Steven v. v. Kelley H.

DAVID T. PROSSER, J.

(dissenting).

¶ 63. Last term I expressed concern that summary judgments *36were eating into the constitutional right of trial by jury in civil cases. Trinity Evangelical v. Tower Ins. Co., 2003 WI 46, ¶¶ 71-86, 261 Wis. 2d 333, 661 N.W.2d 789 (Prosser, J., dissenting). The decision prompting this concern involved an insurance company that was accused of acting in bad faith toward its insured. The circuit court granted summary judgment to the insured, finding that the insurer was liable to the insured as a matter of law. The court found that every element of the tort of bad faith was established beyond dispute without the need for a trial. Thus, the court denied the insurer the right to a jury's determination of the facts, reserving for jury determination only the issue of damages. After receiving the court's instructions, the jury awarded the insured the staggering sum of $3.5 million in punitive damages. This court upheld the award and all the procedures leading up to it.

¶ 64. The present case heightens my apprehension because it involves more than a suit among private parties over money. It involves a government effort to terminate a mother's rights to her child. The type of proceeding, the nature of the parties, and the potential stakes all are different. Once again, however, this court strips a defendant of the right of trial by jury — this time, a right granted by statute — by asserting that there is simply no disputed issue of fact for a jury to decide. As the court sees it, convening an "expensive and time-consuming" jury of citizens from the community to assess whether a mother is "unfit," before the judge decides whether to terminate her parental rights, would serve no purpose. See Majority op., ¶ 43. In short, a jury trial would be "pointless." Id.

¶ 65. The founders of our Nation believed that "trial of fact by juries rather than by judges was an essential bulwark of civil liberty." Galloway v. United *37States, 319 U.S. 372, 397 (1943) (Black, J., dissenting).1 Justice Black anticipated the tension in this case when he observed that either a judge or a jury must decide facts and "to the extent that we [in the judiciary] take this responsibility, we lessen the jury function." Id. at 407. The judicial duty to preserve the right of trial by jury "may be peculiarly difficult, for here it is our own power which we must restrain." Id.

¶ 66. The majority opinion speaks of the low risk of error in some judicial fact-finding and the "complete waste of judicial resources" in the jury trial requested here. Majority op., ¶¶ 42-43. But it fails to recognize that trial by jury is intended to protect civil litigants from overreaching and abuse by officials in all three branches of government, not just the judiciary. The American jury represents a classic check on government power. Hence, "the jury is not controlling merely the immediate case before it, but the host of cases not before it which are destined to be disposed of by the pre-trial process.... [T]he jury, like the visible cap of an iceberg, exposes but a fraction of its true volume." Harry Kalven, Jr. & Hans Zeisel, The American Jury, 31-32 (1966).

¶ 67. The decision in this case undermines a basic right crafted by the legislature. In curtailing this right, the court will impact the dynamics of termination proceedings in ways that are not yet fully apparent.2 It *38may impair the legitimate interests of parents and complicate the operation of the termination law. Because I believe the court is making a serious mistake, I respectfully dissent.

i — i

¶ 68. Chapter 48 — the Children's Code— addresses a wide range of matters affecting children. In the subchapter on procedure, Wis. Stat. § 48.31 establishes fact-finding hearings (1) to determine if the allegations in a petition for children alleged to be in need of protection or services under Wis. Stat. § 48.13 are proved by clear and convincing evidence; (2) to determine if the allegations in a petition for unborn children alleged to be in need of protection or services under Wis. Stat. § 48.133 are proved by clear and convincing evidence; and (3) to determine if the allegations in a petition to terminate parental rights are proved by clear and convincing evidence.

¶ 69. Subsection (2) of § 48.31 then reads:

(2) The hearing shall be to the court unless the child, the child's parent, guardian, or legal custodian, the unborn child by the unborn child's guardian ad litem, or the expectant mother of the unborn child exercises the right to a jury trial by demanding a jury trial at any time before or during the plea hearing.

Wis. Stat. § 48.31(2) (emphasis added).

¶ 70. This provision permits either a parent or a child or a child's representative to demand a jury trial in a termination proceeding. The legislature's intent in § 48.31(2) is reinforced in Wis. Stat. § 48.422(4), which *39reads: "Any party who is necessary to the proceeding or whose rights may be affected by an order terminating parental rights shall he granted a jury trial upon request if the request is made before the end of the initial hearing on the petition." Wis. Stat. § 48.422(4) (emphasis added). The circuit court is required to inform the parties of this right. Wis. Stat. § 48.422(1).

