02-2860 In Re: the Termination of Parental Rights to Alexander V.

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The court further erred in this case by not advising petitioner at the initial hearing of her right to request a continuance to discuss with counsel substitution of the judge. However, this error also was harmless because petitioner knew of her right to request a substitution and had discussed it with counsel before the initial hearing.

“In contrast [to the case of abandonment in Elizabeth W., 189 Wis.2d, 432 (1995)]in this case the ground for abandonment depends upon proof of a court order denying periods of physical placement and the lapse of one year without a modification of that order, § 48.415(4), and it is difficult to envision factual disputes on these two elements. In any event, Kelley does not contend there is a factual dispute in this case. …

“We understand the trial court’s reasoning in this case-that it is a waste of time and resources to convene a jury to hear evidence on the elements of Wis. Stat. § 48.415(4) that will not be disputed and to then direct a verdict based on that evidence. However, we conclude that is what Elizabeth W. requires when a parent contests that ground and requests a jury trial under Wis. Stat. § 48.422(4). The arguments that this result is not required by statute or by the constitution must be directed to the supreme court. …

“Applying the harmless error analysis as articulated Evelyn C.R., we conclude the procedure used by the trial court to establish a ground for termination under Wis. Stat. § 48.415(4) was harmless error because there is no reasonable possibility that, had the court empanelled a jury to hear the evidence on the two elements, there would have been a different outcome.”

Order affirmed.

Recommended for publication in the official reports.

Dist IV, Grant County, Vandehey, J., Vergeront, P.J.

Attorneys:

For Appellant: Kelley L. Hauk, Green Bay; Philip J. Brehm, Janesville

For Respondent: Steven Vogt, Cassville; Duane M. Joregenson, Darlington