2013 WI App 102
court of appeals of wisconsin
published opinion
|
Case Nos.: |
2012AP2387 2012AP2388 |
|
|
Complete Title of Case: |
|
|
|
JUDGES: |
Brown, C.J., Neubauer, P.J., and Gundrum, J. |
|
Concurred: |
|
|
Dissented: |
|
|
|
|
|
Appellant |
|
|
ATTORNEYS: |
On behalf of the respondent-appellant, the cause was submitted on the briefs of Faun M. Moses, assistant state public defender of Madison. |
|
|
|
|
Respondent |
|
|
ATTORNEYS: |
On behalf of the petitioner-respondent, the cause was submitted on the brief of Michelle M. Snead, assistant corporation counsel, Elkhorn. |
|
|
|
2013 WI App 102
|
COURT OF APPEALS DECISION DATED AND FILED July 24, 2013 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
|
Appeal Nos. |
2012AP2388 |
Cir. Ct. Nos.
2007TP20 2007TP19 |
||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
|
|||
|
|
|
|||
|
No. 2012AP2387 |
|
|||
|
In re the termination of parental rights to Dorraj J. J., a person under the age of 18: Walworth County Department of Health & Human Services, Petitioner-Respondent, v. Roberta J. W., Respondent-Appellant. _______________________________________ No. 2012AP2388 In re the termination of parental rights to Exsavon A. J., a person under the age of 18: Walworth County Department of Health & Human Services, Petitioner-Respondent, v. Roberta J. W., Respondent-Appellant. |
||||
|
|
|
|||
APPEALS from orders of the circuit court for Walworth County: DAVID M. REDDY, Judge. Reversed and cause remanded with directions.
Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
¶1 GUNDRUM, J.[1] Terminating a parent’s rights to his or her child affects some of that parent’s most fundamental human rights. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768. The permanency of termination orders “work[s] a unique kind of deprivation … involv[ing] the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.” Id. (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996)). “Although ‘the best interests of the child’ standard set forth in Wis. Stat. § 48.01(1) [2009-10] is a matter of paramount consideration in a termination proceeding … [that] standard does not dominate until the parent has been found unfit.” Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶59, 346 Wis. 2d 396, 828 N.W.2d 198. “During the fact-finding phase, ‘the parent’s rights are paramount.’ Thus, parents in the fact-finding phase of termination of parental rights proceedings require heightened legal safeguards to prevent erroneous decisions.” Id., ¶60 (citations omitted).
¶2 Since
2007, the trial court has held three fact-finding hearings on Walworth County
Department of Health & Human Services’ petitions to terminate Roberta J.
W.’s parental rights to Dorraj J. J. and Exsavon A. J.[2] None have gone well for Roberta or the
County. Unfortunately, the high stakes
involved in this lengthy case are Roberta’s rights to her children and her
children’s well-being.
¶3 Roberta
now appeals the third termination of her parental rights.[3] She contends the trial court erred when it
held that her jury waiver and stipulation to two of the four elements needed to
prove her unfit as a parent, both of which she executed prior to her second
fact-finding hearing, were still effective on remand for a third fact-finding
hearing and operated to deny her both a jury and a determination on those two
elements at that hearing. We agree with
Roberta and reverse.
BACKGROUND
¶4 In
2005, the County removed Dorraj and Exsavon from Roberta’s care and, in 2007,
petitioned to terminate Roberta’s parental rights to both children on the
ground that they were in continuing need of protection or services (CHIPS). Roberta requested and received a jury for the
fact-finding hearing on those petitions. After that hearing and a dispositional
hearing, the trial court entered orders terminating Roberta’s parental
rights. Roberta appealed, and we
reversed and remanded for a new fact-finding hearing.
