¶ 58. (dissenting). The termination of parental rights based on Wis. Stat. § 48.415(2) (2003-04)1 is part of a narrowly tailored step-by-step statutory process. The statutory process ensures an individualized determination of a parent's fitness. A parent's valid plea of no contest does not negate the individualized determination.
¶ 59. In this case, the step-by-step process provided Jodie an individualized determination of her fitness as a parent. The majority concluded otherwise, and now children of incarcerated parents will be serving a concurrent sentence in limbo. Accordingly, I respectfully dissent.
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¶ 60. Jodie entered a plea of no contest during the grounds step of the termination procedure. The majority deemed this plea invalid. I disagree.
¶ 61. A valid no contest plea must be entered knowingly, voluntarily, and intelligently. Waukesha County v. Steven H., 2000 WI 28, ¶ 42, 233 Wis. 2d 344, *564607 N.W.2d 607. A plea is knowingly, voluntarily, and intelligently entered when a court determines, based on the totality of the circumstances, that the defendant was aware of his or her constitutional rights. State v. Bangert, 131 Wis. 2d 246, 254, 389 N.W.2d 12 (1986).
¶ 62. The record reveals that Jodie knowingly, voluntarily, and intelligently entered her plea. First, she signed a form that she and her attorney tailored to represent her understanding of the plea. Jodie initialed next to line 14 of the form, which stated, "I understand that, if the court accepts the [] no contest plea of all parties, the court will find me to be an unfit parent."2
¶ 63. Jodie also initialed next to line 15 of the form, which stated, "I understand that, if the court accepts the [] no contest plea of all parties, my parental rights to the above-named child could be terminated pursuant to Section 48._, Stats., and the court can enter a dispositional order after holding a dispositional hearing. §§ 48.427 Stats.) Still contesting disposition." (Emphasis for Jodie's additions to the form.)3 Jodie tailored the form so it clarified her understanding that her no contest plea related to the grounds phase only, not the dispositional phase.
¶ 64. In addition to Jodie tailoring the form to reflect her understanding of her plea, the court extensively discussed the plea form with her during the subsequent colloquy. The following excerpt illustrates that the court thoroughly examined Jodie's understanding of her plea:
*565The court: You're giving up your opportunity to present evidence on your own behalf and to make witnesses come to court and testify for you even if they didn't want to come to court?
[Jodie]: Yes.
The court: Do you understand you're giving up your opportunity to make the state prove each element of the statute contained within this petition to establish grounds?
[Jodie]: Yes.
The court: You are giving up your chance to require the state to prove allegations of the petition by evidence that is clear, satisfactory and convincing, and that 10 of the 12 jurors would have to agree on that verdict before it could be accepted?
[Jodie]: Yes.
The court: Do you understand by entering this plea that grounds will be determined to have been met by the state, that they'll have proved by clear, satisfactory and convincing evidence that grounds exist to terminate your parental rights?
[Jodie]: Yes.
The court: And you understand that as a result of that we'll move to phase two of the termination of parental rights?
[Jodie]: Yes.
The court: As a result of that, you understand that if termination of parental rights is granted it could end your relationship between yourself and Max?
[Jodie]: Yes.
*566The court also asked, "Do you understand that upon the receipt of finishing this petition or this plea the Court is going to find you to be an unfit parent? Do you understand that?" Jodie replied, "Yes."
¶ 65. The tailored plea form, coupled with the colloquy, make clear that Jodie possessed the requisite awareness to enter her plea knowingly, voluntarily, and intelligently.
¶ 66. Notwithstanding this evidence in the record, the majority concludes that Jodie did not enter a valid no contest plea. Majority op., ¶ 38. The majority finds the plea defective because of perceived inconsistencies in the form, an inadequate colloquy, and a refusal by the court to take testimony. Id. A consideration of these supposed defects in Jodie's plea reveals that they are unpersuasive.
¶ 67. Finding the supposed defects in Jodie's plea requires the majority to launch into second-guessing that is beyond the scope of our Bangert analysis. Bangert analysis does not ask whether or not the individual has made the best strategic decision at that point of the proceeding. See Bangert, 131 Wis. 2d at 254. Yet, the majority's analysis seems to revolve around the feeling that termination of parental rights is a "foregone conclusion" after the grounds stage. Majority op., ¶ 36. An examination of our case law and Wis. Stat. § 48.427 reveals otherwise.
