PUBLISHED OPINION
Case
No.: 95-1628
†Petition to review filed
Complete
Title
of
Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
HERIBERTO CASTILLO, JR.,
Defendant-Appellant.†
Oral
Argument: September 4, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion
Released: October 23, 1996
Opinion
Filed: October
23, 1996
Source
of APPEAL Appeal from orders
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Waukesha
(If
"Special", JUDGE: MARIANNE E. BECKER
so
indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred in part: Brown, J.
Dissented in part: Brown, J.
Appellant
ATTORNEYSOn behalf of the defendant-appellant, there were briefs
and oral arguments by Keith A. Findley, assistant state public defender.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, there was a
brief by James E. Doyle, attorney general, and Warren D. Weinstein,
assistant attorney general. There were
oral arguments by Warren D. Weinstein.
COURT OF
APPEALS DECISION DATED AND
RELEASED October
23, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1628
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
HERIBERTO
CASTILLO, JR.,
Defendant-Appellant.
APPEAL
from orders of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge.
Reversed and cause remanded.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. Heriberto
Castillo, Jr., appeals from his ch. 980, Stats.,
commitment to the Wisconsin Resource Center as a sexually violent person. Castillo contends, inter alia, that his due
process rights were violated when the modified commitment order allowed the
State to “retain the benefit of its bargain [Castillo's admission to the
petition's allegations and waiver of his right to a jury trial] while relieving
[it] of its obligation to fulfill its promise of a community placement.” We agree and reverse the commitment
orders. Consistent with Castillo's
requested relief, we remand to the trial court to allow him to withdraw his
admission.[1]
In
May 1990, at the age of fourteen, Castillo was adjudicated delinquent on two
counts of first-degree sexual assault for having had sexual intercourse with
his sister.[2] He was placed under supervision at Norris
Adolescent Center and was eventually placed at Ethan Allen School.
Prior
to his scheduled release date, the State filed a petition to have Castillo
committed as a sexually violent person, see § 980.015(2), Stats., and thereby postpone his
release and order his commitment for continuing treatment. A probable cause hearing was held. At that hearing, a psychologist testified for the State that Castillo had a mental
disorder, paraphilia, which involves choosing and fantasizing about sexual
partners who are inappropriate, either by virtue of their age or relationship
to the individual. The psychologist
detailed Castillo's family history, the results of treatment and his belief
that Castillo continued to pose a threat to his sister. The psychologist also expressed concern that
Castillo might choose to have sexual contact with other inappropriate partners
since he had done so in the past.[3]
The
court found probable cause to believe that Castillo was a sexually violent
person under ch. 980, Stats. However, two mental health experts and the
State agreed that supervised release was appropriate. This was in recognition of the ch. 980 requirement that “[t]he
department shall arrange for control, care and treatment of the person in the
least restrictive manner ....” Section
980.06(2)(b), Stats. The State attempted to reach a settlement in
order to enter the commitment order specifying supervised release.
While
these negotiations were ongoing, the Department of Health and Social Services
(DHSS) prepared and filed a predispositional report which recommended
institutional placement. Section
980.06(1), Stats., places
responsibility for the “control, care and treatment” of any person found to be
sexually violent with DHSS. According
to the State, DHSS was not supporting community-based supervision “because they
don't have a place to put him.”
Discussions between the State, Castillo's counsel and DHSS followed in
an attempt to secure community-based supervision and release. In January 1995, Castillo informed the court
that he would admit to the allegations in the petition and waive his trial
rights in exchange for a court order requiring DHSS to locate a community
placement. The court accepted
Castillo's admission and then ordered DHSS to identify a community-based
facility.
DHSS
attempted to place Castillo in a community-based setting.[4] Ultimately, DHSS recommended placement at
Cephas House, a Department of Corrections halfway house run under contract by
Lutheran Social Services (LSS).
Consideration was also given to placement in a private apartment with
intensive supervision by a private social worker. The court accepted the recommendation that Castillo be placed at
Cephas House. A final written
dispositional order was entered by the court.
Within
two weeks, Cephas House, although initially receptive to the placement,
declined to accept Castillo. This was
based on public reaction to the placement, which had caused LSS to fear that
the town would take zoning action against it.
