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TPR – Stipulated Element

Florence County Dept. of Human Services v. Edward S., Jr., 2011AP385, District 3, 6/28/11

court of appeals decision (1-judge, not for publication); for Edward S.: Leonard D. Kachinsky; case activity

Counsel’s stipulation without the parent’s on-record assent to the first element of TPR grounds (child placed outside home at least 6 months under CHIPS order) didn’t deprive parent of his right to jury trial. Walworth County DHHS v. Andrea L.O., 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 169, followedManitowoc County HSD v. Allen J., 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842, distinguished.

¶17      We determine the factual situation presented in this case more closely resembles the situation presented in Andrea L.O. Similar to the jury in Andrea L.O., the jury in the present case heard uncontroverted testimony about the existence of the order, the length of time Joseph had been removed from the home, and Edward’s concession that he was warned his rights would be terminated if he did not participate in the court-ordered services.  The court also instructed the jury on the element, told the jury that the element was not disputed, and explained it was going to answer the first special verdict question.  Similar to the jury in Andrea L.O., the jury here still answered the first special verdict question by circling “yes” on the verdict form.  We conclude that, regardless of any stipulation, Edward received a jury trial on the first element because “the jury was presented with ample evidence of the element, was instructed on the element, and answered a verdict question on that element.”  See Andrea L.O., 309 Wis. 2d 161, ¶57.

Moreover, any error in removing this element from jury consideration was harmless, because “the uncontroverted evidence” established the element, ¶¶18-20.

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