied, “I believe so.” However, when asked whether he understood the court to
mean that there was a burden of proof at disposition, D.H. stated, “I didn’t know
that.” When asked, “You didn’t know that there was a burden of proof at
disposition?”, D.H. replied, “No.”

¶10 At the postdisposition hearing, the State further introduced evidence
which included:

 A letter dated November 9, 2021, from trial counsel to D.H.
explaining the TPR process and the ground alleged in the petition.

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No. 2025AP2668

 A letter dated April 8, 2022, from trial counsel to D.H. providing
D.H. with a copy of the TPR court report, explaining the ground
alleged in the petition, and explaining the “best interests of the
child” standard at disposition.

 A letter dated July 29, 2022, from trial counsel to D.H. explaining
the bifurcated process of a TPR case, including that the court would
be considering the best interests of the child at the dispositional
hearing, without mentioning any burden of proof.

 A letter dated December 20, 2022, from trial counsel to D.H.
reminding D.H. that he had pleaded no-contest as to ground at the
hearing the day before and that, at the dispositional hearing, they
would be arguing what was in Danielle’s best interests. This letter
also did not include any mention of a burden of proof at disposition.

¶11 The postdisposition court found that D.H. had made a prima facie
case that the plea colloquy was defective and that the plea had not been made
knowingly, intelligently, and voluntarily. In addition, the court found that the
State had failed to prove by clear and convincing evidence that D.H.’s plea was
made knowingly in spite of the defect in the plea colloquy. The court reasoned
that the State did not prove that D.H. was told by the circuit court that there was
no burden of proof at disposition, noting that the only time burden of proof was
specifically mentioned to D.H. was during the plea when the circuit court told him
that there was a burden of “reasonable certainty that adoption serves the best
interests of the child.” The postdisposition court therefore allowed D.H. to
withdraw his no-contest plea as to the ground for termination. The State and GAL
now appeal.

DISCUSSION

¶12 If a parent enters a plea at the grounds phase of a TPR case, the
circuit court must engage the parent in a colloquy to ensure that the plea is made
knowingly, intelligently, and voluntarily. Kenosha Cnty. DHS v. Jodie W., 2006

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No. 2025AP2668

WI 93, ¶25, 293 Wis. 2d 530, 716 N.W.2d 845. Notions of due process require
that the parent be provided with enough information to evaluate the stakes
involved and to understand the consequences of the plea. Brown Cnty. DHS v.
Brenda B., 2011 WI 6, ¶41, 331 Wis. 2d 310, 795 N.W.2d 730. A plea that is not
knowing, intelligent, and voluntary violates fundamental due process and a
defendant may withdraw the plea as a matter of right. State v. Brown, 2006 WI
100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906.

¶13 Allegations that a plea was not entered into knowingly are analyzed
under the framework set forth in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d
12 (1986); Oneida Cnty. DSS v. Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d
493, 762 N.W.2d 122. Within that framework, a parent seeking to withdraw his or
her plea based on the court’s failure to fulfill its duties in the plea colloquy must
make a prima facie case of a violation of the statutory duties and must allege that
the parent did not understand what should have been explained by the court.
Therese S., 314 Wis. 2d 493, ¶6. Whether a parent has presented a prima facie
case is a question of law we review de novo. Id., ¶7. If the parent sufficiently
makes a prima facie case, the burden shifts to the State to show by clear and
convincing evidence that the plea was entered knowingly, intelligently, and
voluntarily despite the defects in the plea colloquy. Id.

¶14 Whether the State has met this burden is a question of constitutional
fact. See State v. Gomolla, 2024 WI App 13, ¶18, 411 Wis. 2d 239, 4 N.W.3d
610. In our review, “we accept the circuit court’s findings of historical and
evidentiary fact unless they are clearly erroneous” and “[w]e independently
determine whether those facts demonstrate that the [parent’s] plea was knowing,
intelligent, and voluntary.” State v. Hoppe, 2009 WI 41, ¶61, 317 Wis. 2d 161,
765 N.W.2d 794. The parent’s “right to an evidentiary hearing … cannot be

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No. 2025AP2668

circumvented by either the court or the State asserting that based on the record as a
whole the [parent], despite the defective plea colloquy, entered a constitutionally
sound plea.” State v. Howell, 2007 WI 75, ¶7, 301 Wis. 2d 350, 734 N.W.2d 48.

