WisBar News: Personal Colloquy Not Required to Waive Jury Trial in Termination of Parental Rights Cases:

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    Personal Colloquy Not Required to Waive Jury Trial in Termination of Parental Rights Cases

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    A mother waived a right to a jury trial in a case against her for termination of parental rights. Recently, a state appeals court ruled that due process does not require the court to engage in a "personal colloquy" to confirm the waiver.

    article title Jan. 11, 2013 – In 2010, the Racine County Human Services Department put a mother’s children in foster care after learning the 23-year-old had been initiating sex with a 13-year-old neighbor boy. She (Latanya D.K.) received a two-year prison sentence for child sexual assault and enticement.

    While she was in prison, the county filed a petition to terminate her parental rights. Latanya waived her right to a jury trial and stipulated to all facts establishing grounds for termination. The judge engaged Latanya in colloquy on the stipulations before accepting them.

    The court then determined that Latanya’s parental rights should be terminated. She appealed, arguing that she never waived her right to a jury trial personally during a colloquy with the judge. She also said her lawyer was ineffective for failing to file a jury trial demand.

    While noting that jury trials in termination of parental rights (TPR) cases are “of great importance,” a three-judge appeals panel in State v. Latanya D.K., 2012AP1121-22 (Jan. 11, 2013), explained that procedural safeguards in TPR cases are not as stiff as criminal cases.

    That is, the right to a jury trial regarding criminal guilt is constitutional under State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, the panel explained. In TPR proceedings, the right is statutory.

    “And no statute or case has imposed the obligation mandated in Anderson for jury trial waivers in criminal cases that they must in all cases be made on the record by the defendant personally, in colloquy with the court,” wrote Chief Appeals Court Judge Richard Brown.

    The panel noted that Latanya was informed of a right to jury trial and waived that right, on advice of her attorney, for strategic reasons in the beginning phase of the case.

    “We recognize that a personal colloquy concerning waiver of the jury trial is a good idea in TPR proceedings and will often be a better way of recording a parent’s waiver of the jury trial right,” Judge Brown wrote. “But we decline to impose it as an obligation.”

    In addition, the appeals panel ruled that Latanya’s lawyer gave her effective advice to waive a jury trial because “it was practically inconceivable that a jury trial, or a court trial, would have resulted in a finding that grounds for termination did not exist.”


    Joe Forward is the legal writer for the State Bar of Wisconsin.