Its landlord also threatened not to renew the Cephas House lease if
Castillo were placed there. The
alternative, placing Castillo in a private apartment under the supervision of a
private social worker, was then ordered.
This option failed after media attention was focused on Castillo living
at the apartment building and the landlord bowed to community pressure by
refusing to rent to DHSS.[5]
The
State then brought a motion to reopen Castillo's dispositional order and modify
it to an institutional placement, since “the attempts to effectuate and execute
the court's order for placement have not been successful, [and] a different
placement alternative must be established.”
The trial court concurred, reasoning that “[a]t this time the least
restrictive level of treatment is the Resource Center.” The court then ordered Castillo committed to
the Wisconsin Resource Center, and this appeal followed.
We
begin with an analysis of the State's filing of the motion for reconsideration
after it became apparent that the State would be unable to fulfill the
community placement agreement. A trial
court has inherent power to vacate or modify an order. See § 807.03, Stats. The trial
court's power to amend its earlier order when it became apparent that DHSS
would be unable to place Castillo in a community-based setting is not at
issue. See Servatius v.
Pickel, 30 Wis. 507, 508‑09 (1872).
Our
analysis of the legal effect of the State's motion to revise the dispositional
order and the trial court's subsequent modification of that order requires that
we apply the principles of fundamental fairness and due process to the facts of
the case. We review de novo the
application of constitutional principles to undisputed facts. See State v. Comstock,
163 Wis.2d 218, 221, 471 N.W.2d 596, 597 (Ct. App. 1991), rev'd on other
grounds, 168 Wis.2d 915, 485 N.W.2d 354 (1992).
The
supreme court has determined that the provisions of ch. 980, Stats., are constitutional. See State v. Carpenter,
197 Wis.2d 252, 276, 541 N.W.2d 105, 114 (1995); see also State v.
Post, 197 Wis.2d 279, 293-94, 541 N.W.2d 115, 118 (1995). Furthermore, ch. 980 includes several
sections which outline certain rights afforded to persons who face commitment
proceedings. Section 980.03(2), Stats., provides that without
limitation by enumeration, persons are to be afforded the right to counsel,
to remain silent, to present and cross-examine witnesses, and to have any
hearing recorded by a court reporter.
Additionally, § 980.05(1m), Stats.,
directly addresses an individual's trial rights when it states: “All constitutional rights available to a
defendant in a criminal proceeding are available to the person.”
At
its most fundamental level, due process concerns the right to be treated
fairly. The law is clear that when an
individual has given up the right to a jury trial by pleading guilty,
fundamental fairness requires that the individual's expectations be
fulfilled. See State v.
Wills, 187 Wis.2d 529, 537, 523 N.W.2d 569, 572 (Ct. App. 1994).
The
United States Supreme Court has stated, “[W]hen a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be
fulfilled.” Santobello v. New
York, 404 U.S. 257, 262 (1971).
This is reiterated in State v. Bond, 139 Wis.2d 179, 187,
407 N.W.2d 277, 280 (Ct. App. 1987), when it states that a prosecutorial
promise is considered binding and must be fulfilled. This court went on to note that the due process analysis which
underpins the law that a prosecutorial agreement with a defendant is binding
also has applicability in bargaining contexts outside of plea bargains. Id. at 188, 407 N.W.2d at
281. As we there concluded,
“Essentially, any violation of a prosecutorial promise triggers considerations
of fundamental fairness and is a deprivation of due process.” Id.
It
is undisputed that Castillo waived his right to a jury trial when he admitted
the allegations which supported the petition that he is a sexually violent
person. It is also clear from the
record that the reason he admitted to the allegations was to move the
dispositional process forward and allow the court to order DHSS to arrange for
community-based supervision and treatment.
For the reasons outlined in the statement of facts, DHSS was unable to
place Castillo in a community-based setting.
When this became apparent, the State requested a modification of the
dispositional order which had ordered community-based supervision and treatment
and instead requested that Castillo be placed in an institutional setting. We conclude that the State's request for a
modification of the dispositional order was a breach of its plea agreement with
Castillo.