¶ 71. Subsection (2) of § 48.31 continues:

If a jury trial is demanded in a proceeding under s. 48.13 or 48.133, the jury shall consist of 6 persons. If a jury trial is demanded in a proceeding under s. 48.42 [petition for termination of parental rights], the jury shall consist of 12 persons unless the parties agree to a lesser number.

¶ 72. This language makes plain that while the legislature considers each of the three fact-finding hearings significant, it considers the fact-finding hearing on a termination petition to be more significant than a hearing under § 48.13 because the jury in the termination hearing is a jury of 12 persons, not 6 persons.

¶ 73. Subsection (2) adds that "At the conclusion of the hearing, the court or jury shall make a determination of the facts ...." Subsection (4) of § 48.31 thereafter provides:

The court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of a petition filed under s. 48.13, 48.133 or 48.42, except that the court shall make findings of fact relating to whether the child or unborn child is in need of protection or services which can be ordered by the court.

The jury's fact-finding duties are also alluded to in Wis. Stat. §§ 48.415 (introduction) and 48.424(3) and (4).

*40¶ 74. Subsection (4) of § 48.31 and subsection (3) of § 48.424 outline situations in which the court plays an exclusive role in termination proceedings. Judicial authority to deny a party a jury trial because the court believes that grounds exist for a partial summary judgment is not mentioned in these statutes.

¶ 75. The legislature's intent in these statutes is not ambiguous. The legislature intends to afford affected parties in termination cases the same right to a jury trial as defendants in criminal cases. The fact that parents may demand a jury trial on the issue of their "fitness" does not mean that they will always exercise this right. It means that officials seeking termination are likely to be more cautious in their approach and more thorough in making the case than they would be if they didn't have to deal with people who are not part of the courthouse establishment.

II

¶ 76. Jury trials in Wisconsin child custody cases date back more than a century. See Chapter 90, Laws of 1901 ("An act to regulate the treatment and control of dependent, neglected and delinquent children in counties having over one hundred and fifty thousand population."). After defining "dependent child," "neglected child," and "delinquent child" in Section 1, the legislature asserted in Section 2 that:

In all trials under this act of any dependent or delinquent child, any person interested therein may demand a jury of six, or the judge of his own motion may order a jury of the same number to try the case. Such jury when demanded or ordered shall be obtained in the manner provided in chapter 194 of the Wisconsin statutes of 1898 and the provisions of sections 4750 to *414758, both inclusive, of said chapter 194, shall be applicable to all such trials.

§ 2, ch. 90, Laws of 1901.

¶ 77. This early provision evolved over time. Since 1901, however, our legislature has always conferred a right to demand trial by jury in certain cases involving the custody and control of children. Historically, this right predates the appearance of summary judgment in Wisconsin law.

¶ 78. The first summary judgment rule was adopted by Supreme Court Order in 1931. See In the Matter of the Promulgation of Rules Relating to Pleading, Practice and Procedure in the Courts of the State of Wisconsin, 204 Wis. viii, creating Wis. Stat. § 270.635. This rule was quite limited in scope. Some 45 years later, on January 1,1976, this court replaced a modified § 270.635 with Wis. Stat. § 802.08, as part of the Wisconsin Rules of Civil Procedure. 67 Wis. 2d 585, 630-31 (1975).

¶ 79. As part of the same rule-making process, the court adopted Wis. Stat. § 801.01(2), which read:

(2) Scope. The sections in this title govern procedure and practice in circuit and county courts of the state of Wisconsin in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. They shall be construed to secure the just, speedy and inexpensive determination of every action.

67 Wis. 2d at 588 (emphasis added). This latter provision is the court-made rule the majority relies on to apply^ summary judgment to § 48.31 fact-finding proceedings. Essentially, the majority is saying that the civil procedure code, including summary judgment, *42applies to all civil actions except those for which a different procedure is prescribed by statute. A proceeding to establish a ground for termination in a TPR case is a civil action, and it does not prescribe an exception for summary judgment. Therefore, summary judgment applies in a proceeding to establish a ground for termination of parental rights.