¶5 Five
days before the second fact-finding hearing was scheduled to begin, Roberta waived
her right to a jury and stipulated to two of the four continuing CHIPS elements
the County would have to prove, with the understanding that the hearing would
be set over for six months and visitation with her children would resume. The court accepted Roberta’s jury waiver and
elements stipulation, set over the fact-finding hearing for six months, and ordered
visitation resumed. Following the
fact-finding hearing before the court on the two remaining elements, and a
dispositional hearing, the trial court again entered orders terminating
Roberta’s parental rights. On appeal, we
reversed on the ground of judicial bias during the fact-finding hearing and
remanded the matter for a new, third, fact-finding hearing.
¶6 Upon
remand, Roberta requested that the third fact-finding hearing be before a jury
and on all four elements. The request
was opposed by the County and denied by the newly assigned trial court
judge. The court concluded that the jury
waiver remained effective on remand, stating “given that it’s a statutory
right, not a constitutional right … once a waiver always a waiver.” The court, without additional explanation,
further held that the elements stipulation also remained in effect for the
third fact-finding hearing. The court
then held the hearing without a jury and required the County to prove only the
two elements to which Roberta had not previously stipulated. The court found Roberta unfit and, after a
dispositional hearing, again entered orders terminating her parental
rights. She appeals. Additional facts are provided as necessary.
DISCUSSION
¶7 Roberta
and the County dispute whether Roberta’s jury waiver and elements stipulation
remained effective upon remand for the third fact-finding hearing. We conclude they did not.
¶8 The
question of whether Roberta’s waiver and stipulation survived on remand
implicates the trial court’s requirement to provide a parent fundamentally fair
procedures in a parental rights termination proceeding; an issue we review de
novo. See Mable K., 346 Wis. 2d 396, ¶40; see also Tesky v. Tesky,
110 Wis. 2d 205, 209-10, 327 N.W.2d 706 (1983). On this question, we find our supreme court’s
decision in Tesky particularly instructive.
In that case, the plaintiff waived his right to a jury for a trial on
the issue of insurance coverage, which centered on the question of ownership of
a vehicle involved in an accident. Tesky, 110
Wis. 2d at 207. The controlling law
at the time of the waiver was that transfer of a title certificate alone
conclusively proved a transfer of ownership liability. Id. at 207-08. After judgment was entered related to
ownership liability, but before trial on the remaining issues, the supreme
court issued a decision which modified the law on the ownership issue by
holding that the intent and conduct of the parties affected the ownership determination. Id. at 208-09, 213. In light of this new decision, the trial
court vacated its judgment and retried the ownership issue; however, it denied
the plaintiff’s demand that the retrial be before a jury. Id. at 208-09. The plaintiff appealed. Id. at 209.
¶9 On
appeal, we recognized that “[a]s a general rule, a party will not be held to a
prior jury trial waiver when the trial court’s judgment is reversed on appeal
and the matter is remanded for a new trial.”
Tesky v. Tesky, 106 Wis. 2d 491, 495, 317 N.W.2d 172 (Ct.
App. 1982). Nonetheless, we affirmed,
concluding that the trial court had not abused its discretion in declining to
grant the plaintiff’s request for a jury.[4] Id. at 495-96.
¶10 The
supreme court reversed, conclusively holding that the decision to set aside a
jury waiver on retrial is not a discretionary one. Tesky, 110 Wis. 2d at 209-10. The court noted that “a stipulation waiving a
jury trial is a procedural stipulation, rather than a contractual one … [and] procedural
stipulations ‘are always understood to have reference to the trial then
pending, and not as stipulations which shall bind at any future trial.’” Id. at 211. While the Tesky decision could be
read as limited to cases where a change in the law introduces a new question of
fact for retrial, see id. at 213, the court also used
clear language suggesting a broader rule:
“We hold that a party to a lawsuit is entitled as a matter of right to a
jury trial on a question of fact if that issue is retried,” id.
