On Point: 11. Defense Wins

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,

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06 (published)

Issue/Holding1: The same “self-representation competency standards developed in … criminal cases” applies to TPRs, ¶¶9-16.

Standards summarized, ¶¶17-23. Though much of this recitation is fairly abstract, the following embellishment of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980) may be of interest, ¶20 n.

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson

Issue/Holding: Wrongful admission of misconduct evidence was reversible error:

¶37      Based on our review, we are not convinced beyond a reasonable doubt that the admission of Janis’s testimony did not contribute to the verdict. The State’s case was based entirely on various recollections about events that occurred years earlier. [3] The defense disputed many of those recollections and noted the lack of physical evidence of any sort corroborating physical abuse by a large man of a small child.

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶40      In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr.

State v. Lavelle W., 2005 WI App 266

Issue: Whether the right of a parent imprisoned  in the federal system to “meaningfully participate” in a TPR proceeding was violated when he was not physically produced in court but, instead, was limited to telephonic participation.

Holding: Where various mechanisms could have been utilized to produce the father yet weren’t attempted, and the telephone hook-up was, under the circumstances,

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose

Issue/Holding: Confrontation error deemed harmful, where the following evinced the tainted evidence’s impact: prosecutor’s litigation strategy, ¶51; jury’s reaction (which included repeated requests to have tainted testimony read back;

State v. Daniel D. King, 2005 WI App 224
For King: Scott D. Obernberger

Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ¶18.

Result seems unassailable in light of Hammon v.