State and local child welfare agencies in Wisconsin had in their care 6,509 children in 2010.¹ In 2011, 1,698 Wisconsin children were removed from their homes.² As the Wisconsin Supreme Court has recognized, “Depriving a child of a permanent home deprives the child of his or her childhood.”³ Children have a right to be free from social worker visits and the requisite fear of being moved and not knowing where “home” will be today, tomorrow, and all the days that follow. The state has a compelling interest in protecting our most vulnerable children from disruption and trauma that cost them their childhoods.

But competing against these interests of at-risk children are the rights of their parents, specifically, the right of parents to have jury trials in children in need of protection and services (CHIPS), juvenile in need of protection and services (JIPS),⁴ and involuntary termination of parental rights (TPR) cases under the Children’s Code (Wis. Stat. ch. 48) and the Juvenile Code (Wis. Stat. ch. 938). A legislative study committee established in 2012 recommended, among other things, elimination of the jury trial option in children’s court proceedings, a recommendation since approved by the Joint Legislative Council. This article examines the basis for jury trials in these types of cases and argues that Wisconsin’s statutory choice is contrary to the best interests of children.

Legal Basis for Juries in CHIPS and TPR Cases is Limited

Under Wisconsin law, CHIPS and TPR proceedings are bifurcated proceedings, in which the first stage is intended to protect the parent’s rights in establishing the court’s jurisdiction and the second, to recognize the needs of the child.⁵ In the first stage, a parent may request that the trier of fact be a jury, which determines whether statutory grounds for a CHIPS or TPR order exist.⁶ If grounds are found, in the CHIPS context, the judge must then enter an order requiring the parent to correct the conditions that made the child unsafe and requiring the child welfare agency to assist the parent in doing so.⁷ In the TPR context, the judge must find that the parent is unfit and hold a dispositional hearing to determine whether it is in the child’s best interest for the parent’s rights to be terminated.⁸

Accordingly, in a CHIPS case, the parent will not know, until the jury trial is held and the court’s jurisdiction thereby established, what conditions he or she must meet to discontinue court involvement in the family or what services he or she will receive. In the TPR context, no decision about the child’s permanent home can be made until the jury trial has ended and an appeal, if one is filed, has been resolved.

This bifurcated system appropriately recognizes that the right to raise one’s own child is a fundamental constitutional right, which the state cannot abrogate without appropriate due process protections.⁹ “Parental rights termination adjudications are among the most consequential of judicial acts, involving as they do ‘the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.’”¹⁰

It is significant, however, that the Wisconsin Legislature has stated that the purpose of the Children’s Code is to protect the best interests of the child, and the second steps in both the CHIPS and TPR processes give life to that intent.¹¹ The legislature has said that “[c]ourts and agencies responsible for child welfare should … recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their return to their family.”¹²

The Wisconsin Supreme Court has found that neither the U.S. nor the Wisconsin Constitution guarantees the right to a jury trial in an involuntary TPR case.¹³ In a dispute as to whether the civil summary judgment procedure applies to TPR cases, the court reasoned that because the right to trial is purely statutory and not constitutional, the rules of civil procedure apply.¹⁴ The court further applied a well-established balancing test in determining that no bright-line rule to protect due process rights via jury trial is warranted or appropriate.¹⁵ This same reasoning should apply to CHIPS cases.

Similarly, both the Wisconsin Supreme Court and the U.S. Supreme Court have found that juveniles have no federal constitutional right to a jury trial in delinquency adjudication proceedings.¹⁶ The Wisconsin court held that, unless the right to a jury in these proceedings existed at the time of the adoption of the Wisconsin Constitution in 1848, the right could not have been preserved, and it was not.¹⁷ In fact, Wisconsin’s requirement that juries, if timely requested, be used in CHIPS and TPR cases was created well after the adoption of the state’s constitution, in 1977 for CHIPS cases and 1979 for TPR cases.¹⁸

The jury system is a cornerstone of American law. The framers of the Constitution mandated the right to jury for persons accused of crimes.¹⁹ Ultimately, the Constitution was amended to include the right to a jury trial in some civil cases.²⁰ But as in Wisconsin, federal and state courts across the country have rejected the proposition that the Due Process Clause guarantees the right to a jury in TPR proceedings.²¹