at 210. Other jurisdictions have adopted
similar rules. See United States v. Lee, 539 F.2d 606, 608-09 (6th Cir. 1976) (“[W]hen
a reviewing court finds error in the conduct of a trial and reverses with
directions for a new trial … the general rule is that a litigant is not bound
by his prior waiver of a jury trial.”); F.M. Davies & Co. v. Porter, 248
F. 397, 398 (8th Cir. 1918) (Where the “first trial was had to the court, a
jury having been waived by stipulation in writing, … such a stipulation does
not affect the right of either party to demand a trial by jury, on a second
trial, after the judgment in the first trial has been reversed and remanded for
a new trial.”); Burnham v. North Chicago St. Ry. Co., 88 F. 627, 629-30 (7th
Cir. 1898) (“A stipulation to waive [a jury trial], followed by an order of the
court, is not in the nature of a private contract founded upon a consideration .…
It is a proceeding in court” and “the
agreement to waive the right of trial by jury must ordinarily be construed to
apply only to the particular trial at which it is made.” (Citation omitted.)); Nedrow v. Michigan-Wisconsin Pipe
Line Co., 70 N.W.2d 843, 844 (Iowa 1955) (“[C]onditions may be wholly
different at the second trial from what they were at the first. There may be a different judge, and the jury
to be obtained may also be different in character. Then it is hardly fair to presume that by
waiving a jury for one trial the parties intended to waive a jury for any
further trial that may be had under the statutes.” (quoting Cochran v. Stewart, 68
N.W. 972, 973 (Minn. 1896))); People v. Hamm, 298 N.W.2d 896, 899
(Mich. Ct. App. 1980) (“When [the defendant] initially waived his right to a
trial by jury, that waiver only had relation to the first trial. There could be no presumption at the time of
the waiver that there would ever be a second trial. When this Court affirmed the trial judge’s
declaration of mistrial and remanded for a second trial, the parties were
returned to their original positions, and defendant’s original waiver of a jury
trial was nullified. To decide otherwise
would require us to read the original jury waiver as applying in all retrials,
should they be ordered. This we decline
to do.”); Seymour v. Swart, 695 P.2d 509, 512 (Okla. 1985) (Court agreed
with the “majority view” that “in the absence of a statute or stipulation
compelling a contrary conclusion, a waiver of a jury trial is not binding on a
subsequent trial if the right to trial by jury is otherwise applicable. The right of trial by jury may be demanded
and exercised as if the remanded proceedings were initiated afresh.”).
¶11 “[W]aiver
is the intentional relinquishment or abandonment of a known right.” State
v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612
(citation omitted). Related to this, the
Tesky
court concluded: “If we are to say that
the right waived must be an existing one, or even one reasonably anticipated,
then this waiver cannot be effective, as a right to a new trial was not
existent or reasonably anticipated.” Tesky,
110 Wis. 2d at 212 (citations omitted).
Here, at the time of Roberta’s jury waiver and elements stipulation
before the second fact-finding hearing, Roberta did not yet have a right to a third
fact-finding hearing, nor could she have reasonably anticipated the trial court
would exercise judicial bias in the second hearing, thereby necessitating a
third hearing.[5] The County has identified no evidence in the
record suggesting Roberta intended to waive her right to a jury for
fact-finding hearings beyond the one pending at the time of her waiver. We conclude that, absent an unambiguous
declaration that a party intends to bind itself for future fact-finding
hearings or trials, a jury waiver applies only to the fact-finding hearing or
trial pending at the time it is made. See Lee,
539 F.2d at 608-09 (“Unless the language of a waiver unambiguously states that
it will apply in all retrials should they be ordered, a waiver should not
continue in effect after the jurisdiction of the court to which it was tendered
terminates upon the taking of an appeal.”).
¶12 Our
conclusion also appears in accord with our supreme court’s recent decision in Mable
K. In that case, a mother facing
a petition to terminate her parental rights demanded a jury for the
fact-finding hearing. Mable
K., 346 Wis. 2d 396, ¶¶5, 65.
