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2014 Case Law Update District One Decisions. State v. Rickey V. 14 AP 334 (7/8/14) Facts: Rickey fails to appear for fact finding hearing on 7/1/2013,

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Presentation on theme: "2014 Case Law Update District One Decisions. State v. Rickey V. 14 AP 334 (7/8/14) Facts: Rickey fails to appear for fact finding hearing on 7/1/2013,"— Presentation transcript:

1 2014 Case Law Update District One Decisions

2 State v. Rickey V. 14 AP 334 (7/8/14) Facts: Rickey fails to appear for fact finding hearing on 7/1/2013, but he had called court staff and requested to appear by phone Court tries to call the number he left and no one answers, so Court adjourns to 8/6/13 On 8/6/13, Rickey again fails to appear and court leave a VM at the number that the case manager had for him. Court then takes evidence as to grounds in accordance to Evelyn C.R. case. Court indicates on the record that it would be willing to revisit the default if Rickey appears in person. The Court terminates Rickey’s rights to Liliana. Rickey appeals and requests that the Appellate Court vacate the default. Appellate court grants the request and directs the circuit court hold an determine if there is good cause to reopen the default. Rickey testifies that he knew he had to appear on 8/6/13, but then later testifies that he didn’t know. He also testifies that he didn’t have transportation as he didn’t have bus money and that his ride had an emergency and couldn’t pick him up. He testified that he came to the courthouse at 3 p.m. that day, blaming the mix up on his former lawyer. Finally, he said that he saw the number come up on caller ID but didn’t answer it because he didn’t recognize the number. Court finds that Rickey’s testimony was confusing and contradictory and finds no “excusable neglect, or anything else, that would justify me lifting that default judgment.” Court did not use the word “egregious” in its findings. The court concluded that Rickey’s conduct prevented the case “unable to proceed.”

3 Issue: Whether there is an abuse of discretion by the trial court when it found that there was no basis for reopening the default judgment? Finding: The Court found there was ample evidence on the record to support the findings and that the Court correctly applied the law. Other interesting points to consider in this case: 1.This case relies upon the finding of Mable K. that states if the parents “failure to follow court orders, though unintentional is ’so extreme, substantial and persistent’ that the conduct may be considered egregious.” Dane County v. Mable K., 2013 WI 28 ¶70, 346 Wis.2d 396, , 828 N.W.2d 198, The Court found that case law supports that such behavior implicitly states that the conduct is egregious even if the court does not use the “magic word”. 3.The respondent never argues that the court was without the authority to make a default finding nor does the respondent dispute that there was ample evidence to make such a finding.

4 Mareza L. v. Kim M.P. and Peter D.P AP 1382 (04/01/2014) Mareza is the birth mother to Joseph P. and made a plan to give him up for adoption, choosing Kim and Peter as the adoptive parents. After his birth, Mareza did not want to disappoint her mother and yielded to pressure from her mother to keep him. After several months of having Joseph in her care, Mareza informed her mother that she intended on letting the original adoptive parents adopt Joseph. It was reported that her mother became angry and Mareza ended up moved out of her mother’s home. Mareza files a petition to terminate her rights to Joseph. At the voluntary hearing, Mareza’s mother and her mother’s attorney appeared but were asked fto leave the courtroom. Extensive record made of the voluntary TPR hearing that included questions of her understanding that she would only have 30 days to have the TPR reopened, that the TPR would sever her and her family’s rights to raise Joseph. She also declined the option of putting him in foster care in order to have more time to think about the decision. The Court found that Mareza was knowing and voluntarily consenting to a termination of her parental rights to Joseph. One year later, the same attorney who represented Mareza’s mother file an appeal on behalf of Mareza requesting that the court reopen the voluntary TPR after the adoption has already taken place.

5 Issues raised by Mareza on motion to reopen with circuit court: The plea was a result of mistake and excusable neglect under §806.07(1)(a), There are extraordinary circumstances that entitle her to relief under §806.07(1)(h) Wis. Stats. Section (1)(a) states: 48.46(2) is unconstitutional as applied to Mareza’s case. Mareza indicated that the reason for her request was that the father to Joseph, Joshua T. threatened her that he would contact immigration to have Mareza and her family deported and that the Adoption agency was also aware of her illegal status. Mareza says that it was excusable neglect on her part not to mention the threats and that the adoption agency knew of her status and should have informed the court. The Court denies her request to reopen finding that Section 48.46(2) was not followed as she waiting until after the 30 day window to file the motion. Court found that based upon the entire record that there was not a reason to reopen the TPR. Mareza appeals.