Courts in delinquency cases have also consistently found that “implicit in the rationale of the holding is that a jury trial is not a fundamental concept of due process.”²² While notice, counsel, confrontation, cross-examination, and a standard of proof are necessary aspects of due process in juvenile proceedings, juries are not.²³ Also, the U.S. Supreme Court has repeatedly refused to “assert … that every criminal trial – or any particular trial – held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.”²⁴ “[O]ne cannot say that in our legal system the jury is a necessary component of accurate fact finding.”²⁵

Public Policy Supports the Use of Court Trials in These Proceedings

The federal government has recommended that state laws provide for the termination of parental rights without the use of juries for good reason.²⁶ In recommending that states not allow the use of juries in TPR cases, the federal Administration for Children and Families (ACF) has stated the following:

“Among the reasons for having termination proceedings tried by judges rather than juries are the following: First, jury trials proceed more slowly than trials by judges and thus delay permanency for children. Second, jury trials take far more attorney and court time than trials by judges, thus crowding the court docket and preventing attorneys from preparing other cases. This further delays permanency for children. Third, for reasons described elsewhere, the quality of decisions in child abuse and neglect cases is better when a single judge hears all stages of the same case.”²⁷ This is likely why only five states (Wisconsin, Oklahoma, Texas, Virginia, and Wyoming) allow or require the use of juries in TPR cases.²⁸ Arizona enacted a law allowing jury trials in TPR cases in 2003 but repealed it in 2007.²⁹In 2004, Wisconsin was one of only 11 states allowing for juries in CHIPS cases.³⁰

Cases tried to juries generally take longer than those tried to courts. Further exacerbating a jury trial’s effect on the permanency goal is the fact that jury trials involve the potential for additional appellate issues, including challenges concerning the jury array; voir dire questions; individual voir dire or the lack thereof; juror bias; peremptory strikes; the swearing of the jury; juror conduct during trial; preliminary instructions; and appropriateness of opening statements.

Because they take longer, jury trials are more expensive than trials to the court, and they place demands on limited resources that could be better spent on the caseworkers and services needed to assist children to return safely home or find permanent families.

Because state and county foster care systems nationwide have been plagued by the problem of children languishing in foster care, Congress enacted the Adoptions and Safe Families Act (ASFA), which requires that a TPR action be filed whenever a child has been out of a parental home pursuant to a court order for 15 of the most recent 22 months.³¹ Wisconsin has enacted a corresponding law.³² This filing requirement may be avoided if an exception applies.³³

The 15/22 filing requirement is meaningless if timely petitions are filed only to have the case stall while issues related to scheduling and hearing jury trials delay the outcome. (See the accompanying sidebar, “Typical CHIPS and TPR Case Requiring Jury Trial – A Hypothetical Case.”) Every jury trial that is held at the request of a parent that is not constitutionally required slows the process of permanency for all children in that jurisdiction awaiting adjudication of the merits of their cases.

As one commentator has noted:

“Children are not static objects. They grow and develop, and their proper growth and development require more than day-to-day satisfaction of their physical needs. Their growth and development also require day-to-day satisfaction of their emotional needs, and a primary emotional need is for permanence and stability. Only when their emotional needs are satisfied can children develop the emotional attachments that have independent constitutional significance. A child’s need for permanence and stability, like his or her other needs, cannot be postponed. It must be provided early. That need for early assurance of permanence and stability is an essential factor in the constitutional determination of whether to protect a parent’s relationship with his or her child.”³⁴

The presiding judge must “[administer] the jury system in that court and shall discharge that duty in an efficient, equitable and cost-effective manner.”³⁵ The clerk of courts must develop the jury pool, randomly selected from the voting-age population, without discriminating against any citizen on the basis of sex, race, color, sexual orientation, or other prohibited basis.³⁶ The pool must include sufficient prospective jurors to meet the needs of the court at least 12 days before the day the jurors must appear, through first-class mail or other appropriate service.³⁷

If not enough jurors are available for trial, the court may order the sheriff to bring individuals “from the vicinity” to the courtroom to hear the trial.³⁸ Jurors must be paid a fee by the county for completing jury service as well as be reimbursed for mileage to and from court.³⁹ Jury trials are time-intensive undertakings, including preparing witnesses; sending subpoenas; and drafting opening statements, jury instructions, verdict forms, and closing arguments.

