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TPR: Waiver of jury and stipulation to elements doesn’t survive subsequent appeal, reversal, and remand

Walworth County DH&HS v. Roberta J.W., 2013 WI App 102; consolidated case activity: 2012AP2387; 2012AP2388 

The County petitioned to terminate Roberta’s parental rights in 2007 on the grounds her children were in continuing need of protection and services. After a jury trial and dispositional hearing her rights were terminated, but on appeal the termination order was reversed and remanded for a new fact-finding hearing. (¶4). Before the second hearing Roberta waived a jury and stipulated to two of the four continuing CHIPS elements; at the conclusion of the second fact-finding hearing and dispositional hearing, the court again terminated Roberta’s parental rights. That order was also reversed on appeal, and the case was remanded for a third fact-finding hearing. (¶5). Before the third fact-finding hearing Roberta requested a jury and demanded the County prove all four elements. The circuit court denied her requests, holding her to her previous jury waiver and elements stipulation. (¶6).

The court of appeals reverses, relying (¶¶8-10) on Tesky v. Tesky, 110 Wis. 2d 205, 209-11, 327 N.W.2d 706 (1983), which held that “waiving a jury trial is a procedural stipulation, rather than a contractual one … [and] procedural stipulations ‘are always understood to have reference to the trial then pending, and not as stipulations which shall bind at any future trial.'”

¶11      “[W]aiver is the intentional relinquishment or abandonment of a known right.” State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (citation omitted). Related to this, the Tesky court concluded: “If we are to say that the right waived must be an existing one, or even one reasonably anticipated, then this waiver cannot be effective, as a right to a new trial was not existent or reasonably anticipated.” Tesky, 110 Wis. 2d at 212 (citations omitted). Here, at the time of Roberta’s jury waiver and elements stipulation before the second fact-finding hearing, Roberta did not yet have a right to a third fact-finding hearing, nor could she have reasonably anticipated the trial court would exercise judicial bias in the second hearing, thereby necessitating a third hearing…. The County has identified no evidence in the record suggesting Roberta intended to waive her right to a jury for fact-finding hearings beyond the one pending at the time of her waiver. We conclude that, absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time it is made. See [United States v.] Lee, 539 F.2d [606,] 608-09 [6th Cir. 1976)] (“Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal.”).

The court also finds support for its holding in Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶¶4, 73, 75, 346 Wis. 2d 396, 828 N.W.2d 198, which in remanding a TPR case for a new trial expressly stated that the parent would need to demand a jury if she wanted on for the new hearing. “As with the Mable K. mother’s prior jury demand, Roberta’s waiver, being a ‘matter of procedure,’ did not remain effective upon remand from the second appeal.  Upon her proper demand for a jury for the third fact-finding hearing,.. Roberta was entitled to a jury; and upon remand from this decision, she again will be entitled to have the fourth fact-finding hearing heard by a jury if she properly demands one.” (¶14). And, the court holds, the circuit court’s distinction between statutory and constitutional rights to a jury “makes no difference here” to the jury waiver being a procedural move affecting only the proceeding pending at the time. (¶16).

Finally, Roberta’s elements stipulation did not survive remand for a third fact-finding hearing. That stipulation, like the jury waiver, “was procedural and was effective only for the fact-finding hearing pending at the time” and, also like the jury waiver, “the County has identified no evidence in the record suggesting Roberta intended to stipulate to the two continuing CHIPS elements for future fact-finding hearings.  Accordingly, upon remand, Roberta is entitled to have the County prove all four continuing CHIPS elements.” (¶17).

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