¶ 80. There are several difficulties with this conclusion. First, because Wis. Stat. §§ 48.31(2) and 48.422(4) establish a right to demand a trial by jury, they arguably prescribe, "by statute," "a different procedure" from summary judgment.

¶ 81. It must be acknowledged that Wis. Stat. § 805.01(2) also uses the word "demand" — any "party entitled to a trial by jury . . . may demand a trial in the mode to which entitled" — and this "demand" language has not prevented summary judgment in the typical civil case. However, the language in § 805.01 has a history very different from the language in Wis. Stat. § 48.31. The language in § 805.01 was lifted from Rule 38 of the Federal Rules of Civil Procedure, which was drafted long after the "demand" language in § 48.31(2). There is something quite disconcerting about borrowing the interpretation of one statute to nullify a longstanding right in another statute.

¶ 82. Second, the Judicial Council Committee's Note to Wis. Stat. § 801.01, prepared shortly before the rule's promulgation, offers an interpretation of the rule that is different from the interpretation provided by the majority. The Note explains that the statutes contained in chapters 801 through 807 are general in their application to civil actions and govern all matters of practice and procedure "except to the extent that contrary *43provisions otherwise provide." Wisconsin Rules of Civil Procedure, 67 Wis. 2d 589 (1976). Thus, the Note explains:

they are subject to the special rules applicable to actions affecting marriage under ch. 247, small claims actions under ch. 299, actions to recover forfeitures under ch. 288, illegitimacy proceedings under ch. 52, probate proceedings under chs. 851-879, provisional and extraordinary remedies under chs. 264-268 and any other special rule governing particular kinds of actions or special proceedings.

Id. (emphasis added).

¶ 83. The exceptions cited in the Judicial Council Committee's Note should be compared to the majority's analysis in ¶ 35, n.3.3 The chapter numbers have changed over the past quarter century but there is considerable overlap in the subject areas. Consequently, the-' majority's analysis appears to conflict with the Judicial Council Committee's Note.

¶ 84. Chapter 48 proceedings are not specifically mentioned in the Judicial Council Committee's Note. However, fact-finding proceedings under Chapter 48— which at the time of adoption of the Wisconsin Rules of Civil Procedure included proceedings to determine "delinquency" — obviously have special rules. Juvenile *44delinquency proceedings and termination proceedings are "special proceedings."4 They are not the same as general civil actions and thus implicate "any other special rule governing particular kinds of actions." Wisconsin Rules of Civil Procedure, 67 Wis. 2d 589.

¶ 85. Finally, this court adopted Wis. Stat. §§ 801.01 (scope of chs. 801-847) and 802.08 (summary judgment) "pursuant to its inherent authority and sec. 251.18, Stats." Preface to Wisconsin Rules of Civil Procedure, 67 Wis. 2d 585. Wisconsin Stat. § 251.18 in 1975 and Wis. Stat. § 751.12 now are the statutes that have authorized this court to promulgate rules of pleading, practice, and procedure. They both contain the admonition that court-made rules "shall not abridge, enlarge, or modify the substantive rights of any litigant." This raises the question whether a legislatively conferred right of trial by jury is a substantive right. If it is, then this court may not abridge that right by rule. If it is not, then this court has been given the awesome power to abolish the right of trial by jury by rule in any situation in which the right is not protected by the state or federal constitution.

¶ 86. It would be ill advised for this court to embrace the premise that its court-made rule wipes out an unconditional legislatively established right of trial by jury in termination cases whenever a judge finds that there is no issue of material fact concerning an alleged statutory ground for termination. Arguably, the legislature authorized a jury to determine whether a *45statutory ground for unfitness exists so that no judge could unilaterally terminate a parent's rights.

H — Í I — I H-i

¶ 87. The majority opinion minimizes my concern that the statutory right of jury trial in termination cases has been impaired by emphasizing that summary judgments are available only "where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31 have been met." Majority op., ¶ 5. "Accordingly, partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, and ... the moving party is entitled to judgment as a mater of law." Id., ¶ 6.

