C.K.’s argues she should get a new TPR trial because the circuit court erred by deciding an element of the grounds allegations without getting her personal waiver of the right to have the jury decide the element and by admitting evidence about drug activity at her home. The court of appeals rejects her claims.
The TPR petition alleged both continuing CHIPS, § 48.415(2), and failure to assume parental responsibility, § 48.415(6), as grounds for termination. At a pretrial hearing C.K. didn’t attend her lawyer stipulated to the first element of the continuing CHIPS ground—that the children had been adjudged to be in need of protection or services and placed outside the home for a period of six months or longer a court order containing the required termination of parental rights notice. The trial court declined to conduct a colloquy with C.K. about stipulating to the element because TPRs are civil, not criminal; but at the pretrial hearing the court confirmed with trial counsel that he discussed the element with C.K., and at the instructions conference the court reconfirmed with counsel and C.K. herself that they stipulated to that element. (¶¶3, 6-7).
The supreme court has “urge[d] … circuit courts in TPR proceedings [to] consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary.” Walworth County D.H.H.S. v. Andrea L.O., 2008 WI 46, ¶¶30, 55, 309 Wis. 2d 161, 749 N.W.2d 168. However, the lack of a colloquy was not reversible error in Andrea L.O. because the evidence supporting the element was undisputed and indisputable. Id., ¶¶50, 57-58. By contrast, Manitowoc County H.S.D. v. Allen J., 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842, ordered a new trial because there was no colloquy regarding a stipulation to the first element of a continuing CHIPS verdict, the parent never agreed to stipulate on the record, and the CHIPS order wasn’t admitted into evidence.
The court of appeals concludes C.K.’s case is indistinguishable from Andrea L.O.:
¶14 …. The stipulation here was on the same “paper element” as in Andrea L.O., one that was expressly provable and readily verifiable by official documentary evidence. Andrea L.O., 309 Wis. 2d 161, ¶¶4, 41. Like the order in Andrea L.O., and unlike that in Allen J., the CHIPS orders here were entered into evidence, appended with the statutorily required notice, and the jury also heard uncontroverted testimony that the children had been removed from the home under an effective court order since December 2014, at least nine months before the TPR petitions were filed on October 8, 2015, and eighteen months before the trial. See Allen J., 314 Wis. 2d 100, ¶¶14-15; Andrea L.O., 309 Wis. 2d 161, ¶¶11, 58. Additionally, C.K. affirmed on the record, after testimony had been taken on the element, that she had discussed and approved the stipulation. See Andrea L.O., 309 Wis. 2d 161, ¶¶34, 58.
C.K. also argues the trial court erred in allowing improper other-acts evidence in the form of a sheriff’s deputy’s testimony about a controlled drug buy at, and drugs and paraphernalia found within, the home C.K. shared with the children’s father. The court of appeals disagrees:
¶25 …. [Deputy] Kuffel’s testimony was not impermissible “other acts” evidence subject to Wis. Stat. § 904.04(2) because whether a parent has been convicted of drug crimes or otherwise engages in drug trafficking in his or her home—thus exposing his or her children to such activity—goes to “opportunity” under § 904.04(2) to establish a substantial parental relationship. See State v. Quinsanna D., 2002 WI App 318, ¶¶26, 32, 259 Wis. 2d 429, 655 N.W.2d 752. Under Wis. Stat. § 48.415(6)(b), a “substantial parental relationship” is defined as “the acceptance and exercise of significant responsibility for the child’s daily supervision, education, protection, and care.” This standard requires the factfinder to consider the “totality-of-the-circumstances,” which covers the entire life of the child rather than a limited period of time. Tammy W-G. v. Jacob T., 2011 WI 30, ¶¶28-30, 333 Wis. 2d 273, 797 N.W.2d 854. A fact-finder may also look to the quality of care and whether the child was exposed to a “hazardous living environment” during a parent’s supervision of the child. Id., ¶37.
¶26 C.K. claims Kuffel’s testimony was improperly attributed to C.K., rather than the father. However, C.K. shared the residence with the father at that point, and she was present when Kuffel searched the residence. Again, C.K. testified she actively participated as the “middleman” in methamphetamine dealing that occurred in her home, behavior which led directly to both the CHIPS and TPR proceedings. The fact that C.K.’s conduct did not result in a criminal conviction, as it did for the parent in Quinsanna D., does not detract from its relevance here. See Quinsanna D., 259 Wis. 2d 429, ¶¶10, 26.
¶27 …. The court also properly weighed the potential for unfair prejudice against the testimony’s probative value in admitting it at trial. …. Certainly, Kuffel’s testimony was not beneficial to C.K. As the circuit court correctly recognized, however, the living conditions of C.K.’s home were indicative of lacking parental qualities, relevant to Wis. Stat. § 48.415(6), and were not “horrific” to the point of outweighing any probative value or being unfairly prejudicial. ….