I. The Insubstantial Defect Doctrine

¶15 At the outset, we address Petitioners’ argument that the circuit
court’s statement to D.H. advising him of a burden of proof at the dispositional
phase should be overlooked as an insubstantial defect. In essence, they argue that,
because the circuit court ultimately held the State to the burden of clear and
convincing evidence at disposition, D.H. got what he bargained for during his plea
colloquy, which would make his no contest plea knowing, intelligent, and
voluntary.

¶16 However, as noted by D.H., the insubstantial defect doctrine has
previously only been applied in a few very specific instances, primarily in criminal
cases where the circuit court informed the defendant of the wrong maximum
sentence, which are all distinguishable from the present case. See State v. Cross,
2010 WI 70, ¶4, 326 Wis. 2d 492, 786 N.W.2d 64 (“[W]here a defendant pleads
guilty with the understanding that he faces a higher, but not substantially higher,
sentence than the law allows, the circuit court has still fulfilled its duty to inform
the defendant of the range of punishments.”); State v. Taylor, 2013 WI 34, 347
Wis. 2d 30, ¶39, 829 N.W.2d 482; State v. Finley, 2016 WI 63, ¶¶33-34, 95, 370
Wis. 2d 402, 882 N.W.2d 761.

¶17 While it is true that courts generally consider “precedent regarding
plea withdrawal in the context of criminal cases to be persuasive authority
regarding TPR proceedings,” State v. A.G., 2023 WI 61, ¶18, 408 Wis. 2d 413,
992 N.W.2d 75 (citation omitted), we are not convinced that the insubstantial

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No. 2025AP2668

defect doctrine applies in this case. First, Cross, Taylor, and Finley are all
criminal cases which involved discrepancies in the circuit court’s plea colloquy
regarding the maximum possible length of sentence. In contrast, the present case
involves the circuit court’s defective plea colloquy as it relates to the burden of
proof to which it would hold the State at disposition. These are distinct and vastly
different issues which we are reluctant to analogize, particularly given the nature
of the rights at stake. See State v. Steven V., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678
N.W.2d 856 (stating that “[p]arental rights termination adjudications are among
the most consequential of judicial acts, involving as they do ‘the awesome
authority of the State to destroy permanently all legal recognition of the parental
relationship.’” (Citation omitted)). Furthermore, and as noted by the
postdisposition court, Taylor and Finley did not stand for the proposition that a
plea is made knowingly, intelligently, and voluntarily based solely on the fact that
a defendant got what he or she bargained for.

¶18 In addition to criminal cases, our supreme court applied the
insubstantial error doctrine in a case with a substantially similar issue in the lead
opinion in State v. A.G., 2023 WI 61, 408 Wis. 2d 413, 992 N.W.2d 75. In that
TPR case, A.G. was told during the grounds phase plea colloquy that he would
“have the right to force the State to prove the grounds by clear, convincing, and
satisfactory evidence to a reasonable certainty.” Id., ¶9. Later, at disposition,
A.G. was told that he had the “same trial rights” as he would have had at the
grounds phase of the proceedings. Id. A.G. later moved to withdraw his no
contest plea on the basis that the plea colloquy was defective because the circuit
court’s statement about there being a burden of proof at the grounds phase was
included in its statement that he would have all the “same trial rights” at
disposition. Id., ¶10. Our supreme court was thus tasked with determining

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No. 2025AP2668

whether A.G. should be permitted to withdraw his no contest plea which resulted
in a fractured opinion.

¶19 Our supreme court found itself divided into three positions, none of
which garnered a majority. The lead opinion applied the insubstantial defect
analysis to the plea colloquy, determining that the defect was insubstantial. Id.,
¶37. It cited to Taylor on the basis that, like the defendant in Taylor, A.G.
ultimately received what he bargained for. Id., ¶36. However, both the
concurring and dissenting opinions in A.G. rejected the use of the insubstantial
defect analysis. Petitioners ask this court to follow the lead opinion in A.G. and
apply the insubstantial defect analysis to the present case. We decline to overlook
the deficiency in the plea colloquy here as an insubstantial defect because the
court did not misstate a minor detail, but instead it failed in its duty to explain how
it is required to determine whether to terminate D.H.’s rights. See also WIS. STAT.
§ 48.426 (“The best interests of the child shall be the prevailing factor considered
by the court in determining the disposition”); State v. H.C., 2025 WI 20, 416
Wis. 2d 233, 21 N.W.3d 330 (“[Section] 48.426(2) requires the circuit court to
decide, in its discretion, whether termination of parental rights is in the best
interests of the child, without imposing a burden of proof on any party.”).