During the second day of that hearing, the trial court entered a default
judgment against the mother. Id.,
¶¶14, 66. On appeal, the supreme court
concluded the trial court erred in entering the default judgment. Id., ¶3. In deciding on an appropriate remedy upon
remand, the court considered but rejected the idea that the mother should be
returned procedurally to the time of the error, which, under the unique facts
of that case, would have meant that any additional evidence the mother offered
would be considered by the court as fact finder, not a jury. Id., ¶¶58, 62. Recognizing that the mother had properly
demanded, and had not waived, her right to a jury, the court concluded that
returning her procedurally to the time of the error would deprive her of that
right. Id., ¶¶65-66. The court determined that, under the facts
before it, a new fact-finding hearing was the only fair remedy that
“recognize[d] and enforce[d] [the mother’s] statutory right[] … to a
jury.” Id., ¶72.
¶13 The
supreme court noted that the relevant statute, Wis.
Stat. § 48.31(2), provides that a fact-finding hearing is to be to
the court unless a jury trial is demanded before or during a plea hearing. Mable K., 346 Wis. 2d 396, ¶65 n.14. Significant to our case, the court, while
aware the mother properly had demanded a jury for the first fact-finding
hearing, stated that, upon remand, “[a] new jury may be empaneled if [the mother] chooses to demand one.” Id., ¶73 (emphasis added). It reiterated that instruction at the
beginning and end of its decision, stating, “[W]e reverse and remand to the
circuit court for a new fact-finding hearing to be heard by a jury if [the mother] timely demands one.” Id., ¶¶4, 75 (emphasis added).
¶14 While
the facts in Mable K. are substantively different from those before us,
including the fact that the mother there never waived her right to a jury as
Roberta did here, we find it noteworthy that the court, aware that the mother
had already properly demanded a jury for the original fact-finding hearing, did
not consider that jury demand to remain effective upon remand. Rather, the court expressly stated that the
mother would need to again demand a jury if she desired one for the new fact-finding
hearing. See id. This appears consistent with Tesky,
which instructs that “[t]he manner in which the right of a jury is exercised or waived is a matter of procedure” that is understood as referring
“to the trial then pending” and does not apply to future trials. Tesky, 110 Wis. 2d at 211 (emphasis
added; citations omitted). As with the Mable
K. mother’s prior jury demand, Roberta’s waiver, being a “matter of
procedure,” did not remain effective upon remand from the second appeal. Upon her proper demand for a jury for the
third fact-finding hearing,[6] Roberta
was entitled to a jury; and upon remand from this decision, she again will be
entitled to have the fourth fact-finding hearing heard by a jury if she
properly demands one.
¶15 Our
conclusion is further supported by an examination of one of the proof
requirements at issue here. Among other
elements the County must prove for Roberta to be found unfit on the continuing
CHIPS ground, it must prove there is a substantial likelihood Roberta will not
meet the conditions for the safe return of her children to the home within the
twelve-month period following the conclusion of the fact-finding hearing. See
Wis. Stat. § 48.415(2)(a)3.
(2003-04); Wis JI—Children 324. The jury instructions related to this element
clarify that the fact finder may consider all evidence bearing on this issue
since the filing of the petition(s), including evidence of events and conduct
occurring up to and during the time of the fact-finding hearing. Wis JI—Children
324. Thus, by its nature, this element (one
to which Roberta did not stipulate) is dynamic; the facts needed to prove it
depend upon when the fact-finding hearing is held because the period of time
the fact finder must necessarily consider will be different. For example, evidence the fact finder could
consider for Roberta’s second hearing included events and conduct occurring up
to and during that hearing, which was held in April 2010, while evidence the fact finder could consider at her
third hearing included events and conduct occurring through that hearing, which
was in June 2012, more than two years
later. Likewise, the twelve-month period
following Roberta’s second fact-finding hearing was April 2010 to April 2011,
while the twelve-month period following the third fact-finding hearing was
June 2012 to June 2013. Thus, for the
third, and now the fourth, fact-finding hearing, facts not existing at the time
of the second hearing could be relevant.[7] Simply put, at the time of her jury waiver
and elements stipulation, Roberta could not have anticipated what the evidence related to this element might be two and
one-half years later. Similar to Tesky,
where the proof required to answer a key question—vehicle ownership—changed
between the original trial and retrial, here, our reversal and remand due to
judicial bias in the second fact-finding hearing changed the proof required for
the third hearing. Thus, on remand for
that third hearing, fundamental fairness required that Roberta not be bound to
the jury waiver she executed in anticipation of the second hearing.