Given the overwhelming precedent finding that juries add no genuine benefit to the parents’ due process rights, allowing parents’ statutory (that is, non-constitutionally required) jury right to trump children’s need for stability unnecessarily inflicts trauma on children. Our courts have long recognized that constitutional principles and protections apply to children, for “neither [due process] nor the Bill of Rights is for adults alone.”⁴⁰ “[C]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”⁴¹ State law related to the placement of children in foster care incorporates the rights and freedoms of children, by “provid[ing] judicial and other procedures through which children … are assured fair hearings and their constitutional and other legal rights are recognized and enforced.”⁴²

Finally, there is simply no evidence to suggest that offering jury trials to parents increases the accuracy or the quality of the outcomes. Triers of fact in these cases often must address complex issues related to alcohol and drug abuse and mental health. They must also address services and funding related to the adequacy of the agencies’ provision of services to the families, as well as family dynamics that often transcend generations. What is more, they are often asked to make predictions about the parents’ behavior.

For example, in a case under the TPR ground of continuing need, the trier of fact must determine, among other things, 1) whether the parents failed to meet the conditions for return established by the court order; 2) whether the agency made reasonable efforts to provide services ordered by the courts; and 3) whether there is a substantial likelihood that the parents will meet the conditions for return within the next nine months.⁴³ As the ACF report points out, a children’s court judge typically oversees many hearings that relate to the progress of parents and the provision of services to parents. That judge is in a much better position to evaluate not only the past conduct, but also the likely future conduct, of the parents in terms of ability to safely parent, as well as whether the child welfare agency providing necessary services to the parents did so according to the law.⁴⁴

Conclusion

It is misguided to believe that a jury trial is the only appropriate means by which a parent may receive necessary due process in CHIPS and TPR proceedings. Delay and cost would be reduced by the elimination of these jury trials. The extra time and expense might be worthwhile if juries were constitutionally required or if their use ensured consistently better results, but neither contingency is true. Most important, the use of juries in TPR cases results in children spending excessive time in temporary foster home placements.

As one commentator has noted, “The courts and professionals that deal with children have recognized that children view time differently than adults. Unlike adults, who measure the passing of time by clocks and calendars, children have their own built-in sense based on the urgency of their instinctual and emotional needs. What seems like a short wait to an adult can be an intolerable separation to a young child to whom a week can seem like a year, and a month forever.”⁴⁵ For these reasons, it is time for Wisconsin to reexamine its use of juries in CHIPS and TPR cases.

Endnotes

¹ Mary Ann Lipert, KidStat Out of Home Care Overview: Wisconsin State Legislature (presentation to Legislative Council Study Committee on Permanency for Young Children, June 27, 2012).

² Wisconsin Department of Children & Families, Wisconsin Child Abuse and Neglect Report, Annual Report for Calendar Year 2011 to the Governor and Legislature 48.

³ In re Daniel R.S., 2005 WI 160, ¶ 7, 286 Wis. 2d 278, 706 N.W.2d 269.

⁴ CHIPS cases and JIPS cases tend to be very similar, although with varying grounds and dispositional orders. In the interest of brevity, the authors have not included references to JIPS cases or JIPS statutes in this article. The argument against the use of jury trials in CHIPS cases, however, applies equally to JIPS cases.

⁵ Steven V. v. Kelley H., 2004 WI 47, ¶ 26, 271 Wis. 2d 1, 678 N.W.2d 856.

⁶ Wis. Stat. §§ 48.31(2), (4), 48.422(4), 48.424(3).

⁷ Wis. Stat. §§ 48.31(7), 48.355(2)(b)1., 48.356(1).

⁸ Wis. Stat. §§ 48.424(4), 48.426, 48.427.

⁹ Santosky v. Kramer, 455 U.S. 745, 753 (1982).

¹⁰ Steven V., 2004 WI 47, ¶ 21, 271 Wis. 2d 1.

¹¹ Wis. Stat. § 48.01(1).

¹² Wis. Stat. § 48.01(1)(a).

¹³ Steven V., 2004 WI 47, ¶ 4, 271 Wis. 2d 1.

¹⁴ Id. ¶ 32.

¹⁵ Id. ¶ 40.

¹⁶ McKeiver v. Pennsylvania, 403 U.S. 528 (1971); In the Interest of Hezzie R., 219 Wis. 2d 848, 891, 580 N.W.2d 660 (1998).

