|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
15, 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. |
Nos. 95-3075
95-3076
95-3077
95-3078
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
95-3075
IN THE
INTEREST OF HOLLY O.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A.O.,
Respondent-Appellant.
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95-3076
IN THE
INTEREST OF JEREMY C.T.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A.O.,
Respondent-Appellant.
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95-3077
IN THE
INTEREST OF MICHAEL A.T.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A.O.,
Respondent-Appellant.
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95-3078
IN THE
INTEREST OF ANDREW J.T.,
A
PERSON UNDER THE AGE OF 18:
STATE OF
WISCONSIN,
Petitioner-Respondent,
v.
KAREN
A.O.,
Respondent-Appellant.
APPEAL
from orders of the circuit court for Waupaca County: JOHN A. DES JARDINS, Judge.
Reversed and cause remanded.
GARTZKE,
P.J.[1] Karen O. appeals from orders terminating her
parental rights to her four children, Jeremy, Andrew, Michael and Holly. Karen raises two issues: whether the Waupaca County department of
social services used diligent efforts to provide services ordered by the court
under § 48.415(2)(b), Stats.,
and whether termination of her parental rights was the proper disposition under
§ 48.427(3), Stats. We raised a third issue: whether the verdicts satisfy the five-sixths
requirement in § 805.09(2), Stats.,
and we ordered supplemental briefing on that issue.
Because
we conclude that the verdict fails to satisfy the five-sixths requirement, and
because we conclude that Karen should not be bound by her failure to raise the
issue in the trial court, we reverse the orders before us on appeal and remand
for a new trial. Our disposition makes
it unnecessary for us to review the remaining issues.
It
is undisputed that on the tenth day of the trial the parties agreed to have
twelve jurors plus the two alternate jurors decide the case. That means 12 of the 14 jurors must agree to
satisfy § 805.09(2), Stats. That statute provides, "A verdict
agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered
to arrive at a verdict on the same claim, the same five-sixths of the jurors
must agree on all of the questions."
The
jury returned a special verdict in each of the four cases. Each verdict asked the jury to answer six
questions. The first and second
questions asked whether the child had been previously adjudicated to be a child
in need of protection or services and was placed outside the child's home
pursuant to court orders for a cumulative period of one year or longer, and
whether the court had entered at least one order containing a warning to the
parents and had orally informed Karen O. of possible grounds for termination of
her parental rights and other conditions necessary for the child to be returned
home. All jurors answered yes to those
questions. The fourth question asked
whether the child had been placed outside of Karen O.'s home for a cumulative
period of over one year. All jurors
responded yes.
Some
jurors dissented to the majority's answers to three questions. Question 3 asked whether the agency
responsible for the care of the child and the family had made a diligent effort
to provide services ordered by the court.
The jury answered yes but jurors Rosenberg and Hartwig dissented. Question 5 asked whether Karen O. had
substantially neglected, wilfully refused or been unable to meet the conditions
established for the return of the child to the home. The jury answered yes but jurors Bushan and Hartwig
dissented. Question 5 asked whether
there is a substantial likelihood that Karen O. will not meet those conditions
in the future. The jury answered yes
but jurors Meddaugh and Rosenberg dissented.
Thus, the same twelve jurors did not agree on any of the four verdicts.
During
a telephone conference the attorneys for the parties informed this court that
before the jury was discharged, the trial court held a bench conference with
counsel, showed them the verdict, and called the dissents to their
attention. No party requested that the
jury be directed to deliberate further, and the trial court received the
verdicts. Apparently at the conclusion
of the motion hearing, no transcript was prepared. Karen filed post-verdict motions but did not raise the
five-sixths issue.
Because
Karen failed to raise the five-sixths issue in the trial court, she cannot
raise it on appeal as of right. In
short, she waived the right to appellate review. But the waiver rule is not absolute. It is a rule of judicial administration and does not deprive this
court of the power to address the waived issue. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d
140, 145-46 (1980).