6 Issues on appeal: 1. Was §48.46(2) inapplicable as Mareza did not willfully consent to the termination and therefore violated her due process rights? 2.Is §48.46(2) Wis. Stats. unconsitutional as applied to Mareza’s case? 3.Did the court erroneously exercise discretion in denying her request for relief under (1)(a)? 4.Is Mareza entitled to relief under (1)(h) Holding: The Court upheld the TPR.

7 Basis for the Holding: (Mareza L.) Standard of review: weight is given to the trial court decision though it is not controlling T.MF. v. Children’s Service Society of Wis. Issue 1: Section 48.46(2) was properly applied by the trial court. The statute requires that the 30 day deadline is mandatory for any motion to reopen, except where a motion to appeal is filed. To allow her request to be granted would ignore the purpose of the statute. Issue 2: The Court of appeals found that all of her arguments focus on a lack of voluntariness that she now asserts in contradiction of her sworn testimony, and found that the records actually shows the opposite of a lack of sophistication on her part and that she testified that the threats were actually pressure to keep Joseph. The appellate court found that the circuit court record reflected the requirements of a sufficient plea colloquy. Jodie W. Issue 3: The court even stated: “Mareza L.’s compresension of the proceedings and her thoughtful answers do not relect an iota of evidence of an involuntary or unknowing decision.” ¶21 She is not entitled to relief under (1)(h) and it is not a ground under 48.46(2). “It is presumed that the legislature is cognizant of what language to include or omit when it enacts laws.” Town of Sheboygan v. City of Sheboygan, 2001 WI App. 279 ¶ 9

8 In the interest of Taron P., Jaden P. and Travis P AP 361, 362 and 363 Adoptive father, Eugene P. was charged criminally with child abuse to the children ages 8, 9 and 10 t th Four days after he was charged, a CHIPS petiton was filed on hehalf of the children. Grounds alleged were (3),(3m), (8) and (10) (the incarcerations grounds were later dismissed) In March 2013, Eugene is acquitted of the physical abuse charges in a jury trial In April 2013, there is a jury trial for the CHIPS cases A number of witnesses testified including, a pediatric ER doctor, a psychologist, a pediatric hemotologist, the three children, a social worker and Eugene himself. The State also called Dr. Lynn Sheets, Eugene objected to her in a motion in limine

9 Eugene’s basis for objecting to Dr. Sheets’ testimony: A motion in limine was filed requesting that she be prohibited from testifying. He argued: – Her testimony was not necessary as he has already admitted to striking the children – He stated her conclusions were legal not medical – They were “faulty because she didn’t examine these children” At trial, Eugene didn’t completely object and indicated that she would need to testify consistently with her testimony at the criminal trial. Trial court allowed testimony with the following caveats: – She could not testify that the children were in fact abused – Could testify however, that her opinion was that the injuries were consistent with child abuse. Jury finds grounds for CHIPS -- Eugene appeals.

10 Eugene now argues: 1.The court erred by admitting Dr. Sheets testimony 2.That the testimony was unfairly prejudicial 3.She testified beyond the scope of trial court’s ruling 4.Any error was not harmless Standard of Review: Court used the erroneous exercise of discretion standard and the harmless error analysis here to review the trial court’s decision. The court also indicated: “We consider an error harmless when no reasonable probability exists that the error contributed to the jury’s verdict.” State v. Dyess, 124 Wis.2d 525, (1985) Court will examine the entire record to see if it provides a factual basis for the jury’s finding even if the decision to allow Dr. Sheets to testify was an error. ¶19 Basis for appeal and the Standard of Review

11 Trial court decision affirmed Findings: “Dr. Sheets’ testimony was merely an echo of a message that the jury had by that point already heard many times before by numerous experience, well- credentialed sources.” “The evidence that Eugene P. abused Jaden and Taron, and that all three boys were at risk for being abused, was overwhelming and compelling even without Dr. Sheets’ testimony.” The court indicated that the admission did not undermine the court’s confidence in the outcome and the error was harmless.

12 In re the interest of Londyn F., State v. Jimmy J. Decision issued August 5, 2014 (2014 AP 573) FACTS: Londyn F. is born at the end of November 2010 Petition to terminate Jimmy J’s right filed under failure to assume parental responsibility and abandonments for failure to communicate or visit for 3 months or longer Jimmy J. requests a jury trial At the trial, 10 of the 12 jurors find grounds pursuant to (6) As to the failure to communicate for 3 months or longer, two jurors, Donna and Lynn answered no to questions 2 and 3, and answered yes to question 4. Jimmy J. appeals.

