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TPR – Removal of Element from Jury – Closing Argument, Misstatement, Interest of Justice

Florence County Department of Human Services v. Jennifer B., 2011AP88, District 3, 8/19/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, Shelley Fite, SPD, Madison Appellate; case activity

Removal from jury consideration of a ground for termination (CHIPS orders) without prior discussion between court and parties was error:

¶10      While we agree that a directed verdict is available in the grounds phase of a TPR proceeding, see Steven V., 271 Wis. 2d 1, ¶5, the County has provided no record citation showing it moved for and was granted a directed verdict.  Our review of the record reveals that while instructing the jury, the court informed it that the court had answered the first special verdict question.  The court should not have removed this element from the jury without any discussion between the parties.  See id.

¶11      Further, although it is not always error to remove an element from the jury’s consideration if the evidence is uncontroverted, see Walworth Cnty. DHHS v. Andrea L.O.2008 WI 46, ¶50, 309 Wis. 2d 161, 749 N.W.2d 168, we disagree with the County that the evidence showing Jennifer received the required warnings was indisputable.  Although the March 30, 2010 orders may have contained executed warnings,[2] the County overlooks that it petitioned to terminate Jennifer’s rights on January 12, 2010.  The County must warn a parent that their parental rights might be terminated before it petitions for termination.  See Waukesha Cnty. v. Steven H., 2000 WI 28, ¶3, 233 Wis. 2d 344, 607 N.W.2d 607  … [T]he evidence was not uncontroverted.  We conclude Jennifer was deprived of her right to a jury trial on the grounds of continuing protection or services.

The jury found two separate grounds in support of termination, and Jennifer B. therefore must attack the second ground (failure to assume parental responsibility) in order to obtain relief. She asserts that the County’s closing argument misstated the showing necessary to this ground, namely that the jury must “look at the here and now,” when the test actually requires scrutiny of the child’s “entire life.” The court agrees with her argument:

¶16      We conclude the County’s statement prevented the real controversy from being tried.  The County improperly intertwined the time periods that should be considered for the grounds of continuing protection or services and the grounds of failure to assume parental responsibility.  Although the jury was subsequently instructed on the law of the case, there was no curative instruction informing the jury that, for the failure to assume parental responsibility allegation, it needed to consider more than the “here and now”—specifically, it needed to consider the entire life of the child.  Given our supreme court’s recent determination that a jury needs to consider the entire life of the child when evaluating whether a parent has assumed parental responsibility, see Tammy W-G., 333 Wis. 2d 273, ¶3, we conclude that the County’s instruction to the jury to consider the “here and now” prevented the jury from fairly deciding the issue.

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