On Point: 11. Defense Wins

State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser

Adequacy of Counsel Investigation

Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.

¶12  There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.

Monroe County DHS v. Luis R., 2009 WI App 109

Issue: Whether ICWA, 25 U.S.C. § 1912(f), which requires likely serious emotional or physical damage to the child from continued parental custody, applies to placement outside the parental home when the TPR proceeding is initiated.
Holding:

¶18 The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA.

Manitowoc County HSD v. Allen J., 2008 WI App 137

Issue/Holding:

¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied,

Oneida Co. DSS v. Therese S., 2008 WI App 159

Grounds

Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):

¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination.

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31

For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:

¶10      Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

 Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)

Holding:

¶41 We do not accept the State’s position for three reasons.

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

¶57      The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W.

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

Issue/Holding: ¶13 n. 3:

The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768.The circuit court found Shirley E.

Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order

Issue: Whether finding of parental unfitness in a TPR, grounded on a condition for the child’s return that was impossible to meet when imposed (namely that the parent set up a suitable residence within 12 months even though she was incarcerated and would not be released before then), violates substantive due process.

Holding:

¶49      Like the Nevada Supreme Court,

Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order

Issue/Holding: The circuit court must undertake a colloquy with the parent tracking § 48.422(7); the parent must know the rights being waived; and on a challenge to the plea the parent must make a prima facie showing that the colloquy was defective and also allege a lack of understanding of the omitted information, ¶¶25-26,