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Legislation proposes eliminating jury trials in children’s court

By: Eric Heisig//August 30, 2013//

Legislation proposes eliminating jury trials in children’s court

By: Eric Heisig//August 30, 2013//

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A divisive bill that would eliminate jury trials in protection and termination proceedings in children’s court – while at the same time appointing counsel to all parents who are going through the proceedings – may get a hearing this fall.

If passed, Assembly Bill 151 would re-appoint the State Public Defender’s office to represent parents in children’s protective-services cases; something the Legislature relieved it of doing in 1995. Public defenders currently represent parents who are in danger of losing their parental rights, but the responsibility for representation in protective-services cases falls to individual counties.

The bill also would eliminate a parent’s right to a jury trial in proceedings where a child is in need of protective services or parental rights are in question.

Wisconsin’s Joint Legislative Council proposed the bill, which was spearheaded by Rep. Samantha Kerkman, R-Powers Lake.

“I felt … that if we give counsel earlier in the process,” Kerkman said, “to help parents understand the system better and what they need to do to get their kids back, hopefully they wouldn’t get to the process where termination would happen.”

Kerkman said she planned to speak to Rep. Scott Krug, R-Nekoosa, chairman of the Legislature’s Committee on Children and Families, next week about scheduling a hearing on the bill this fall.

The bill’s potential for eliminating jury trials has raised concern, however.

The state Department of Children and Families, the agency that investigates and handles many protective-services cases, has said it will oppose the bill because the elimination of jury trials would take away needed hurdles to prove that a parent isn’t fit to raise a child.

The right to a jury trial “should be taken away only after all protections have been accorded the birth parent,” reads a Feb. 11 memorandum from DCF Secretary Eloise Anderson.

SPD spokesman Randy Kraft said his office has not yet taken a formal position on the bill. But he said it would most likely oppose the elimination of jury trials because it “may impact the perception of fair justice in our state.”

    However, he said the office supports re-appointment in protective-services cases. If the bill is passed, Kraft said, it would cost the SPD about $3.2 million a year to provide legal services and contract with outside attorneys.

    “We’ve heard that lack of consistent representation is a major hindrance in the [child-protective] process,” he said, “and really works against the best interest of the child.”

    Milwaukee County Circuit Court Judge Christopher Foley, who served on a committee that studied the issue prior to the bill’s introduction, said representation in protective-services cases “varies widely throughout the state.”

    Foley, who spent about two decades in the Milwaukee children’s court system, estimated that about 90 percent of parents in protective-service cases there have counsel appointed for them.

    “From a personal perspective,” Foley said, “if I’m going to take somebody’s kids away, I want to know: one, the decision is fair; and two, I’m making the right decision.

    “I don’t think it’s very fair to be taking their kids away without a lawyer.”

    Madison attorney Theresa Roetter, of Annen Roetter LLC, said the bill seems to balance well the representation and speediness aspects of improving children’s court proceedings.

    “From my perspective as a child advocate,” she said, “the more safeguards we can have at the beginning of the process, the better.”

    Eliminating jury trials in both proceedings would speed up the process, Foley said, and allow a judge to decide a case based strictly on the legal issues. Juries, he said, tend to be swayed by the often troublesome details of a case.

    “The jury hears stuff about cocaine, guns, bad boyfriends and sexual abuse,” Foley said, “and say “’OK, where do we sign?’”

    AB 151 is part of a trio of bills designed to overhaul the way children’s court proceedings are handled in state. The Assembly bills, which came out of the Joint Legislative Council in April, propose a variety of changes and clarifications to the system, ranging from court-approved contact between a child and a blood relative and losing parental rights if a child was born because of sexual assault.

    The ultimate goal, Kerkman said, is to lessen the burden on the state with these sorts of cases. If the system can run more smoothly, she said, it will speed up and provide a more stable environment for the affected children.

    “We are trying to make the system better,” she said, “for the kids that are in it.”

    — Follow Eric on Twitter

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