¶16 The
trial court indicated that its decision was based, at least in part, upon the
fact that the right to a jury at a fact-finding hearing is statutory,[8] not
constitutional. This distinction makes
no difference here. As previously
indicated, the waiver was a procedural move binding only upon the proceeding
pending at that time. See Tesky, 110 Wis. 2d at 211. Further, concerned that the remedy of simply
returning to the point in the proceedings when the error occurred improperly
took away the mother’s right to a jury, the Mable K. court expressly
fashioned its remedy to ensure a fair hearing on remand that “recognize[d] and
enforce[d]” this “statutory right.” Mable
K., 346 Wis. 2d 396, ¶¶65, 72.
Following the supreme court’s guidance, we consider a parent’s statutory
right to a jury at a fact-finding hearing to be a significant right and we
decline to hold that Roberta waived that right for future fact-finding hearings
absent an unambiguous declaration of her intent to do so.
¶17 While
the trial court’s ruling and the parties’ briefing on appeal almost exclusively
focused on the jury waiver issue, we nonetheless address the issue of Roberta’s
elements stipulation and conclude that this stipulation also did not survive
remand for a third fact-finding hearing.
The elements stipulation, like the jury waiver, was procedural and was
effective only for the fact-finding hearing pending at the time. See Tesky, 110 Wis. 2d at 211 (“[P]rocedural
stipulations ‘are always understood to have reference to the trial then pending,
and not as stipulations which shall bind at any future trial.’”); see also Paine v. Chicago & N. W. Ry. Co., 217 Wis. 601, 604-06, 258 N.W. 846 (1935). As with the jury waiver, the County has
identified no evidence in the record suggesting Roberta intended to stipulate
to the two continuing CHIPS elements for future fact-finding hearings. Accordingly, upon remand, Roberta is entitled
to have the County prove all four continuing CHIPS elements.
¶18 For
the foregoing reasons, we reverse and remand for a new fact-finding hearing on
all four continuing CHIPS elements to be heard by a jury if Roberta properly
demands one. The new hearing should be
held at the earliest reasonable opportunity.
By the Court.—Orders reversed and cause remanded with directions.
[1] This appeal was converted from a one-judge appeal to a three-judge appeal under Wis. Stat. Rule 809.41(3) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] Though
Walworth County filed separate petitions for Dorraj J. J. and Exsavon A. J.,
both petitions were addressed together at the fact-finding hearings.
[3] The decisions from her two prior appeals can be found at Walworth County DHHS v. Roberta W., Nos. 2008AP1236/2008AP1237, unpublished slip op. (WI App Nov. 12, 2008), and Walworth County DHHS v. Roberta J. W., Nos. 2010AP2248/2010AP2249, unpublished slip op. (WI App June 22, 2011).
[4] In so concluding, we based our decision on the unique facts of the case, including that the trial court could have simply reopened the case for the taking of additional evidence, leaving the waiver intact, rather than ordering a retrial. Tesky v. Tesky, 106 Wis. 2d 491, 495-96, 317 N.W.2d 172 (Ct. App. 1982).
[5] Indeed, it is hard to imagine Roberta waiving her right to a jury if she had any inclination the court would be biased against her at the hearing.
[6] None of the parties suggest Roberta failed to properly demand a jury for the third fact-finding hearing.
[7] For example,
some of the conditions for the safe return of the children required that
Roberta cooperate with psychological and psychiatric evaluations and follow
through with recommendations. Related to
this, testimony was presented at the second fact-finding hearing that Roberta
had started but dropped out of a “dialectical behavioral treatment” program. By contrast, at the third hearing, one of
Roberta’s Walworth County caseworkers testified that Roberta had successfully
completed that program.
[8] See Wis. Stat. §§ 48.31(2), 48.424(2).