The
State disputes this analysis and contends that because Castillo's commitment
was a civil proceeding, no “plea agreement” was ever reached. We are not persuaded. Under the language of Santobello
and Bond, the designation of the proceeding as civil or criminal
is immaterial; rather, the fact that due process rights were waived in exchange
for an inducement is critical.
The
State further argues that even if the negotiations between Castillo and the
State amounted to a plea agreement, it has not breached that agreement because
it recommended supervised release.
While at the outset the State was a proponent of Castillo's supervision
in a community-based setting, this argument ignores the role the State played
in seeking a modification of the dispositional order.
The
State submits that § 980.06(2)(d), Stats.,
permits the court to take the action it took in the instant case. The State quotes, as pertinent, the
following portion of the statute:
If the department alleges that a released person
has violated any condition or rule, or that the safety of others requires that
supervised release be revoked ... it may revoke the order for supervised
release .... [Emphasis added.]
We disagree.
This section pertains only to released persons who are already
under the custody and control of DHSS.
Castillo was never released.
Furthermore, the language the State omitted after the word “revoked”
states, “[H]e or she may be taken into custody under the rules of the
department.” See id.[6] At the time the court issued the
modification of its final dispositional order, Castillo was still in custody.[7] The cited section of ch. 980, Stats., does not apply to relieve the
State of its burden according to the plea agreement.
In
sum, Castillo waived his right to a jury trial and admitted to the allegations
in the ch. 980, Stats., petition
after the State agreed that he would be placed in a community-based
setting. See § 980.05, Stats.
Castillo's counsel stated that this was done to enable the trial court
to order DHSS to locate a community-based facility where Castillo would be
under supervised release rather than institutionalized. The agreement also foreclosed Castillo's
unmonitored return to the community.
DHSS
was unable to locate a ch. 980, Stats.,
community placement that would accept Castillo, and the State moved to modify
the dispositional order to direct institutional placement. The trial court granted the State's motion
and revised the order, committing Castillo to an institution, the Wisconsin
Resource Center. We conclude that
Castillo's admission to the allegations in the underlying petition was akin to
a plea agreement and hold that when the State failed to adhere to its bargained
promise, regardless of the reason, the trial court was required to allow
Castillo an opportunity to withdraw his plea admitting to the petition.
Having
concluded that the State breached its plea agreement with Castillo, the only
remaining issue is that of a remedy.
The law is clear that the concept of fundamental fairness prohibits the
government from breaching an agreement which induced a person to take action
otherwise detrimental to himself or herself in reliance on the agreement. State v. Beckes, 100 Wis.2d 1,
6, 300 N.W.2d 871, 874 (Ct. App. 1980).
Beckes then goes on to state that without detrimental
reliance on the agreement, the individual has an adequate remedy by being
restored to the position that he or she occupied before entering into the
agreement. Id. at 7, 300
N.W.2d at 874. Furthermore, if specific
performance of the terms of a plea agreement is not possible, a withdrawal of
an induced plea is the only available remedy.
See State v. Bangert, 131 Wis.2d 246, 292, 389
N.W.2d 12, 34 (1986).
Under
the facts of this case, the court determined that specific performance of the
State's agreement was not possible.
Castillo remains in custody because of his detrimental reliance on the
State's proffered plan for noninstitutionalized release. We conclude that the appropriate remedy is
to return Castillo “to the position he occupied before he entered into the
agreement.” See Beckes,
100 Wis.2d at 7, 300 N.W.2d at 874.
Since the State was unable to keep its part of the plea agreement that
Castillo be placed under community-based supervision, he must be permitted to
withdraw his no contest plea.
By
the Court.—Orders reversed and
cause remanded.
No. 95-1628(CD)
BROWN,
J. (concurring in part, dissenting in part). What saves the sexual predator law from being unconstitutional is
its requirement that DHSS provide the defendant with treatment in the least
restrictive manner possible, not the least restrictive treatment that DHSS has
available. Since the trial court found
that the least restrictive treatment for Heriberto Castillo, Jr., was
supervised community placement, the difficulty that DHSS faced in locating an
appropriate facility was not legitimate grounds for later ruling that Castillo
should instead be placed at the Wisconsin Resource Center.