¶ 88. The majority explains that there are now 12 grounds of unfitness in § 48.415 for the termination of parental rights, "and several of these may be proved by official documentary evidence." Id., ¶ 3. The majority cites the following:

a. 48.415(lm) — relinquishment;
b. 48.415(4) — continuing denial of periods of physical placement or visitation;
c. 48.415(8) — homicide or solicitation to commit homicide of parent;
d. 48.415(9) — parenthood as a result of sexual assault;
e. 48.415(9m) — commission of serious felony against one of the person's children;
*46f. 48.415(10) — prior involuntary termination of parental rights to another child.

Id., ¶ 37.

¶ 89. Significantly, the court has listed half the grounds of unfitness as being subject to potential summary judgment because they may be proved by official documentary evidence. However, in some cases, child abuse under § 48.415(5) and incestuous parenthood under § 48.415(7) may also be proved by documentary evidence.5 Therefore, at least two-thirds of the grounds of unfitness may be determined without a jury trial. In fact, the majority implies that summary judgment may be granted, where appropriate, on a case-by-case basis, irrespective of the grounds. Majority op., ¶ 37, n.4. It overrules Walworth County Department of Human Services v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), a case in which the court of appeals disapproved summary judgment for the grounds of abandonment and continuing need of protection or services, neither of which is a candidate for summary judgment on the majority's list.

¶ 90. One consequence of this is that the party initially petitioning for termination of parental rights —sometimes the child's other parent — may deliberately choose a ground of unfitness that will maximize the chances of avoiding a jury trial.

¶ 91. This is not the only problem the court has created. A termination of parental rights proceeding is frequently preceded by a CHIPS proceeding pursuant *47to Wis. Stat. § 48.13 as well as a disposition hearing under Wis. Stat. § 48.335. At the CHIPS fact-finding hearing, the parent is entitled to a jury trial. Wis. Stat. § 48.243(l)(g). Often, however, the parent does not contest the child's need for protection or services because the parent is overwhelmed with personal problems and needs time to recover. Now, however, because failure to contest a petition at the CHIPS fact-finding hearing may eliminate the chance for a parent ever to present testimonial evidence on the issue of the parent's unfitness, there will be an incentive for the parent to contest the initial CHIPS proceeding. In any event, the court may employ summary judgment at the CHIPS fact-finding hearing. N.Q. v. Milwaukee County Dep't of Social Servs., 162 Wis. 2d 607, 611-12, 470 N.W.2d 1 (1991).

¶ 92. At the CHIPS disposition hearing, there is no requirement of proof by clear and convincing evidence. S.D.S. and K.A.S. v. Rock County Dep't of Soc. Services, 152 Wis. 2d 345, 356-57, 448 N.W.2d 282 (Ct. App. 1989). Rather, because CHIPS dispositional hearings "emphasize the child's future well-being and family values, not culpability," the greater weight of the credible evidence standard applies. Id. at 357.

¶ 93. What this means is that the predicate fact-finding leading up to an involuntary termination proceeding may be based upon a waiver, or summary judgment, or a reduced burden of proof.

¶- 94. In this case, a judge in Brown County conducted a CHIPS fact-finding hearing and a CHIPS dispositional hearing. The dispositional hearing had a reduced burden of proof. The child's father later petitioned in Grant County for a termination of the mother's rights on the ground set out in § 48.415(4) *48(continuing denial of periods of physical placement or visitation). Subsection (4) reads:

(4) Continuing Denial of Periods of Physical Placement or Visitation. Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2).
(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

Wis. Stat. § 48.415(4) (emphasis added). Wisconsin Stat. §§ 48.345, 48.363, and 48.365 involve disposi-tional hearings with a reduced burden of proof.

¶ 95. In this case, Kelley H. was denied physical placement and denied visitation of her son by court order. At least one year elapsed from the date the order was issued and the court had not modified the order so as to permit periods of physical placement or visitation.

¶ 96. The Grant County Circuit Court would not permit Kelley H. to explain, at the fact-finding hearing on unfitness, why at least one year had elapsed since the order denying periods of physical placement or visitation was issued and why the court had not subsequently modified its order so as to permit periods of physical placement or visitation. That evidence could ot come in, the court said, until the dispositional earing. See Majority op., ¶¶ 15-16. This court affirms *49that ruling. As a practical matter, this court is saying that there are no facts — including a parent's serious illness, temporary incarceration, or involuntary absence from the jurisdiction, or a judge's illness or death — that will ever legally excuse a failure to modify the placement/visitation order within a year after it is issued. This strikes me as going well beyond what the court decided in Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶¶ 36-37, 255 Wis. 2d 170, 648 N.W.2d 402.