¶ 68. In Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶ 24, 255 Wis. 2d 170, 648 N.W.2d 402, this court laid out the nuances of the two-step procedure for contested termination proceedings. The first step determines whether grounds exist to terminate parental rights. Wis. Stat. § 48.424(1). During the first step, the parent's rights are paramount. Id. The second step is *567the disposition. Wis. Stat. § 48.427. During the second step, the best interests of the child are the polestar. Julie A.B., 255 Wis. 2d 170, ¶ 37.
¶ 69. Based solely on the prevailing factors for the respective steps, parents seemingly have the best chance of prevailing at the grounds stage. In this context, the majority draws the conclusion that Jodie must have not understood her rights. Majority op., ¶ 37. The majority goes so far as to state, "the court failed to address Jodie's modifications to the questionnaire that demonstrated Jodie's belief that termination of her parental rights was not a foregone conclusion due to her no contest plea." Majority op., ¶ 36 (emphasis added). The majority presumes that termination is a foregone conclusion. The majority views it as a defect that the court did not take testimony and explore the wisdom of Jodie's strategy. Id.
¶ 70. This might be persuasive if the legislature had made the policy decision to require termination of parental rights upon the finding of grounds to terminate. However, it did not. The legislature created an additional step where the court "may enter an order terminating the parental rights of one or both parents." Wis. Stat. 48.427(3) (emphasis added). Although the child's best interest becomes the polestar of the disposition step, termination of parental rights is not a "forgone conclusion."
¶ 71. The majority's discovery of the "defects" opens the door to the creation of a new rule: a parent's otherwise valid plea of no contest at the grounds step will be deemed invalid if he or she challenges the disposition. Although the majority may view this to be the only advisable approach to the two-step termination procedure, it warps this court's longstanding Bangert analysis to reach its desired result.
*568¶ 72. A valid plea of no contest waives an individuals right to challenge the constitutionality of a statute. Dane County DHS v. P.P., 2005 WI 32, ¶ 25, 279 Wis. 2d 169, 694 N.W.2d 344. Therefore, the majority's conclusion that Jodie failed to enter a valid no contest plea also opens the door to its launching into substantive due process analysis.
II
¶ 73. Jodie did not have her parental rights terminated because of her status as an inmate. She had her parental rights terminated because of the step-by-step statutory process that underlies Wis. Stat. § 48.415(2). Jodie failed to maintain a residence, financially support Max, complete alcohol and drug treatment, demonstrate appropriate parenting skill, or complete counseling. Contrary to the majority's conclusion, Jodie did not have her substantive due process rights violated.
¶ 74. In P.P., this court found that "the statutory step-by-step process that underlies § 48.415(4) is sufficient to show that subsection (4) is narrowly tailored to advance the State's compelling interest of protecting children against unfit parents[.]" Id., ¶ 26. A similar step-by-step statutory process underlies § 48.415(2). See Julie A.B., 255 Wis. 2d 170, ¶ 23. Accordingly, the full statutory scheme should be analyzed in this case.
¶ 75. Jodie's individualized determination of unfitness began when Kenosha County filed a CHIPS petition. Jodie was given notice of the petition. A hearing was held within 30 days. Jodie had the right to a jury trial at the fact-finding hearing. The circuit court found jurisdiction over Max, pursuant to Wis. Stat. § 48.13(8). The matter proceeded to a dispositional *569hearing. At the dispositional hearing, the court made findings to maintain and protect the well-being of the child that were the least restrictive to the parent and the child. Jodie never contested any of these proceedings.
¶ 76. After the court entered the CHIPS order, the state filed the TPR petition nearly 17 months after the disposition hearing. On the grounds phase, Jodie pled no contest. If she had not entered a plea of no contest, a fact-finding hearing would have occurred. She would have been entitled to a further individualized determination related to her fitness as a parent. The state would have had the burden of proving that reasonable efforts had been made to provide the services ordered by the court. Wis. Stat. § 48.415(2)(a)2.b. Satisfying the reasonable efforts element would have required the state to prove that the services ordered by the court took into consideration the characteristics of the parent and the child. Wis. Stat. § 48.415(2)(a)2.a. The grounds stage presented Jodie with the opportunity to challenge the conditions imposed for the safe return of Max. However, Jodie pled no contest.
