On Point blog, page 152 of 262
As-applied substantive due process challenge to TPR ground rejected
Dane County DHS v. J.D., 2015AP1800, District 4, 11/19/2015 (one-judge decision; ineligible for publication); case activity
One of the statutory grounds for a finding of unfitness leading to termination of parental rights is the court-ordered denial of placement or visitation for at least one year. Wis. Stat. § 48.415(4). In Dane County DHS v. P. P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, the supreme court rejected a facial challenge to this ground but left open the possibility that, as applied, it might violate substantive due process in a particular case. Per the court of appeals, this is not that case.
Evidence didn’t establish EMT was authorized to do OWI blood draw
State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)
The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).
Child welfare bureau’s failures don’t invalidate TPR based on failure to assume parental responsibility
State v. N.J., 2015AP1477 & 2015AP1478, District 1, 11/12/15 (one-judge decision; ineligible for publication); case activity
The order terminating N.J.’s parental rights based on her failure to assume parental responsibility under § 48.415(6) was not invalidated by any failures by the Milwaukee Child Welfare Bureau to make reasonable efforts to reunite N.J. with her two children.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Record as a whole supplied “competent proof” of prior OWI conviction
State v. Mendell Stokes, 2015AP1335-CR, District 2, 11/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Applying State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), the court of appeals holds the record provided “competent proof” that Stokes was operating after revocation for a prior OWI offense and, thus, was subject to criminal penalties instead of a civil forfeiture, § 343.44(1)(b) and (2)(ar)2.
TPR petition gave parent sufficient notice of grounds for termination
N.A.H. v. J.R.D., 2015AP1726, 2015AP1727, and 2015AP1728, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity (first case number)
The petition to terminate J.R.D.s parental rights set forth sufficient facts to support the allegation that J.R.D. had failed to assume parental responsibility.
Multiple challenges to OWI 1st rejected
State v. Joseph William Netzer, 2015AP213, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity
¶1 …. Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,
When car has multiple owners, the fact that one owner has invalid license doesn’t by itself justify traffic stop
State v. Joshua Allan Vitek, 2015AP421-CR, District 3, 10/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, police may reasonably assume the driver of a car is likely to be the owner, and may stop the car if they know the owner’s operating privileges are invalid. But what if more than one person owns the car, but only one of the owners has an invalid license? The state claims that a traffic stop is still justified by the fact that one of the owners has an invalid license. The court of appeals disagrees, at least when—as in this case—the state presents no evidence as to the number of registered owners and the validity of their operating privileges.
Father’s stipulation to TPR grounds was valid despite later remarks suggesting he didn’t understand the grounds
State v. K.G., 2015AP245, District 1, 10/27/15 (one-judge decision; ineligible for publication); case activity
K.G.’s stipulation to the failure-to-assume-parental-responsibility ground alleged in the TPR petition was valid even though K.G.’s later statements during the disposition hearing suggest he misunderstood what the state would have to prove to establish that ground for termination.
Restitution may be ordered in JIPS cases only after a finding the juvenile committed a delinquent act
State v. B.A.H., 2015AP1256-FT, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity
While restitution is a possible disposition in a proceeding involving a juvenile in need of protection or services (JIPS), it can only be ordered when there has been a finding a finding the juvenile committed a delinquent act. Because there was no such finding in the JIPS case involving B.A.H., the juvenile court had no authority to order restitution.