March 13, 2023 – A promise not to prosecute a couple for child abuse became binding once the couple detrimentally relied upon the promise by consenting to the termination of their parental rights, the Wisconsin Court of Appeals has ruled.

In State v. Debra L. Rippentrop 2022AP92 (Feb. 23, 2023), and State v. Steven E. Rippentrop, 2022AP93 (Feb. 23, 2023), the Court of Appeals District IV also held that the non-prosecution agreement did not violate public policy.

Runaway

In January 2015, A.B., the son of Debra and Steven Rippentrop, ran away in Juneau County. When the police found A.B., he told them that he ran away because his parents had physically restrained him for 24 hours a day, seven days a week.

The police referred the matter to Michael Solovey, the Juneau County District Attorney. A child in need of protective services (CHIPS) case, initiated by the county corporation counsel, ran parallel to Solovey’s criminal investigation.

Solovey later testified that he worried about whether a jury would credit the testimony of A.B., who would be the chief witness against his parents if the case were to go to trial.

Solovey learned from the Rippentrops’ attorney that they were fighting the CHIPS case. After talking with the guardian ad litem, Solovey concluded that it was not in A.B.’s best interest to return to his parents’ home.

Solovey’s Proposal

In October 2015, Solovey met with the Rippentrops and their attorney. The state wouldn’t prosecute them, Solovey told the Rippentrops, if they agreed to:

• cooperate with the county officials in the CHIPS case;

• end all contact with A.B.; and

• consent to the termination of their parental rights.

Solovey sent emails to the police and the corporation counsel, informing them of the proposal he’d made to the Rippentrops.

The Rippentrops’ attorney contacted Solovey and orally conveyed the Rippentrops’ acceptance to Solovey. Solovey’s proposal to the Rippentrops was never set down in writing.

The Rippentrops withdrew their request for a hearing in the CHIPS case and began cooperating with county officials.

The Rippentrops also:

• initiated the process for terminating their parental rights;

• stopped communicating with A.B.’s guardians; and

• cooperated with county officials to make A.B.’s guardians his adoptive parents.

Decision Not to Charge

In November 2015, Solovey told the police he’d decided not to prosecute the Rippentrops.

The county’s corporation counsel was displeased at Solovey’s decision. In early 2016, the corporation counsel began a John Doe proceeding over the Rippentrops’ alleged abuse of A.B.

Solovey testified in the John Doe proceeding but didn’t disclose the existence of the non-prosecution agreement.

In May 2016, the Rippentrops each signed a petition asking that their respective parental rights over A.B. be terminated. During the hearing on the petitions, both Rippentrops testified in the negative when asked whether anybody had promised them anything or threatened or coerced them.

The TPR court issued an order terminating the Rippentrops’ parental rights and issued an order dismissing the CHIPS case.

Change in DAs

In February 2019, the new district attorney charged the Rippentrops in Juneau County Circuit Court with second degree recklessly endangering safety, false imprisonment, physical abuse of a child, and mental harm to a child, each as a party to a crime.

The Rippentrops filed a motion to dismiss the charges, citing the non-prosecution agreement.

In their motion, the Rippentrops claimed that they had: 1) performed their obligations under the agreement; and 2) detrimentally relied on promises made by Solovey.

The circuit court concluded that the non-prosecution agreement violated public policy but dismissed the charges against the Rippentrops with prejudice, to remedy what it determined was prosecutorial misconduct.

The state appealed.

Prosecutor’s Promises Binding

Writing for a three-judge majority, Judge Rachel Graham explained that under court of appeals case law, a district attorney may enter into a non-prosecution agreement without judicial approval.

Under that case law, Graham pointed out, a prosecutor’s promise can be binding if the promisee relies upon it.

Judge Graham noted that the state had not challenged the circuit court’s determination that the Rippentrops had detrimentally relied upon the non-prosecution agreement by satisfying the conditions in the agreement.

Analogous to Plea Agreements

The state argued that the non-prosecution agreement violated public policy because: 1) it violated Wis. Stat. section 48.41, which specifies the procedure for TPR; and 2) the agreement was, in effect, an agreement to withhold information form the TPR court.

Under section 48.41, the state argued, a TPR must be voluntary, and a TPR court must conduct an inquiry with the parent regarding whether any threats or promises have been made with regarding to the TPR – in effect, a parent’s agreement to consent to a voluntary TPR in exchange for the elimination of any criminal exposure is a legal contradiction.

But that argument missed the mark, Graham reasoned.

“Criminal defendants frequently enter into plea agreements that require them to waive valuable rights, and the defendant’s performance under the plea agreement … is not considered involuntary merely because the defendant was motivated or induced to enter into the plea agreement by a desire to obtain its benefits,” Judge Graham wrote.

No Agreement to Withhold Info

Graham acknowledged that under Wisconsin Supreme Court case law, an agreement by a prosecutor to withhold relevant information about a criminal defendant from a sentencing court violates public policy and is unenforceable.

However, Graham noted, in this case there was no explicit agreement to withhold information about the non-prosecution agreement from the TPR court.

She pointed out that the office of corporation counsel knew about Solovey’s proposal to the Rippentrops.

“Although the aforementioned individuals were not parties to the deal the Rippentrops struck with Solovey – indeed, it appears that they strenuously disapproved of its terms – they made no objection to receiving its benefits when the Rippentrops followed through with their promise to consent to the termination of their parental rights,” Judge Graham wrote.

Graham also pointed out that the public policy in enforcing contracts was an important one.