¶ 77. After Jodie pled no contest, the court held a dispositional hearing, at which time the court considered the factors pursuant to Wis. Stat. § 48.426(3). The factors include, but are not limited to, the likelihood the child will be adopted, the child's age and health, the relationship between the parent and the child, the child's wishes, the duration of the child's separation from the parent, and whether a more stable family relationship will result from the termination.
¶ 78. Regardless of the step-by-step statutory process that underlies § 48.415(2), the majority concludes that "the circuit court improperly deemed Jodie unfit solely by virtue of her status as an incarcerated person *570without regard for her actual parenting activities or the condition of her child." Majority op., ¶ 55 (emphasis added). Rather than recognizing that Jodie's no contest plea affected the process for deeming Jodie unfit, the majority uses this set of circumstances to conclude that the conditions imposed on Jodie and the circuit court's evaluation during the grounds stage violated Jodie's substantive due process rights.
¶ 79. However, the state did not act arbitrarily, wrongly, or oppressively. "[T]he court did not consider other relevant facts and circumstances particular to Jodie until the dispositional phase," majority op., ¶ 52, because the court had concluded a valid no contest plea had been entered.
¶ 80. The inconsistency between the majority's conclusion that Jodie had her parental rights terminated "solely by virtue of her status as an incarcerated person" and the reality of this case has a simple explanation: In the face of this court's case law and the statutes, the majority looked to a Nevada Supreme Court case, J.L.N. v. Nevada, 55 P.3d 955 (2002).
¶ 81. In J.L.N., the Nevada Supreme Court applied a statute unlike Wisconsin's. An examination of the underlying Nevada statutes related to the termination of parental rights exposes that Nevada's legislature made very different policy judgments than Wisconsin's legislature. In Nevada, "[t]he primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination." Nev. Rev. Stat. § 128.105 (2004). There is not a two-step termination procedure. There is not a step where the parent's rights are paramount.
¶ 82. Conversely, in Wisconsin, the rights of the parent are paramount during the grounds step of the termination proceeding. Julie A.B., 255 Wis. 2d 170, *571¶ 24. Based on P.P., 279 Wis. 2d 169, ¶ 26 and Julie A.B., 255 Wis. 2d 170, ¶ 23, the Wisconsin Legislature crafted a statutory step-by-step process so that it provides an individualized determination of unfitness.
¶ 83. The Wisconsin Legislature also expressly granted courts the necessary exclusive jurisdiction over children alleged to be in need of protection or services as a result of their parent being incarcerated. Wis. Stat. § 48.13(8). Rather than creating a safe harbor for incarcerated parents, as the majority attempts to do in this case, the legislature ensured that a child receiving inadequate care as a result of incarceration was grounds for the statutory step-by-step process to proceed.
¶ 84. Nevertheless, the majority cavalierly finds that the statutory process inadequately provided Jodie an individualized determination. Not only must courts now seemingly advise a parent that pleading no contest at the grounds step is inadvisable, but court-ordered conditions must be more tailored for incarcerated parents. The majority fails to share its vision of how exactly the state is going to be able to come up with such conditions, and also protect the interests of a child.
¶ 85. The majority creates a special class of children who will be left to linger while their parents serve time for their volitional acts. In its effort to protect incarcerated parents, the majority inadvertently imposes on the children of incarcerated parents a sentence in limbo. This contradicts the stated purpose of the Children's Code, which "recognize[s] the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family." Wis. Stat. § 48.01(a).
*572¶ 86. The majority also fails to share how its new scheme will work when the incarcerated parent has been sentenced to a longer term than Jodie's. Will a two-year-old whose parent has been sentenced to 14 years need to wait until she is 16 to get a stable family relationship? What happens when a parent will be incarcerated for longer than the remainder of his or her child's adolescence? The majority opinion leaves these questions unanswered.
¶ 87. I cannot support such a distortion of the step-by-step process underlying Wis. Stat. § 48.415(2), especially when it leads to this setback in the care the state provides children neglected by their incarcerated parents. The distortion is all the more perplexing given that Jodie waived her constitutional challenge upon the entry of her valid no contest plea.
¶ 88. For the foregoing reasons, I respectfully dissent.
¶ 89. I am authorized to state that Justice DAVID T. PROSSER joins this opinion.All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
Jodie redacted the word "admission" between the phrases "the court accepts the" and "no contest plea."
Again, Jodie redacted the word "admission" between the phrases "the court accepts the" and "no contest plea."