¹⁷ Hezzie R., 219 Wis. 2d at 868-69.

¹⁸ Wis. Stat. section 48.422(4) was enacted by Assembly Bill 656, Chapter 330, Laws of 1979. The CHIPS jury trial statute, Wis. Stat. section 43.31(2), was created by Chapter 354, Laws of 1977. This legislative history was provided by Marquette Law School students Carlos Hernandez and Jill Mueller. Many thanks for their assistance, as well as their review of the endnotes in the hope that the authors would comply with proper Blue Book rules.

¹⁹ U.S. Const. art. III, § 2; amend, VI.

²⁰ U.S. Const. amend, VII.

²¹ See In re C., 552 P.2d 586, 588 (Or. Ct. App. 1976); In re GP, 679 P.2d 976, 988 (Wyo. 1984); In Re DG, 916 P.2d 991, 994 (Wyo. 1996); Matter of C.L.A., 685 P.2d 931, 933 (Mont. 1984); State in Interest of T.B., 933 P.2d 397, 398 (Utah Ct. App. 1997); In re Lambert, 203 F.2d 607, 610 (D.C. Cir.1952); In the Matter of Sean B.W., 381 N.Y.S.2d 656, 657 (N.Y. Sur. 1976); State v T.J., 934 P.2d 293, 296 (N.M. App. 1997); In Re Clark, 281 S.E.2d 47, 57 (N.C. 1981).

²² In re Weinstein, 386 N.E.2d 593, 596 (Ill. App. 1979) (emphasis added).

²³ See McKeiver, 403 U.S. at 543.

²⁴ Id. (quoting Duncan v. Louisiana, 391 U.S. 145 (1968)).

²⁵ Id. at 543.

²⁶ U.S. Department of Health & Human Services, Administration for Children and Families, http://archive.acf.hhs.gov/programs/cb/pubs/adopt02/02adpt6.htm. The authors have been informed that when this article was submitted, the ACF website was under reconstruction and some items have not yet been reloaded to the site.

²⁷ Id.

²⁸ Linda A. Szymanski, Is a Jury Trial Ever Available in a Termination of Parental Rights Case?, National Center for Juvenile Justice–NCJJ Snapshot, March 2003.

²⁹ Id. at 1.

³⁰ Linda A. Szymanski, Jury Trial in Abuse, Neglect, Dependency Cases, National Center for Juvenile Justice-NCJJ Snapshot, Jan. 2004.

³¹ 42 U.S.C. § 675(5)(E).

³² Wis. Stat. § 48.417(1)(a).

³³ See 42 U.S.C. § 675(5)(E); Wis. Stat. § 48.417(2).

³⁴ Baby Boy K., 546 N.W.2d 86, 97 (citing Elizabeth Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313, 364 (1984)).

³⁵ Wis. Stat. § 756.001(5).

³⁶ See Wis. Stat. §§ 756.001(3), 756.05.

³⁷ See Wis. Stat. § 756.05.

³⁸ Wis. Stat. § 756.07.

³⁹ Wis. Stat. § 756.25.

⁴⁰ See In re Gault, 387 U.S. 1 (1967).

⁴¹ See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).

⁴² Wis. Stat. § 48.01.

⁴³ Wis. Stat. § 48.415(2).

⁴⁴ U.S. Department of Health & Human Services, Administration for Children and Families, www.acf.hhs.gov/programs/cb/pubs/adopt02/02adpt6.htm, viewed Jan. 27, 2012. The authors have been informed that when this article was submitted, the ACF website was under reconstruction and some items have not yet been reloaded to the site.

⁴⁵ Thomas J. Walsh, The Clock is Ticking: Do the Time Limits in Wisconsin’s Termination of Parental Rights Cases Serve the Best Interests of Children?, 83 Marq. L. Rev. 743 (2000).

⁴⁶ The scenario the authors present in the accompanying sidebar combines aspects of several CHIPs and TPR cases in Oneida and Milwaukee counties. In the authors’ experience, the circumstances, timeline, and disposition are very typical of actual cases.

⁴⁷Had the parents not stipulated, they would have had a right to a jury trial pursuant to Wis. Stat. section 48.31(2), which would have delayed the disposition of the case in most Wisconsin jurisdictions by many months.