Juveniles – TPR — waiver

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Wisconsin Court of Appeals

Civil

Juveniles – TPR — waiver

Although a parent waived her right to a jury trial and stipulated to two elements in a TPR proceeding, those waivers are not valid in a subsequent hearing, where the case was reversed and remanded by the Court of Appeals.

“The trial court indicated that its decision was based, at least in part, upon the fact that the right to a jury at a fact-finding hearing is statutory, not constitutional.  This distinction makes no difference here.  As previously indicated, the waiver was a procedural move binding only upon the proceeding pending at that time.  See Tesky, 110 Wis. 2d at 211.  Further, concerned that the remedy of simply returning to the point in the proceedings when the error occurred improperly took away the mother’s right to a jury, the Mable K. court expressly fashioned its remedy to ensure a fair hearing on remand that ‘recognize[d] and enforce[d]; this ‘statutory right.’  Mable K., 346 Wis. 2d 396, ¶¶65, 72.  Following the supreme court’s guidance, we consider a parent’s statutory right to a jury at a fact-finding hearing to be a significant right and we decline to hold that Roberta waived that right for future fact-finding hearings absent an unambiguous declaration of her intent to do so.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP2387 & 2012AP2338 Walworth County Department of Health and Human Services v. Roberta J.W.

Dist. II, Walworth County, Reddy, J., Gundrum, J.

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Snead, Michelle Marie, Elkhorn