Because
of the mandate that is placed on DHSS, I dissent from the part of the majority
decision holding that Castillo's alternative request to set aside his plea
agreement is the narrowest and most appropriate grounds on which to decide this
case. Majority op. at 2 n.1. As counsel for the attorney general noted at
oral argument, setting aside the plea agreement and permitting Castillo to
pursue a trial on the merits will not “solve the problem.” Because the evidence almost certainly points
towards a conclusion that Castillo is a sexual predator, the trial court will
again face the task of crafting a proper dispositional order.
However,
even with my concerns regarding the application of the sexual predator law to
Castillo, I still join the majority's decision to reverse the trial court's
amended dispositional order that directed Castillo to the Wisconsin Resource
Center. See majority op. at
10-11. But as I explained above, I
would not remedy Castillo's claim by remanding this case for further
proceedings and a possible trial.
Rather, I would act on the suggestion to get to the merits. Here, I construe ch. 980, Stats., to require that DHSS provide
Castillo with the community placement that the trial court previously found
appropriate and, accordingly, I would direct the trial court to enter an order
demanding that DHSS adhere to the law.
In
the paragraphs below, I will further outline my beliefs regarding the demands
that the sexual predator law places on DHSS when the State seeks commitment of
a sexual predator. I will then show how
this analysis applies to Castillo's claim that he is entitled to the form of
commitment outlined in the original dispositional order.
DHSS's
duty to give alleged sexual predators treatment in the “least restrictive
manner consistent with the requirements of the person” is what makes ch. 980, Stats., constitutional. See § 980.06(2)(b). This mandate is readily discernable upon
examination of the history leading to the attorney general's defense of the law
in State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995), and
State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995).
The
legislature developed ch. 980, Stats.,
in response to the public's outcry over the Gerald Turner case. Post, 197 Wis.2d at 343, 541
N.W.2d at 138-39 (Abrahamson, J., dissenting).
The statements of the Governor and some of the other lawmakers,
moreover, strongly suggest that the original intent of the law was to keep sex
offenders locked away from the public at all costs. See id. at 343-45, 541 N.W.2d at
139. In fact, Justice Abrahamson
grounded her dissenting conclusion that the law was unconstitutional on this
evidence. Id. at 338, 541
N.W.2d at 136.
Nonetheless,
when the attorney general's office had to defend attacks that the law had ex
post facto and double jeopardy problems, it downplayed the confinement purpose
and instead argued how the law was really aimed at treatment. In its brief to the supreme court, the
attorney general wrote:
The
statute's primary purpose of commitment of dangerous, mentally disordered
persons in order to protect the public is revealed by the language and
structure of the statute, which provides for commitment to the department of
health and social services for control, care and treatment with provisions for
the least restrictive placement and periodic review of the person's condition
.... This basic structure and emphasis
on the person's current condition are wholly consistent with a mental health
commitment statute and wholly inconsistent with punishment.
Brief for State of Wisconsin at 12, State v.
Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995) (Case No.
94-1898). The attorney general's office
also tried to show the supreme court in Post how:
The
statute is narrowly drawn to target those who are at highest risk to rape or
molest again. It is narrowly drawn to
serve only its legitimate public protection purpose--by incapacitation and
treatment. The treatment is geared to
reducing the risk of recidivism. And
the incapacitation ends when that purpose is fulfilled.
Brief for State of Wisconsin at 45, State v. Post,
197 Wis.2d 279, 541 N.W.2d 115 (1995) (Case Nos. 94-2356 and 94-2357). Based on such statements, the attorney
general's office certainly understands that the acceptable purpose of the
sexual predator law is to provide treatment, not to incarcerate or punish.
Of
course, what is most important to my analysis is the supreme court's reaction
to these claims. Here, I read the Carpenter
and Post decisions to accept the attorney general's analysis that
treatment and commitment to DHSS make ch. 980, Stats., distinguishable from a punitive sanction. For example, Justice Bradley, writing for
the majority in Carpenter, explained how ch. 980 did not involve
punishment because “a person found to be sexually violent is committed to the
custody of DHSS for control, care and treatment, as opposed to the DOC for
imprisonment.” Carpenter,
197 Wis.2d at 266, 541 N.W.2d at 110.
She further emphasized how “DHSS is required to ‘arrange for control,
care and treatment of the person in the least restrictive manner consistent
with the requirements of the person ....’”
