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    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

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    Juvenile Law

    Termination of Parental Rights – Abandonment

    Brown Cty. Human Servs. v. B.P. (In re Termination of Parental Rights to A.P.), 2019 WI App 18 (filed 1 March 2019) (ordered published 24 April 2019)

    HOLDINGS: 1) Brown County properly proceeded to terminate parental rights under Wis. Stat. section 48.415(1)(a)3. even though the child had been involuntarily removed from the parental home pursuant to a child in need of protection or services (CHIPS) order. 2) The involuntary placement of a child pursuant to an out-of-home CHIPS order can satisfy the “has been left by the parent with any person” element in Wis. Stat. section 48.415(1)(a)3. 3) The circuit court correctly granted partial summary judgment against the child’s father, but erroneously did so against the child’s mother because material questions of fact exist as to her alleged good cause for abandoning the child.

    SUMMARY: A child’s father and mother appealed partial-summary-judgment orders finding that grounds existed to terminate their parental rights. The circuit court concluded under Wis. Stat. section 48.415(1)(a)3. that both parents abandoned their daughter, who had been involuntarily removed from the mother’s home pursuant to a CHIPS order. In an opinion authored by Judge Stark, the court of appeals affirmed in part and reversed in part.

    The mother claimed that petitioner Brown County failed to state a claim for which relief could be granted because it pleaded a legally inapplicable ground for the termination. Specifically, she contended that when the government seeks termination on grounds of abandonment in a case for which an out-of-home CHIPS order is in place, it must proceed under Wis. Stat. section 48.415(1)(a)2., which specifically references such cases, and may not proceed under Wis. Stat. section 48.415(1)(a)3., which contains no such reference.

    The appellate court disagreed. The court of appeals concluded that “in a termination of parental rights (TPR) action, Wis. Stat. § 48.415(1)(a)’s plain language permits the Department to plead any factually and legally applicable statutory basis for abandonment. Therefore, the Department was not limited to seeking termination of [the parents’] parental rights under subd. 2., despite the fact that [the child] was placed out of each parent’s home pursuant to a CHIPS order” (¶ 3).

    The mother also argued that the abandonment ground in Wis. Stat. section 48.415(1)(a)3. did not apply because one of its elements – that the child was “left” by a parent with another person – cannot be met inasmuch as her daughter was involuntarily removed from her home pursuant to a CHIPS order. Again, the appellate court disagreed. “We further conclude that the involuntary placement of a child pursuant to an out-of-home CHIPS order can satisfy [§ 48.415(1)(a)3’s] ‘has been left’ element” (id.).

    On the facts of this case the appellate court concluded that the circuit court erred in granting partial summary judgment against the mother because material questions of fact exist as to her good-cause defense for abandoning her daughter. However, the circuit court did not err in granting partial summary judgment against the father because he failed to raise sufficient issues of material fact regarding his good-cause defense for abandoning his daughter so as to warrant a fact-finding hearing (see ¶ 4).

    Mental Commitments

    Involuntary Medication – Incompetent Prisoners

    Winnebago Cty. v. C.S. (In re Mental Commitment of C.S.), 2019 WI App 16 (filed 27 March 2019) (ordered published 24 April 2019)

    HOLDING: The Wisconsin statute that permits the involuntary medication of incompetent state prisoners is constitutional despite not requiring a finding of dangerousness.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: C.S., the petitioner, was convicted of “mayhem” as a repeater and sentenced to prison. Later, he was found to be incompetent as relates to his treatment and was involuntarily committed under Wis. Stat. chapter 51. In June 2015, following a jury trial, the judge ordered an extension of C.S.’s commitment under Wis. Stat. section 51.20(1)(ar) and also ordered that he be involuntarily medicated and treated as provided by Wis. Stat. section 51.61(1)(g). The Wisconsin Supreme Court rejected a facial challenge to C.S.’s involuntary commitment in an earlier appeal, Winnebago Cty. v. Christopher S. (C.S. I), 2016 WI 1, ¶ 3, 366 Wis. 2d 1, 878 N.W.2d 109.

    In this appeal, C.S. raised “the intertwined issue of involuntary medication of prisoners under Wis. Stat. § 51.61(1)(g), without a finding of dangerousness” (¶ 4).

    The court of appeals also rejected this challenge. Judge Reilly’s opinion builds on C.S. I, which speaks to the state’s “compelling interest” in caring for mentally ill prisoners (¶ 13). The court distinguished cases that construe statutes requiring a dangerousness finding when the mentally ill prisoner is nonetheless competent, especially when the state relies on a rationale sounding in the “safety and security of the prison” (¶ 19). Other cases hold that dangerousness is just “one way” the state can show a valid justification for administering psychotropic drugs (¶ 20).

    In sum, C.S. failed to show that the statute “is unconstitutional under all circumstances and beyond a reasonable doubt” (¶ 21).

    Torts

    Negligence – Insurance Agency – Causation

    Emer’s Camper Corral LLC v. Alderman, 2019 WI App 17 (filed 19 March 2019) (ordered published 24 April 2019)

    HOLDING: The circuit court properly granted a directed verdict in favor of an insurance agent who was sued for negligence.

    SUMMARY: Camper Corral LLC is in the business of selling new and used campers. In 2012, Camper Corral’s “garage policy” carrier notified Camper Corral that it would not renew the policy because of claims filed in 2011 and 2012 relating to hail damage. An insurance agent, Alderman, found another insurer for Camper Corral, and that insurer issued a replacement policy with a more expensive hail damage deductible per unit than under the cancelled policy. Hail damage in a 2014 storm saddled Camper Corral with a deductible of $125,000; its insurer paid $65,000. Camper Corral sued Alderman for negligence in procuring the new policy. Following the plaintiff’s case-in-chief during a trial by jury, the judge granted a directed verdict in favor of Alderman.

    The court of appeals affirmed in an opinion authored by Judge Stark. The “general availability” of policies with a more favorable deductible was insufficient evidence (¶18). Although there was no Wisconsin case on point, the court found persuasive cases from other jurisdictions. It held that “in order to prevail on its negligence claim, Camper Corral was required to prove that it would have been able to obtain a policy containing a more favorable hail damage deductible absent Alderman’s alleged negligence” (¶ 24). Because no credible evidence proved this fact, the circuit court properly directed a verdict in the insurance agent’s favor.




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