On Point

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the County Department of Social Services must have made a reasonable effort to provide services ordered by the court. Third, the parent must fail to meet the conditions established in the order for the safe return of the child to the parent’s home. Fourth, there must be a substantial likelihood that the parent will not meet the conditions of safe return of the child within the 12-month period following the conclusion of the termination hearing. [3]

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, but Allen argues that he did not personally agree to withdraw his jury demand on the element. We put this appeal on hold pending the supreme court’s resolution of Walworth County DHHS v. Andrea L.O., 2008 WI 46, __ Wis. 2d __, 749 N.W.2d 168. In that case, the supreme court held that the parties’ stipulation to one element of parental unfitness did not constitute a withdrawal of a jury trial demand because the jury, rather than the court, answered the verdict question and there was ample evidence to support the element. Id., ¶3. The court went on to hold that even if the stipulation had been a withdrawal of the jury trial demand on the element, it was not error for the circuit court not to hold a personal colloquy with the defendant where the defendant personally agreed to the stipulation in open court, the stipulation was to a single, undisputed, paper element, and there was ample uncontroverted evidence to support the stipulated element. Id., ¶4.

¶2 We now reverse and remand for a new trial. We conclude that the stark factual differences between this case and Andrea L.O. call for this result. First, here the court, not the jury, answered the verdict question on the stipulated element, and so, as Manitowoc County rightly concedes, Allen did not receive a jury trial on the issue. Thus, the dispositive question becomes whether it was error for the court to withdraw the element from the jury’s consideration. We conclude that it was because the crucial facts relied on by the Andrea L.O. court are missing here. At no time did Allen agree to the stipulation in open court. Second, though the element in consideration is a “paper” element, the required documentary evidence is missing from the record, and the evidence adduced is not so “ample” as to make the element “undisputed and undisputable.” We therefore also conclude that the court’s error was not harmless.

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. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that “[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition ….” Wis. Stat. § 48.426(2).

¶17      We decline, however, to adopt the expansive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination. …

Potential Disposition

¶8 Regarding the first alleged deficiency, it is undisputed that the circuit court never etablished on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶9 The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis “[b]efore accepting an admission ….” Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶26, 255 Wis. 2d 170, 648 N.W.2d 402.

¶10 We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. …

Donald Calloway v. Montgomery, 512 F. 3d 940, No. 07-1148, 1/14/08

Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA.

Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid,” ¶28.

Is there an expiration date on a prior assertion of counsel? The court of appeals thought not; note, however, the pending Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question (albeit under extreme facts: the assertion was 3 years earlier in that case, while in Coles’ it was about 2 months).

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding:

¶38      The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver. ^[9] However, we are persuaded that placing the burden on the State to show a prior waiver of this right, where the defendant has timely raised the issue, is more consistent with the principles established in existing case law. …

¶39   We emphasize that, in order for the State to have the burden of proof—both the burden of going forward with a prima facie case and the burden of persuasion—that the accused previously waived his or her Fifth Amendment/ Miranda right to counsel, the defendant must timely put the State on notice that he or she is claiming he or she did not waive this right. See Santiago, 206 Wis. 2d at 20-21, 25-26 (State need not in every case present the foreign language Miranda warnings and their translation in order to make a prima facie case of a valid waiver; but it must do so when the defendant puts the State on timely notice—either in the motion to suppress or during the State’s initial presentation of evidence—that he or she is claiming the foreign language warnings were inadequate). Here, Cole’s motion to suppress put the State on timely notice that he was claiming his statement to Officer Riley was inadmissible because he had previously invoked his Fifth Aamendment/ Miranda right to counsel when interviewed by Officer Gonzales on the battery charge.

¶40   Because we conclude the State had the burden of proof—both the burden of producing evidence to establish a prima facie case and the burden of persuasion—that Cole previously waived his Fifth Amendment/ Miranda right to counsel, we agree with Cole that the court erroneously placed the burden on him to prove he had invoked that right.

Remedy for this misallocated burden of proof is remand for correct determination by the circuit court, ¶¶41-44. Note that the court assumes that, so long as the suspect remains in continuous custody, the Edwards rule remains in force, ¶¶26-28. Cole asserted his right to counsel about two months earlier, after arrest on a different offense, and hadn’t been released; the court doesn’t reject (indeed, doesn’t really address) the question of whether the passage of time might vitiate Edwards. That assumption may very well turn out to be correct, but the cautious practitioner will at least want to be aware of, and keep an eye on, Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.

¶35      As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. See Jiles, 262 Wis. 2d 457, ¶26. The State accomplishes this by, first, producing evidence to establish a prima facie case.  See State v. Santiago, 206 Wis. 2d 3, 18-19, 556 N.W.2d 687 (1996). If the evidence does not establish a prima facie case, the State does not meet its burden of persuasion.  See id. at 26; see also Jiles, 262 Wis. 2d 457, ¶46 (defense counsel could have refrained from producing evidence because the State failed to meet its initial burden of production). In other words—at least in the only cases we have found on this point in the Miranda/waiver context—the State’s burden of proof consists of both the burden of the initial production of evidence for a prima facie case and the ultimate burden of persuasion. See State v. Armstrong, 223 Wis. 2d 331, 344 n.19, 588 N.W.2d 606 (1999) (citing Santiago, 206 Wis. 2d at 19).

¶36      If the State does establish a prima facie case of waiver and voluntariness, then, in the absence of countervailing evidence, the statement should be admitted. State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992).