Id. (quoting § 980.06(2)(b), Stats.).
Justice
Geske appears to have also accepted the attorney general's analysis when she
made the following statement:
We
conclude that treatment is a bona fide goal of this statute and we presume the
legislature will proceed in good faith and fund the treatment programs
necessary for those committed under chapter 980.
Post, 197 Wis.2d at 308, 541 N.W.2d at 124. Although DHSS has had difficulty locating an appropriate facility
for Castillo, and the attorney general's office now seems to be backing away
from the claims it previously made in Carpenter and Post,
this court has a duty to enforce the supreme court's conclusion that such
treatment is “necessary” for persons subjected to commitment under ch. 980, Stats.
See Post, 197 Wis.2d at 308, 541 N.W.2d at 124; see
also § 980.06(2)(b).
Even
though the supreme court accepted the attorney general's analysis about how the
sexual predator law may be used without violating the Wisconsin or federal
constitutions, I recognize that there is continuing debate over how the law
should be applied to people like Castillo.
Many of this state's citizens believe that sexual predators should be
kept locked away from society regardless of the constitutional
implications. Signs of this debate are
indeed present within this record. For
example, a newspaper article about the case quotes one of the law's sponsors,
Senator Alberta Darling, who described the trial court's community placement
order as “an outrage.” I infer from her
statements that she believes that Castillo, like all other sexual predators,
should be placed at the Wisconsin Resource Center because the legislature
specifically designated the facility to house such offenders. See § 980.065(1), Stats.
Nevertheless,
the Carpenter and Post decisions reveal that the
supreme court determined that the sexual predator law is a constitutional
treatment statute, not an unconstitutional punitive statute, because the law
accounts for the possibility that a sexual predator may not need to be secured
away at the Wisconsin Resource Center to receive effective treatment. The supreme court read the law to place a
duty on DHSS to ensure that sexual predators would receive the “least
restrictive” placement possible. See
§ 980.06(2)(b), Stats. I am bound to that conclusion.
In
fact, I draw a strong analogy between DHSS's duty to provide personalized
treatment for accused sexual predators and its duty to provide persons set for
conditional release from mental institutions with residential placement. See Rolo v. Goers, 174 Wis.2d
709, 717-18, 497 N.W.2d 724, 727 (1993).
Although the Rolo court specifically addressed DHSS's duty
under § 971.17, Stats., 1993‑94,
the plain wording of the sexual predator law shows that the legislature
similarly intended that DHSS would provide accused sexual predators with
community placement if that was what the trial court found to be the “least
restrictive” treatment possible. See
§ 980.06(2)(b), Stats.
I
acknowledge that one would not ordinarily expect sexual predators to be the
“benefactors” of legislative largesse.
Moreover, I think it is quite possible that the legislature (and the
attorney general's office when it argued Post and Carpenter)
never imagined that a prosecutor would face a case in which community placement
of the sexual predator was the appropriate disposition. However, the plain words of the statute and
the supreme court's interpretation of those words show that the legislature
accounted for this remote possibility.
And the legislature had good reason to do so—it wanted the sexual
predator law to survive a constitutional challenge. See Carpenter, 197 Wis.2d at
268-69, 268 n.10, 541 N.W.2d at 111-12, 111 (addressing claim that treatment
and early release provisions of ch. 980, Stats.,
were only included to make the law constitutionally “palatable”).
Understanding
that DHSS's role is limited to providing the services to sexual predators that
the trial court deems are appropriate, I am puzzled by the suggestion made
before this court by the attorney general's office that the sexual predator law
was written “backwards” because DHSS is not able to participate in the
formation of the dispositional order.
The attorney general's office suggests that earlier involvement by DHSS
would prevent Castillo's situation from reoccurring because then the trial
court would know what was available before it developed a
disposition.
But
the law says that the trial court must determine what treatment is “consistent
with the requirements of the person.”
Section 980.06(2)(b), Stats. (emphasis
added). The legislature did not write
§ 980.06(2)(b) to say that the trial court must determine what treatment
is “consistent with the requirements of the person and the resources of the
department.” Indeed, because the
trial court is constitutionally required under Post and Carpenter
to focus only on the treatment needs of the person, what resources DHSS happens
to have available is simply not relevant to the calculus that the trial court
performs when it writes the dispositional order.
