Manitowoc County HSD v. Allen J., 2008 WI App 137
¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon  and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied, but Allen argues that he did not personally agree to withdraw his jury demand on the element. We put this appeal on hold pending the supreme court’s resolution of Walworth County DHHS v. Andrea L.O., 2008 WI 46, __ Wis. 2d __, 749 N.W.2d 168. In that case, the supreme court held that the parties’ stipulation to one element of parental unfitness did not constitute a withdrawal of a jury trial demand because the jury, rather than the court, answered the verdict question and there was ample evidence to support the element. Id., ¶3. The court went on to hold that even if the stipulation had been a withdrawal of the jury trial demand on the element, it was not error for the circuit court not to hold a personal colloquy with the defendant where the defendant personally agreed to the stipulation in open court, the stipulation was to a single, undisputed, paper element, and there was ample uncontroverted evidence to support the stipulated element. Id., ¶4.
¶2 We now reverse and remand for a new trial. We conclude that the stark factual differences between this case and Andrea L.O. call for this result. First, here the court, not the jury, answered the verdict question on the stipulated element, and so, as Manitowoc County rightly concedes, Allen did not receive a jury trial on the issue. Thus, the dispositive question becomes whether it was error for the court to withdraw the element from the jury’s consideration. We conclude that it was because the crucial facts relied on by the Andrea L.O. court are missing here. At no time did Allen agree to the stipulation in open court. Second, though the element in consideration is a “paper” element, the required documentary evidence is missing from the record, and the evidence adduced is not so “ample” as to make the element “undisputed and undisputable.” We therefore also conclude that the court’s error was not harmless.