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TPR–stipulation to element and effect on jury demand

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

Issue/Holding: Stipulation to a TPR elements did not constitute withdrawal of the demand for a jury trial, where the element was submitted to, and found by, the jury under the instructions and special verdict form, ¶¶18-24.

The court approvingly analogizes to State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999) (stipulation to burglary element of nonconsent didn’t amount to waiver of right to jury determination of the element where jury instructed to accept any stipulation as conclusively proven, but also instructed that guilt required finding nonconsent beyond a reasonable doubt).

Issue: Whether stipulation to a TPR element amounted to withdrawal of jury demand such that personal colloquy with the parent was necessary to effectuate the stipulation.


¶34 Although N.E. and S.B. concern withdrawal of the demand for a jury trial, they are distinguishable from the facts presented here. In each of those cases, a party’s attorney withdrew a prior demand for a jury trial while the defendant was not present. In N.E., the attorney did not consult with the juvenile before withdrawing the demand, and in S.B., the attorney withdrew the demand without S.B.’s knowledge or consent. Here, however, the stipulation between the parties took place in Andrea’s presence. Moreover, Andrea’s attorney asked her in open court whether she understood the issue and whether she was willing to stipulate that Junior was adjudged in need of protection or services and that he had been placed out of her home for six months or more. Andrea answered yes.

¶35 A second important difference between the present case and N.E. and S.B. is that this case does not involve a complete withdrawal of the demand for a jury trial. The parties agreed to stipulate to one element of the ground for termination, but the demand for a jury trial on the other three elements was unaffected. Importantly, Andrea’s focus in the case was not on the first element. Her attorney admitted that the first element was “not seriously in dispute.” Rather, he explained that the focus was on the fourth element, that is, whether there was a substantial likelihood that Andrea would not meet the conditions for return within a year. In contrast, N.E. and S.B. involved the withdrawal of the demand for a jury trial on all elements, rather than a stipulation regarding a single element that was not in dispute.

The court also stresses, ¶¶34-41, that the stipulation was not only on an uncontested point but a “paper ground,” that is, “expressly provable by official documentary evidence.” The court rejects any suggestion, though, that the holding “allows circuit courts to decide paper elements that go to a jury independent of a stipulation,” ¶41 n. 6. When all is said and done, the following factors seem to inform the result: the stipulation addressed a “paper element,” ¶46; TPRs being civil, the right to jury is purely statutory, ¶ 47; any error in removing the element form jury consideration would have been harmless, ¶48; in any event, the element in question was submitted to the jury, ¶53. The case, then, appears to be fact-specific, as the court indeed suggests:

¶51 We do not decide, however, the effect of Villareal and Hauk beyond the facts presented here. Thus, we do not address how courts should use criminal cases involving stipulations to shape decisions concerning stipulations in TPR proceedings.

¶55 Nonetheless, while we do not require it, we urge that circuit courts in TPR proceedings consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Although no personal colloquy is required here because Andrea received a jury trial, we have not addressed whether it would be required in other contexts.

¶56 Termination of parental rights proceedings are “among the most severe forms of state action” that involve the “‘awesome authority of the State to destroy permanently all legal recognition.'” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996). We have previously determined that such proceedings may “require heightened legal safeguards against erroneous decisions.” Oneida County Dep’t of Soc. Servs. v. Nicole W., 2007 WI 30, ¶32, 299 Wis. 2d 637, 728 N.W.2d 652 (quoting Evelyn C.R., 246 Wis. 2d 1, ¶21)).

The court thus explicitly declines to address the “broad question posed by the court of appeals” in its certification request, which is as follows (¶¶27-28): <“Does the rationale and holding of N.E. v. DHSS, a juvenile case arising out of Wis. Stat. ch. 48 (2003-04), govern a termination of parental rights (TPR) case such that a parent must personally withdraw his or her prior demand for a jury

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