State v. A.C.S, 2024AP1634, 9/10/25, District II (one-judge decison; ineligible for publication); case activity
The COA reversed the circuit court’s dispositional order entered after a jury found “Anna’s” child was in need of protection or services (CHIPS) and ordered a new trial because the court excluded evidence that Anna executed a power of attorney to guarantee the child’s care while she was in custody.
Anna pled no contest to causing the death of her fifth child through neglect. Her sentence was withheld, and she was placed on probation for 10 years. A condition of her probation prohibited her from caring for any children without approval by the Department of Corrections or the Kenosha County Department of Children and Family Services (DCFS). (¶ 2).
In 2023, Anna gave birth to “Francis,” her ninth child. Three months later, a Kenosha County probation agent issued a probation warrant for Anna’s arrest alleging she failed to communicate with her probation officer and that the agent was unaware of Anna’s and Francis’s whereabouts. When Anna learned about the warrant, she signed a document entitled “Power of Attorney Delegating Parental Power” to her friend “Rachel.” Rachel lived with her romantic partner “Beth,” who was Anna’s attorney in CHIPS and TPR proceedings related to Anna’s other children. Two days after Anna executed the power of attorney, she was arrested. (¶ 5).
After Anna was arrested, a Kenosha County DCFS agent visited Rachel and Beth’s residence to determine if Francis was in a safe environment. The agent concluded the home was adequate, Rachel and Beth appeared bonded with Francis, and there were no identifiable threats to his safety. DCFS therefore did not detain Francis, and he remained in Rachel and Beth’s custody. (¶ 6).
Shortly thereafter, however, a Kenosha County circuit judge determined that the power of attorney agreement between Anna and Rachel was invalid because Beth represented Anna in other legal proceedings and the agreement constituted a conflict of interest. The judge then placed Francis in emergency custody pursuant to Wis. Stat. § 48.10 (providing power to judge to act as intake worker). A court commissioner found that the circuit court had jurisdiction over Francis and placed him in a foster home. (¶¶ 7-8).
Kenosha County filed a CHIPS petition, which alleged the circuit court had jurisdiction over Francis due to inadequate care during parental unavailability, neglect, and risk of neglect. The circuit court upheld the court commissioner’s temporary physical custody order, and the case proceeded to trial. (¶¶ 9-11).
At trial, Anna’s counsel cross-examined the Kenosha County DCFS agent who investigated Francis’s placement with Rachel and Beth and attempted to ask him whether he would have removed Francis from Rachel and Beth’s home if there had been no legal power of attorney delegating parental authority to Rachel. Before the agent answered, the circuit court instructed the jury that any power of attorney authorized by Anna was unlawful. The court advised counsel for Anna that if she suggested the power of attorney was valid, the court would interrupt counsel and advise the jury that it was invalid and unenforceable. (¶ 12).
Later in the trial, Anna called Beth as a witness and asked whether she was aware of any safety concerns at her home when Francis was detained. The circuit court interrupted and told the jury that, because a condition of Anna’s probation prevented her from caring for any child, she was “legally deprived” of her right to delegate parental responsibility to others. The court therefore precluded Anna from questioning Beth regarding the care she provided to Francis. (¶ 13).
The jury found that Francis had been at risk of neglect but divided over whether Anna actually neglected Francis. The jury did not find that Francis did not receive adequate care during Anna’s unavailability. (¶ 14).
The COA agreed with Anna’s argument on appeal that the circuit court erred when it concluded she did not have legal authority to granting Rachel power of attorney to care for Francis and that the error biased the jury against her.
First, the Court found that the power of attorney was not invalid due to Beth representing Anna. The Court noted that only Rachel was authorized to assume parental care for Francis. And although Rachel and Beth were in a romantic relationship, the Court was “unaware of any legal authority stating that a power of attorney is invalid because the delegate named therein is in a romantic relationship with the delegating party’s attorney in other matters.” (¶ 21). But even if Beth’s involvement rose to an ethical violation, “there is no support for the conclusion that the ensuing remedy is the invalidation of a legal document to which the attorney who violated the rules is not a named party.” (¶ 22). Moreover, Anna did not have an opportunity to challenge the court’s conclusion that the power of attorney was invalid. (¶ 22).
Second, the Court determined the circuit court erred when it found that the condition of probation imposed in her criminal case preventing her from caring for a child legally altered her status as to Francis. (¶ 26). The Court explained: “while Anna’s condition of probation clearly prevented her from having physical custody of Francis in the absence of approval from DOC and DCFS, the condition did not inherently prohibit her from having legal custody of Francis. To the contrary, absent a court order transferring legal custody of Francis to the State, legal custody resided with Anna and Anna alone despite the probation condition.” (¶ 27). Consequently, Anna had the legal authority to transfer custody to someone else. (¶ 28).
The Court rejected Anna’s argument that the circuit court’s errors regarding her ability to transfer custody undermined its de novo review of the temporary physical custody order. (¶¶ 31-38). However, the Court found that the circuit court’s error in excluding evidence that Anna signed a power of attorney regarding Francis’s care during the time she was incarcerated was not harmless because her primary defense was that Francis was not neglected and was not at risk of neglect because he was living with Rachel and Beth pursuant to the power of attorney. (¶ 41). The Court concluded:
The jury knew that a purported power of attorney document existed – multiple witnesses testified they had been shown the document and the court itself informed the jury of the court’s conclusion that it was legally invalid due to the conditions of Anna’s probation – and preventing the jury from hearing the full scope of the circumstances surrounding its creation prevented the jury from learning potentially important information regarding not only Anna’s actions but also her state of mind as it related to Francis’s care.
(¶ 43).