Walworth County Department of Health & Human Services v. Andrea L. O.

DAVID T. PROSSER, J.

¶ 59. (concurring). The Walworth County Department of Health and Human Services (County) filed a petition under Wis. Stat. § 48.42(1) to terminate the parental rights of Andrea L.O. (Andrea).

¶ 60. The County alleged that Andrea was an unfit parent because her son was in continuing need of protection or services. See Wis. Stat. § 48.415(2).

¶ 61. Andrea demanded a jury trial;1 and she received a jury trial that lasted four days.2 On August 3, 2006, a 12-person jury found that the County had established the statutory ground alleged in the termination of parental rights (TPR) petition.

¶ 62. In this appeal, Andrea contends that she is entitled to a new trial. She claims that a stipulation signed by her attorney, conceding one of the four elements of the ground that the County was required to prove, deprived her of a jury determination on that element, inasmuch as the court accepted the stipulation without engaging in a probing colloquy to determine whether Andrea personally, knowingly, and voluntarily waived her right to a jury trial on that element.

*184¶ 63. I concur in the majority's conclusion that the termination of Andrea's parental rights should be affirmed. I disagree, however, with some of the majority's analysis. There is a sound factual basis to support the conclusion that Andrea was accorded her full right to a jury trial. However the majority does not rest its decision solely on the facts. It relies on principles in Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, a case that explicitly approves the use of summary judgments in terminations of parental rights.

¶ 64. I am unable to reconcile the court's hand-wringing about whether a parent, represented by counsel, can agree to give up her right to have a jury determine an element that the County must prove at trial when the same court has vested circuit judges with the power to enter summary judgment against the parent in a termination case, thereby wiping out the parent's jury right entirely. In the majority's view, it makes no difference that the parent has demanded her right of jury trial and objected strenuously to summary judgment. In addition, I am disturbed that the court is extending the Kelley H. decision by giving circuit judges the authority to decide "paper" elements in cases that do go to a jury, irrespective of whether there is a stipulation by or on behalf of the parent. Majority op., ¶¶ 4, 41, 58.

¶ 65. My views on a parent's right to a jury trial in termination of parental rights cases were initially expressed in my Kelley H. dissent. Kelley H., 271 Wis. 2d 1, ¶¶ 63-100 (Prosser, J., dissenting).

¶ 66. The majority in Kelley H. declared that any right to trial by jury in the fact-finding phase of a termination case is statutory, not constitutional. Id., ¶¶ 41, 44. That conclusion is reasserted here. Majority op., ¶ 29. Yet there has never been a serious analysis *185whether Article I, Section 5 of the Wisconsin Constitution affords this right in termination cases. Moreover, the way the majority analyzes the law, it would appear to make no difference whether the right is constitutional or statutory because the summary judgment provisions of Wis. Stat. § 802.08 are applied regularly in civil cases in which the right of trial by jury under the state constitution is beyond dispute.

¶ 67. Scholarship on this subject is urgently needed,3 because Kelley H. and this case provide a chilling picture of future trends.

A. Wisconsin Stat. § 802.08(1) provides that "A party may ... move for summary judgment on any claim ... which is asserted by ... the party." (Emphasis added.)

B. "The jury trial right... is entirely statutory, not mandated by constitutional due process, and is therefore generally subject to the provisions of the civil procedure code, including the summary judgment statute, Wis. Stat. § 802.08, unless the TPR statutes provide otherwise. See Wis. Stat. § 801.01(2). The TPR statutes do not provide otherwise, either explicitly or implicitly." Kelley H., 271 Wis. 2d 1, ¶ 4.

C. The Kelley H. majority held that

partial summary judgment in the unfitness phase of a TPR case is available where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31 have been met.. . .
*186Accordingly, 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.

Id., ¶¶ 5-6.

D. The Kelley H. majority gave examples:

Some statutory grounds for unfitness . .. are expressly provable by official documentary evidence, such as court orders or judgments of conviction. See Wis. Stat. § 48.415(lm) (relinquishment, provable by court order); Wis. Stat. § 48.415(4) (continuing denial of periods of physical placement or visitation, provable by court order); Wis. Stat. § 48.415(8) (homicide or solicitation to commit homicide of parent, provable by judgment of conviction); Wis. Stat. § 48.415(9) (parenthood as a result of sexual assault, provable by judgment of conviction); Wis. Stat. § 48.415(9m) (commission of serious felony against one of the person's children, provable by judgment of conviction); Wis. Stat. § 48.415(10) (prior involuntary termination of parental rights to another child, provable by court order).

Kelley H., 271 Wis. 2d 1, ¶ 37.

E. "[I]n some cases, child abuse under § 48.415(5) and incestuous parenthood under § 48.415(7) may also be proved by documentary evidence." Kelley H., 271 Wis. 2d 1, ¶ 89 (Prosser, J., dissenting).

E The Kelley H. court overruled 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 circuit court entered summary judgment under abandonment, Wis. Stat. § 48.415(1), and continuing need of protection or services, Wis. Stat. § 48.415(2). The latter was the very ground at issue in this case.

*187G. The majority now gives the circuit court authority to decide at least one element of § 48.415(2) without a jury.

H. There are apparently no defenses to certain statutory grounds of unfitness. Kelley H., 271 Wis. 2d 1, ¶ 25; id.., ¶ 56 (Abrahamson, C.J., concurring).

I. Consequently, we see evidence of summary judgments or other judicial fact-finding in place of requested jury determinations in at. least 10 of the 12 grounds for termination of parental rights.

¶ 68. This court has not produced evidence that these developments were intended by the Wisconsin Legislature. The court has uncovered several constitutional problems with the legislature's TPR statutes, but I attribute some of these problems to this court's repeated refusal to apply the statutes. Accordingly, I concur.

See Wis. Stat. § 48.31(2).

Andrea's jury trial included a petition against the father of the child.

See, e.g., Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007) (citing numerous recent law review articles); Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 1074-1132 (2003).