TPR – Waiver of jury trial; admission to “child abuse” and CHIPS grounds

Racine County v. Latanya D.K., 2013 WI App 28; case activity

TPR – Waiver of jury trial need not be part of admission colloquy

¶2        Latanya’s major arguments raise an important question:  Must the court engage in a personal colloquy with a parent regarding his or her waiver of the right to a jury trial before accepting the parent’s admission that grounds for termination of parental rights exist? We conclude that due process does not require that the court engage in a personal colloquy with the parent to confirm the parent’s waiver of the jury trial right on grounds for TPR.  Here, though the court did not personally ask Latanya whether she wished to waive her right to a jury trial, the record makes clear that Latanya did knowingly, intelligently, and voluntarily waive that right.  That is the benchmark….

Latanya’s second lawyer (appointed after the initial hearing) believed Latanya’s first lawyer had preserved her jury trial right under Wis. Stat. § 48.422 (¶19). (So, for awhile, did the judge, who had been substituted in; at a status conference with Latanya and her new lawyer the judge referred to her right to a jury trial (¶¶5, 18).) Based on that belief Latanya’s lawyer had “specific and detailed discussions” with her about a jury trial and, concerned about the potentially negative impact of a trial due to its focus on details of Latanya’s crimes, advised her to forego trial on the petition’s grounds; Latanya decided to follow her lawyer’s advice (¶19).

But at the hearing to enter her admission to the grounds, the court announced its belief that the jury trial right was already waived because  Latanya’s first lawyer failed to file a demand, with the result being the colloquy did not include questions about waiving a jury (¶20). There is no error in the colloquy, the court of appeals concludes, for both factual and legal reasons. First, the facts show Latanya had already been properly informed and had chosen to follow her attorney’s advice and waive a trial at which she thought she could have a jury. Second, there is no requirement that the judge’s colloquy cover the right to a jury trial:

¶21      [Latanya’s] arguments are also legally unpersuasive, because no provision of the federal or state constitutions nor Wis. Stat. § 48.422 mandates that a parent’s waiver of the right to a jury trial on the grounds must be on the record during a personal colloquy with the judge.  While our supreme court has imposed this pinnacle of procedural protection in criminal cases, Anderson, 249 Wis. 2d 586, ¶29, no such obligation has been imposed in TPR cases. See also Brenda B., 331 Wis. 2d 310, ¶¶45, 53 (rejecting arguments that a TPR plea colloquy was deficient because the court did not explain that the right to parent is “constitutional” and because the court failed to inform the parent of every possible disposition under Wis. Stat. § 48.427). We recognize that a personal colloquy concerning waiver of the jury trial right is a good idea in TPR proceedings and will often be a better way of recording a parent’s waiver of the jury trial right.  But we decline to impose it as an obligation.  The record here shows that Latanya was well informed about her right to a jury trial on the grounds for termination of her parental rights and made an intelligent and voluntary decision to waive it.

The waiver of a jury trial is not one of the topics a court must cover in when taking an admission under § 48.422(7), so the question decided here is whether there is some other basis for requiring the judge to address it. To the court the linchpin to this question is the statutory foundation for the right to a jury in TPR cases versus the constitutional foundation in criminal cases. While noting the fundamental constitutional right to parent and the requirement that termination comport with due process (¶12), the process due differs greatly (perhaps most notably in the availability of summary judgment in some TPR cases). Those differences, and the fact that Latanya was told—erroneously—she had a right to a jury and still decided to admit, dictate the result for the court.

Would the case be any different if Latanya had never known of her right to demand a jury? The court doesn’t answer that question, though it is posed by Latanya’s arguments (¶2 n.2) that her first lawyer should have told her about the right to demand a jury and should not have failed to make a timely demand without consulting her. (In addition, although it’s not clear from the opinion, it may be that the circuit court didn’t advise her of the jury right at the initial hearing, either, as required by § 48.422(1).) The court gives no more than passing attention to these claims, saying only that “Latanya’s argument … that she received ineffective assistance when her first attorney failed to demand a jury trial, is factually unpersuasive” (¶20)—presumably because there is no prejudice, given she believed she had the right to a jury and still agreed to enter an admission. The question of what counsel must advise a parent about the right to demand a jury will have to await another case.

TPR – Knowing and voluntary admission to “child abuse” ground

Rejecting challenge to admission to the existence of evidence establishing the “child abuse” ground for termination under Wis. Stat. § 48.415(5), because admission of conviction for child sexual assault constitutes admission to causing “injury” to a child and because there was a factual basis for finding a pattern of sexually abusive behavior that was a substantial threat to the health of her children (¶¶22-23).

Latanya’s young children were placed in foster care because Latanya, then 23, engaged in numerous sex acts with a 13-year-old neighbor boy. Latanya pleaded guilty to second-degree child sexual assault and child enticement for those acts. The victim’s younger brother also told investigators that he saw Latanya watching pornography while her children were present (¶3). These facts raise two questions about the applicability of the “child abuse” ground under § 48.415(5), which requires that a parent cause “injury” to a child (not necessarily her own), be convicted of a felony as a result of that “injury,” and exhibit a pattern of abusive behavior that substantially threatens the health of her own children.

The first question is whether second-degree child sexual assault necessarily causes “injury” to the victim. The court says it does, but with no real analysis of the term “injury,” which is not defined in ch. 48. Instead, the court relies on a case that allowed an insurer to deny coverage under an “intended harm” exclusion for an insured who pleaded guilty to sexual assault; specifically, it cites that case’s conclusion that sexual misconduct with a minor is “objectively so substantially certain to result in harm to the minor victim….” (¶22, citing N.N. v. Moraine Mut. Ins. Co., 153 Wis. 2d 84, 95, 450 N.W.2d 445 (1990)). But § 48.415(5) doesn’t say “substantially certain to result in harm”: it says “injury.” There may well be a definition of “injury” that supports the court’s conclusion, but the court’s analysis is cursory and unconvincing.

The second question involves the “pattern of sexually abusive behavior” that was a substantial threat to the health of her children. “Abuse” is defined in ch. 48 to include some of the sex crimes under ch. 948, so one might think “pattern of sexually abusive behavior” should be defined in reference to those acts. Once again, the court does not discuss that phrase or how its meaning. It simply says (¶23) the element is established because Latanya committed the assaults in the home when her children were there and because pornography was allegedly viewed in their presence, though it is not clear any of those acts fall under the specific crimes included as “abuse.” Again, the court’s conclusion might be legally and factually supportable, but the analysis doesn’t explain why.

TPR – Factual basis for admission to CHIPS ground

Rejecting attack on the factual basis for the CHIPS ground under Wis. Stat. § 48.415(2)(a), based on the record as a whole:

¶26      While Latanya is correct that the initial petition was devoid of the factual details to prove these elements, the record leaves no doubt that at the timeof her stipulation such facts existed and were known to her.  Additionally, reviewing the entire record and totality of circumstances in assessing whether a factual basis existed, see Steven H., 233 Wis. 2d  344, ¶¶59-60, we note that the parole officer’s testimony at the February hearing established that Latanya was unlikely to be able to provide a safe home for the children in the near future, not because of her incarceration, but because Latanya was angry and uncooperative with the officer’s efforts to help her plan her transition from prison in view of the applicable sex offender restrictions.