13 Issue on the appeal 180FIVE ‑ SIXTHS VERDICT Agreement by ten (five) or more jurors is sufficient to become your verdict. Jurors have a duty to consult with one another and deliberate for the purpose of reaching agreement. If you can do so consistently with your duty as a juror, at least the same ten (five) jurors should agree in all the answers. I ask you to be unanimous if you can. At the bottom of the verdict, you will find a place provided where dissenting jurors, if there be any, will sign their names and state the answer or answers (the number of the verdict question(s)) with which they do not agree. Either the blank lines or the space below them may be used for that purpose. Copyright 2011, Regents, Univ. of Wis. What the court said: “Agreement by ten or more jurors is sufficient to become your verdicts. Jurors have the duty of consult with one another and deliberate for the purpose of reaching an agreement. If you can do so consistently with your duty as a juror at –at least the same ten jurors should agree on all of the answers. I ask you to be unanimous if you can.” (emphasis added) Jimmy appeals and requests a post trial hearing. At the post trial hearing, his attorney indicated that he made a strategic decision to not voice an objection, feeling that it would be more difficult for the same 10 to agree on both grounds rather than allow any 10 to agree on each ground.

14 Appellate Court Decision- Jimmy J. Court of appeals indicated that it would review the decision as an ineffective assistance of counsel claim as found that the issue was forfeited by his failure to object. State v. Carprue, 2004 WI 111 The Court analyzed the claimed error to determine if his attorney’s error was constitutionally deficient under Strickland. Jimmy would have to show: 1. deficient representation and 2. Prejudice. The Court examined the attorney’s decision making and found that it was not deficient and did not need to examine the 2 nd prong for prejudice. “Strategic decision by a lawyer are virtually invulnerable to second-guessing.” State v. Elm, 201 Wis.2d 452, , 549 N.W.2d 471,476 (Ct. App. 1996) TPR upheld.

15 In re the TPR of Sieanna J. and Skye J. and Shawnise J., State v. Samantha J AP 988, 989 and 1017 (decided on Sept. 16, 2014) FACTS: TPR petitions were filed on 2/4/2013 on all three children of Samantha, alleging both continuing CHIPS and failure to assume parental responsibility. Samantha served with the petition and summons for 3/4/2013, with the order that a failure to appear could result in a default finding. 3/4/13 Samantha’s attorney appears but she does not. Case manager had informed Samantha of the court date one week prior on the phone. State moves for default. Court takes it under advisement. Court adjourns the hearing. 3/28/2013, Samantha appears with her attorney and explains the TPR process. The court ordered her to appear for a PPRH on 4/11/ Samantha and her attorney do not appear on that date. State again asked for a default. Court denied the request and set the matter for 5/2/13. 5/2/2013, Samantha appears with new counsel. Court sets two new dates and orders Samantha to appear. 6/18/13 Samantha’s lawyer appears and she did not. State requests default as this was Samantha’s 3 rd missed court appearance and she missed the deposition the day before. The court grants, indicated that she could still participate in the dispositional hearing. A motion to vacate the default was denied. 11/28/13, the court held a hearing and the State presented evidence on Samantha’s history and the court found clear and convincing evidence that prove the elements of both grounds. At a contested disposition, the court found it was in the children’s best interests to terminate Samantha’s rights. The foster parents indicated that they were willing to adopt Skye and wanted to see the other two girls behaviors stabilize. Samantha appeals.

16 Samantha’s argument: The court erroneously exercised its discretion by finding her in default and also by terminating her rights. TPR upheld Court’s standard of review: The trial court decision will be upheld unless clearly erroneous. Default finding for failure to appear and failure to comply with discovery orders: 1.Court reiterated that a default is allowed in TPR cases. Door County v. Scott S., 230 Wis. 2d 460, 465 (Ct. App. 1999) 2.The circuit court’s findings of default will be upheld if it is supported by the record and the proper standard of law is applied. The acts need to be found to be “egregious or in bad faith.” Industrial Roofing Services v. Marquardt, 207 WI 19, ¶¶ Failure to obey a discovery order without justifiable excuse is egregious. Garfoot v. Fireman’s Fund Ins. Co., 228 Wis.2d 707, 719

17 Court’s findings: 1.Default: Court found that because the State presented evidence, and Samantha was allowed to present evidence at the dispositional hearing, that the default was appropriate. It was only after she was allowed to present evidence and that there was a prima facie case established that the court actually made the default ruling. 2.Denial of motion to vacate: The court also found that Samantha’s motion to vacate the default was properly denied. She only gave an excuse for her 3 rd missed court hearing and not the first two, and then gave no excuse as to why she failed to comply with the discovery order and appear for the deposition. “The circuit court was within its discretion to find Samantha in default without making a finding of excusable neglect, because the facts support the implicit conclusion that the explanation was inadequate to establish excusable neglect.” ¶21 3. Erroneous exercise of discretion in granting TPR as being in the children’s best interests: Samantha tried to argue that the court was making the children legal orphans by granting the TPR and gave undue weight to the testimony of one witness. The Appellate Court found that the trial court carefully weighed all the factors of §48.426(3) and that the decision was one that a reasonable judge could reach.


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