¶ 97. The legislature has established multiple legal grounds of parental unfitness that may serve as the foundation for a termination of parental rights. Wis. Stat. § 48.415(1)-(10). I agree that there are no "degrees of unfitness" under this statutory scheme. Majority op., ¶ 25. On the other hand, there may be "defenses" or "explanations" for some of these grounds that ought to be raised by the defendant for consideration by the fact-finder making the determination of unfitness, as opposed to the court determining the best interests of the child; for when the court considers the best interests of the child, the court's decision revolves around thé child, not the parent.6

*50¶ 98. In my view, depriving the fact-finder, especially a jury, of the full story before the fact-finder determines that grounds of unfitness exist, is not what the legislature intended. Depriving a parent of the right to the jury trial granted by statute is even worse. The right of trial by jury should not be granted by judges on a case-by-case basis, because the legislature conferred a blanket right. See Majority op., ¶ 37, n.4.

IV

¶ 99. As the majority correctly observes, few judicial decisions are as consequential as a termination of parental rights. Majority op., ¶ 21. A termination judgment severs permanently "the parent's interest in the companionship, care, custody, and management of his or her child," T.M.F. v. Children's Service Society, 112 Wis. 2d 180, 184, 332 N.W.2d 293 (1983), who is usually the parent's own flesh and blood. It is thus one of "the most severe forms of state action," M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996) (citing Santosky v. Kramer, 445 U.S. 745, 759 (1982)), invoking the outer reaches of governmental, power.

¶ 100. The Wisconsin legislature has recognized the vital stakes in a termination decision and established a balanced regimen to assure fairness to all concerned parties. Courts should resist the temptation to try to improve the process by modifying either the substance or procedures of the law. In doing so, they may inadvertently shortchange interests that the legislature sought to protect and unravel the entiré statutory scheme. I cannot agree that the majority has improved the process established by the legislature and thus, I respectfully dissent.

Justice Black quoted Thomas Jefferson as saying: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Galloway v. United States, 319 U.S. 372, 397 (quoting 3 Writings of Thomas Jefferson (Washington ed.) 71).

Chief Justice Abrahamson has removed any doubt about one of the ways the dynamics will change. Concurring op., ¶¶ 56-57. The judiciary's evisceration of the right of trial by *38jury will encourage parents to launch constitutional challenges against the termination statute.

The majority states in ¶ 35, n.3 that:

The general statutory civil jury trial right is contained in Wis. Stat. § 805.01, and several other statutes confer the right to a jury in specific types of cases. See, e.g., Wis. Stat. § 879.45 (probate code); Wis. Stat. § 767.50 (paternity); Wis. Stat. § 799.21 (small claims); Wis. Stat. § 345.43 (traffic code). No case has ever held that summary judgment procedure violates any of these statutory jury trial provisions (although it would be highly unusual for a party to attempt to invoke summary judgment in some of these very fact-intensive contexts).

In Lueptow v. Schraeder, 226 Wis. 437, 443-45, 277 N.W. 124 (1938), the court said: "The proceedings authorized by ch. 48, Stats., are new in this state.... In our view, [a delinquency] proceeding, strictly speaking, is neither a criminal nor a civil tion. It is a special proceeding with certain incidents common both civil and criminal actions." (Emphasis added.)

Initially, the circuit court granted summary judgment on incestuous parenthood grounds in Monroe County Department of Human Services v. Kelli B., 2003 WI App 88, ¶ 5, 263 Wis. 2d 413, 662 N.W.2d 360, aff'd 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831.

In her concurrence, the Chief Justice writes that Wis. Stat. § 48.424(4) does not permit a defendant to present a "defense" at the fact-finding hearing if there are undisputed facts to support one of the statutory grounds. Concurring op., ¶ 56.1 disagree. Wisconsin Stat. § 48.424(4) directs the court to "find the parent unfit" if grounds for the termination of parental rights are found. It does not prohibit a defendant from presenting a legal defense. A court has the right to determine whether there is a legal defense to a statutory grounds of unfitness, but the fact-finder should determine whether that defense has been established.