The
State's power to terminate parental rights "is an awesome one, which can
only be exercised under proved facts and procedures which assure that the power
is justly exercised." In re
Termination of Parental Rights to M.A.M., 116 Wis.2d 432, 436, 342
N.W.2d 410, 412 (1984). Although the
trial court, the State and Karen's counsel knew there was at least a problem
with regard to the verdict, nothing was done about it, such as giving the jury
another go at it. In our view, Karen's
parental rights were not justly terminated if the verdict failed to meet the
statutory five-sixths requirement. We
exercise our discretion to address the issue.
In
its supplemental brief, the State argues that the five-sixths rule has not been
violated. The State asserts that
answers to a verdict are reviewed to determine whether the jurors responses are
consistent, citing Westfall Terwilliger v. Kottke, 110 Wis.2d 86,
328 N.W.2d 481 (1983); Fondell v. Lucky Stores, Inc., 85 Wis.2d
220, 270 N.W.2d 205 (1978); Utecht v. Steinhagel, 54 Wis.2d 507,
192 N.W.2d 674 (1972); McCauley v. Int'l Trading Company, 268
Wis. 62, 66 N.W.2d 633 (1954); Fleischacker v. State Farm Mut'l Auto.
Ins. Co., 274 Wis. 215, 79 N.W.2d 817 (1956); and Statz v. Pohl,
266 Wis. 23, 62 N.W.2d 556 (1954). None
of those cases involved termination of parental rights. The State asserts that a termination case, In
Interest of C.E.W., 124 Wis.2d 47, 368 N.W.2d 47 (1985), is the closest
in point. The C.E.W.
court held a jury need not return consistent verdicts with regard to each of
three children, and that "no logical reason [existed] for the circuit
court to impose the requirement of unanimity across [the six]
verdicts." Id. at
72, 368 N.W.2d at 59. C.E.W.
is not pertinent. Whether dissents had
rendered the verdicts defective under the five-sixths rule was not an issue
before the C.E.W. court.
The
State confuses the consistency requirement with the five-sixths requirement in
§ 805.09(2), Stats. "An inconsistent verdict is a term of
art used in describing jury answers which are logically repugnant to one
another." Fondell v. Lucky
Stores, Inc., 85 Wis.2d 220, 228, 270 N.W.2d 205, 210 (1978). If the jury returns inconsistent answers,
the verdict must be set aside. Consistency
has nothing to do with the five-sixths rule.
This is shown by Utecht v. Steinhagel, 54 Wis.2d 507, 196
N.W.2d 674 (1972).
The
Utecht court found that a special verdict contained inconsistent
answers, "and upon this ground alone a new trial must be ordered. We are of the further opinion the verdict
must be set aside and a new trial ordered because the verdict does not comply
with the five-sixths statute." Id.
at 516, 196 N.W.2d at 679. After
discussing the five-sixths issue, the court returned to the question of an
inconsistent verdict, when it said that the jury's answers to certain questions
were "in irreconcilable conflict."
Id. at 518, 196 N.W.2d at 680. That quotation pertains to the consistency issue, not to
compliance with the five-sixths requirement.
The
State asserts that Karen's inability to meet the conditions established for the
return of the children to her home is not inconsistent with the conclusion that
the department exercised diligent efforts to reunite the family, and the jury's
answers to those questions are not inconsistent with its finding that the
mother would be unable to meet those conditions in the future. We need not review that reasoning. It has nothing to do with the five-sixths
rule. "It has often been held that
in order to have a good verdict, the same ten jurors must concur in the answers
to all questions which are necessary to support a judgment." Fleischacker v. State Farm Mut'l Auto.
Ins. Co., 274 Wis. at 218, 79 N.W.2d at 819 (emphasis added); McCauley
v. Int'l Trading Co., 268 Wis. at 70, 66 N.W.2d at 638. The State concedes, as it must, that a
negative response to any one of the questions in the special verdict would
result in a dismissal of the petition.
For that reason an affirmative response to each question in each verdict
is necessary to sustain the orders terminating parental rights. An affirmative response is absent when the
five-sixths rule is violated.
By
the Court.—Orders terminating
parental rights of Karen O. in docket numbers 95-3075, 95-3076, 95-3077 and
95-3078 reversed and a new trial ordered.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.