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COA approves probation condition prohibiting defendant from serving as a guardian

State v. Kimberly L. Howell, 2021AP1865-CR, 6/8/22, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Howell served as guardian for five children, four of whom were her grandkids. The fifth, 11 year old S.G., has special needs.  Howell pled no contest to child neglect and domestic abuse due to her mistreatment of S.G. The circuit court gave her two years of probation during which she could not serve as a guardian for any child, including her grandson, J.R., who has autism. On appeal, Howell argued that this condition of probation was (1) overly broad and unconstitutional and (2) unreasonable and inappropriate.

The court of appeals gave four reasons for rejecting Howell’s contention that the “no-guardianship” condition was unconstitutional. (1) Howell cited no authority for the proposition that the 14th Amendment protects her status as a court-appointed guardian. Opinion, ¶¶29-30.

(2) Howell was not entitled to notice of this potential probation condition, which was not mentioned in her plea agreement. The court was not bound by the parties’ plea agreement, and Howell said she understood this fact at her plea hearing. Opinion, ¶31 (citing State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377 (1990)).

(3) While a defendant is entitled to notice of a maximum sentence or penalty enhancer, she is not statutorily entitled to notice of probation terms or conditions. Opinion, ¶31

(4) Probation conditions may infringe constitutional rights as long as they are not overly broad, and they are reasonably related to the defendant’s rehabilitation. Opinion, ¶33 (citing State v. Rowan, 2012 WI 60, ¶¶4, 10, 341 Wis. 2d 281, 814 N.W.2d 854). The “no guardianship” condition was not overbroad for Howell because because she had engaged in a year-long course of “shocking” abuse of S.G. It included instructing the other children to slap, hit and punch S.G. Howell failed to consider how her conduct affected the other children in her care. She admitted to having many problems herself. The “no guardianship” condition gave her time and space to attend court-ordered parenting classes and tend to her own physical and mental health needs. Opinion, ¶¶34-37.

Howell also claimed that the “no guardianship” condition was unreasonable and an erroneous exercise of discretion. It precluded her from opposing the county’s efforts to terminate her guardianship of J.R. (her grandson with autism) who was the subject of a CHIPS proceeding. He was not abused or in her custody at the time of sentencing in this case.

That argument failed due to Howell’s need for rehabilitation (see above) and the need to protect other children from the risk of similar treatment at Howell’s hands. Opinion, ¶¶39-40.  Here’s a summary of that treatment:

¶34 . . . Among other things, Howell: (1) instructed the other children under her care to slap, hit, and punch S.G.; (2) punished S.G. by forcing her to stand up for extended periods of time to the point where her legs were about to give out, (3) deprived S.G. of food other than rice, often leaving her hungry; and (4) deprived her of a bed and forced her to wear soiled clothing.

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