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Court of Appeals Enforces Stipulation to Forgo Appeal in TPR Case; Denies Discretionary Reversal

Ronald J.R. v. Alexis L.A., 2013 WI App 79; case activity

This is an appeal from a partial summary judgment decision finding grounds to terminate Alexis L.A.’s parental rights.  The father, Ronald J.R., sought termination on two grounds and won summary judgment on the first one.  The parties then stipulated that Ronald would withdraw the second ground, if Alexis would agree not to appeal the partial summary judgment on the first ground.

After the circuit court terminated Alexis’s parental rights, she appealed the summary judgment decision, raising a novel constitutional issue that her trial lawyer had missed: “WIS. STAT.§ 48.415(4) is unconstitutional because it requires proof of notices given in dispositions, but not family court orders, before parental rights may be terminated. See Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, ¶¶7-9, 281 Wis. 2d 261, 697 N.W.2d 476.”  The trial lawyer testified that she was not aware of this argument and that if she had been, she would not have advised Alexis to enter into the stipulation.  Slip op., ¶6.

Stipulation Stands
Holding Alexis to the stipulation, the court of appeals dodged the constitutional issue.  It rejected the idea that the stipulation was involuntary because she did not understand the law in relation to the facts a la Waukesha Cnty v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607 (applying analysis from State v. Bangert to pleas in TPR cases).

¶10 But this is a civil case, not a criminal case. And although there are certain court-made protections in TPR cases that are similar to criminal procedure, we must pay serious attention to the long-standing case law concerning stipulations in civil cases. We have held in the past that parties may waive their right to appeal by entering into a stipulation.  (citations omitted).  See, e.g., Johnson, 191 Wis. 2d at 352 (upholding a stipulation that one party would not appeal in exchange for the other party agreeing not to seek costs); Auer Park Corp. v. Derynda, 230 Wis. 2d 317, 322, 601 N.W.2d 841 (Ct. App. 1999) (“A party to a civil case waives the right to appeal if he or she consents or stipulates to the entry of a judgment.”)

This seems like an over-simplification. TPRs are considered the family law equivalent of the death penalty in a criminal case. In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54. That’s why a parent facing a termination of his or her rights is entitled to counsel and other due process protections. The court of appeals acknowledges the special nature of the proceeding in footnote 3 of its decision but then declines to decide the issue because “Alexis has not argued that the special nature of terminations of parental rights should preclude our enforcement of the stipulation in this case . . .” The court also noted that “‘a party’s right to challenge the constitutionality of a statute can be waived by entering a plea of no contest'” in a TPR case, just as in a criminal case. See Kenosha Cnty. DHS v. Jodie W.,  2006 WI 93, ¶24, 293 Wis. 2d 530, 716 N.W.2d 845.”  Wait a sec.  Paragraph 24 of Jodie W. holds that an “as applied” challenge to the constitutionality of a statute can be waived by entering a plea of no contest, but the plea has to have been entered knowingly, intelligently and voluntarily, pursuant to Bangert. Is a stipulation to forgo an appeal the same as a “no contest” plea? If so, shouldn’t the court have explicitly applied a Bangert analysis?

Trial Court Properly Exercised Discretion

¶13 We now consider whether the trial court erroneously exercised its discretion when it upheld the stipulation. Before making its decision, the trial court held an evidentiary hearing where both Alexis and her trial attorney testified. At the conclusion, the court reasoned that Alexis’s decision to waive her right to appeal was knowing, intelligent, and voluntary despite her attorney’s failure to conceive of the constitutional arguments that her appellate attorney had lately unearthed. After reviewing the record, we agree.

¶14 . . . [T]he trial court conducted a thorough colloquy with Alexis, ascertaining she understood that she was giving up her right to appeal and that the finding of unfitness would stand. The court also asked whether she had reviewed the stipulation with her attorney and whether she was satisfied with her representation, both of which she answered affirmatively. Even at the hearing on her postdisposition motion, Alexis acknowledged that she knew the stipulation meant she would be found unfit and that she was agreeing not to appeal that decision.

“Interests of Justice” Reversal Denied

The court of appeals also rejected Alexis’ request for a reversal in the interests of justice:

¶15 . . .We decline to exercise that discretion here. In so doing, we note that the constitutional issue—based on Alexis not receiving warnings about the possible consequences of the family court order, which she would have received had the underlying litigation been a CHIPS proceeding—has little to do with the real facts behind the termination, which is Alexis’s failure to manage her long-standing drug addiction in order to make herself available to her child.

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