Turning
now to Castillo's specific appellate claims, I conclude that the trial court
made a legal error when it modified its order calling for community
placement. Although a trial court
certainly has the inherent power to modify or vacate its orders, see
§ 807.03, Stats., its
decision to do so must be properly grounded on the law and is subject to
appellate review. Here, the trial court
grounded its decision to modify the order solely on DHSS's inability to locate
an appropriate facility. The majority
also recognizes this fact. Majority op.
at 5. But because the sexual predator
law requires that DHSS provide a sexual predator with community placement when
a trial court finds that such placement is warranted, the trial court made an
error in law when it determined that DHSS's difficulties were a legitimate
reason to modify the dispositional order.[8]
With
regard to a remedy for the identified error, I would simply enforce the rule
set out in Carpenter and Post which requires that a
sexual predator's confinement be the least restrictive available. Although the attorney general's office
argues that this court cannot make a state agency appropriate funds without violating
the separation of powers doctrine, when the legislature wrote the sexual
predator law it imposed a duty on DHSS
to provide such facilities. My decision
would simply enforce that directive. See
Rolo, 174 Wis.2d at 717-18, 497 N.W.2d at 727 (“the legislature must
have provided for some governmental entity to fund residential placements and
other services, or the entire process would be rendered meaningless
....”). I would therefore reinstate the
trial court's original dispositional order.
I would then direct the trial court to issue an order compelling DHSS to
fulfill its duty to provide Castillo with treatment consistent with that order.
[1] Castillo also
contends that the trial court wrongly ordered an institutional placement after
it had initially determined that a community placement was appropriate and that
ch. 980, Stats., is
unconstitutional as applied here because the State refused to make available
the least restrictive placement option.
Because we conclude that the benefit of the placement bargain is
dispositive, we decline to address the other issues presented for review. See Sweet v. Berge, 113
Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). This is in keeping with the general rule that cases should be decided
on the narrowest possible grounds. State
v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989).
[2] The
dispositional order also included two other counts of having had sexual
intercourse with his sister, which were read in. At the time of the two charged incidents, Castillo's sister was
nine years old.
[3] The psychologist
noted that in addition to having had sexual intercourse with his sister,
Castillo had also sexually abused another child over the age of sixteen but
under the age of eighteen. He
testified, “I felt that his sexual disorder manifests itself in a number of
different ways, including but not limited, by any means, to children.”
[4] Placement in his
father's home was ruled out because his father had a prior conviction himself
for a sex offense.
[6] The pertinent
portion of § 980.06(2)(d), Stats.,
reads:
If the department alleges that a released person has
violated any condition or rule, or that the safety of others requires that
supervised release be revoked, he or she may be taken into custody under the
rules of the department. The department
shall submit a statement showing probable cause of the detention and a petition
to revoke the order for supervised release to the committing court and the
regional office of the state public defender .... The state has the burden of proving by clear and convincing evidence
that any rule or condition of release has been violated, or that the safety of
others requires that supervised release be revoked. If the court determines after hearing that any rule or condition
of release has been violated, or that the safety of others requires that
supervised release be revoked, it may revoke the order for supervised release
....
[7] The original final dispositional order dated
March 21, 1995, stated that “[o]n or before March 29, 1995, the Department
shall physically place [Castillo] at the Cephas House ....” The order further allowed that “[i]f [DHSS]
cannot make the necessary arrangements for physical placement ... at the Cephas
House on or before March 29, 1995, [Castillo] shall then be placed in an
apartment, rooming house or other like living arrangement in Waukesha County to
be chosen and supervised by Danny F. Patrick ....” The order then returned Castillo to the Wisconsin Resource Center
“pending placement under this Order.”
[8] The State also
cites evidence demonstrating that Castillo's psychological condition had
deteriorated in the time that passed between the formation of the original
order and the hearing on its motion to amend that order. I nonetheless read the trial court's opinion
to have rejected this evidence and I do not believe that the State has
established that this finding was clearly erroneous. See § 805.17(2), Stats.