¶20 We therefore analyze D.H.’s request to withdraw his no contest plea
under the framework of Bangert.

II. Whether D.H. Has Made a Prima Facie Case for Plea Withdrawal

¶21 In his postdisposition motion, D.H. pointed to the circuit court’s
statement during the plea colloquy regarding the burden of proof at disposition
being “you can force the petitioner to prove to a reasonable certainty that adoption
serves the best interest of your child[.]” D.H. argued that, because the court had

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No. 2025AP2668

previously explained the standard of “a reasonable certainty” to be “not beyond a
reasonable doubt” but “not just a preponderance of the evidence,” he understood
the court to mean that the State had a burden of proof that it would have to meet at
disposition, and that if the State failed to meet that burden of proof, his parental
rights would not be terminated.

¶22 “While a plea’s validity is based on the parent’s understanding at the
time the plea was entered, events before and after the plea can inform a court’s
analysis.” A.G., 408 Wis. 2d 413, ¶20. We are not persuaded that the circuit
court’s passing references to the dispositional phase as the “best interest” phase
was enough to provide any meaningful information to understand that the burdens
of proof at the grounds phase and at disposition are governed by different
standards. The circuit court never explicitly told D.H. that there was no burden of
proof at the dispositional phase, and, when combined with the circuit court’s use
of the term “reasonable certainty,” D.H.’s allegations in his postdisposition motion
present a prima facie case that his plea was not knowing, intelligent, and
voluntary. Without a clear explanation, it would certainly be possible that D.H.
would understand that the State would be held to a higher burden of proof at
disposition than in reality. We therefore agree with the circuit court on this issue,
and conclude that this satisfied D.H.’s burden to demonstrate a prima facie case
for plea withdrawal.

III. Whether the State Demonstrated By Clear and Convincing Evidence
that D.H.’s Plea was Knowing, Intelligent, and Voluntary

¶23 Because we conclude that D.H. made a prima facie case for plea
withdrawal, we next turn to the issue of whether the State demonstrated by clear
and convincing evidence that D.H.’s plea was entered knowingly, intelligently,
and voluntarily, in spite of the circuit court’s defective plea colloquy. On that

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No. 2025AP2668

issue, we agree with D.H. and conclude that the postdisposition court was correct
when it held that the State had failed to meet its burden of proof.

¶24 D.H. testified that, when the circuit court conducted its plea
colloquy, he did not understand the court to mean that there was a burden of proof
at disposition. He stated that he was familiar with the concept of a burden of proof
from his experience with criminal cases. The court engaged D.H. in a thorough
colloquy, in which D.H. stated that he had read the petition, had discussed it with
counsel, and that counsel had answered his questions. D.H. was permitted to ask
questions during the colloquy if he did not understand what was happening, and he
did not do so. The State also provided testimony from trial counsel in which
counsel stated that he had sent multiple letters to D.H. outlining the TPR process,
which highlighted the distinct grounds phase and dispositional phase of the
proceedings. Counsel also stated that he intentionally did not discuss burden of
proof at disposition with D.H. in order to avoid any confusion, instead stressing
that the best interests of the child would be the prevailing factor. D.H. also
acknowledged that counsel never told him there was a burden of proof at
disposition.

¶25 However, we agree with the postdisposition court’s reasoning, in
which it stated that “the evidence before us indicates that [D.H.] was told by [the
circuit court] that the State did have a burden of proof and that is the only
information that [D.H.] was given about burden of proof.” The circuit court’s
statement that D.H. could force the State “to prove to a reasonable certainty that
adoption serves the best interest of [the] child, and if they don’t, then the petition
has to be dismissed,” clearly indicated that the State would have a burden of proof
at disposition. Notions of due process require that a parent be provided with
enough information to evaluate the stakes involved and to understand the direct

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No. 2025AP2668

consequences of their plea, Brenda B., 331 Wis. 2d 310, ¶41, and the evidence
clearly demonstrates that D.H. was uncertain about the burden of proof that would
be required at disposition. The State therefore failed to satisfy its burden of
proving by clear and convincing evidence that D.H.’s plea was knowingly,
intelligently, and voluntarily entered into in spite of the circuit court’s defective
plea colloquy.

CONCLUSION

¶26 For the foregoing reasons, we conclude that the postdisposition court
correctly held that D.H. made a prima facie case for plea withdrawal and that the
State failed to prove by clear and convincing evidence that D.H.’s no-contest plea
was nevertheless knowing, intelligent, and voluntary. For those reasons, we
affirm the order of the postdisposition court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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