Waukesha County Department of Social Services v. C.E.W.

Majority - Shirley S. Abrahamson, J.

1. Yes, the circuit court erred in instructing the jury that it, the jury, determines whether parental rights are terminated. Wisconsin's statutory scheme (sec. 48.424(3)) clearly bifurcates termination proceedings: the jury's role at the fact-finding stage is solely to decide if grounds for termination have been proven, while the court alone decides the disposition, including the ultimate termination of rights. The jury instructions strongly implied the jury was making the termination decision, which is a misstatement of law. Though the County waived objection to the instructions, the Supreme Court exercised its discretionary power under sec. 751.06 to review the error because it related to a pivotal legal issue and constituted a probable miscarriage of justice. 2. No, the "best interests of the child" standard does not apply at the fact-finding stage of a parental rights termination proceeding. While sec. 48.01(2) states that the best interests of the child shall be of paramount consideration, specific statutes (secs. 48.424(3) and 48.426(2)) limit this standard to the dispositional stage. At the fact-finding stage, the fact-finder (jury) only determines if statutory grounds for termination exist, without considering the child's best interests. 3. Yes, the circuit court erred in refusing to allow the guardian ad litem to exercise peremptory strikes and to present opening and closing statements to the jury. The procedural rules in chs. 756 and 805, which govern termination proceedings, treat the child and their guardian ad litem as parties entitled to full participation. Under sec. 805.08(3), the guardian ad litem should have been permitted to share in the County's peremptory challenges. Furthermore, under sec. 805.10, the guardian ad litem, as a representative with an interest in the facts, has a right to argue the facts to the jury at the fact-finding stage, as their advocacy contributes to the elucidation of truth, provided they do not invoke the best interests of the child in their arguments. 4. Yes, the circuit court erred in instructing the jury concerning the five-sixths verdict rule. The pattern jury instruction, which suggested that the same ten jurors should concur in all answers, was inappropriate because the six verdicts (one for each child, one for each ground) were independent of each other. The requirement of unanimity across independent verdicts has no logical reason, though the court did not determine if this error was prejudicial given the reversal on other grounds.