Wis. Stat. § 48.424
Wis. Stat. § 48.424
Although the best interests of the child standard does not apply to the fact-finding hearing, the guardian ad litem can represent the interests of the child to develop the facts as they relate to whether the grounds for termination exist. When a jury is the fact-finder, the guardian ad litem should be permitted to exercise peremptory challenges in jury selection. Interest of C.E.W., 124 Wis. 2d 47, 368 N.W.2d 47 (1985). Despite jury findings that grounds for termination exist, the court may dismiss a termination petition if evidence does not support the jury's finding or if the evidence of unfitness is not so egregious as to warrant termination; whether the evidence supports termination is a matter of discretion. In Interest of K.D.J., 163 Wis. 2d 90, 470 N.W.2d 914 (1991). Once a basis for termination has been found by the jury and confirmed with a finding of unfitness by the court, the court must move to the dispositional hearing in which the prevailing factor is the best interests of the child. A court should not dismiss a petition for termination at a dispositional hearing unless it can reconcile dismissal with the best interests of the child. Sheboygan County D.H.S.S. v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402, 01-1692. While not required, circuit courts in TPR proceedings are urged to consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury's consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Walworth County DH&HS v. Andrea L.O., 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008. A parent was deprived of the right to a jury trial when the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Although counsel had stipulated that the element was satisfied, the parent had not agreed to the stipulation in open court, the required documentary evidence of the element was missing from the record, and the evidence adduced was not so "ample" as to make the element "undisputed and undisputable." Manitowoc County Human Services Department v. Allen J., 2008 WI App 137, 314 Wis. 2d 100, 757 N.W.2d 842, 07-1494. The circuit court is not obligated to inform the parent that by pleading no contest to grounds for termination the parent is waiving the constitutional right to parent or that the right to parent is a constitutional right. What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived. For a knowing, voluntary, and intelligent plea, the parent must be informed of the two independent dispositions available to the circuit court, dismissing the petition and terminating parental rights. Brown County Department of Human Services v. Brenda B., 2011 WI 6, 331 Wis. 2d 310, 795 N.W.2d 730, 10-0321. Contrary to the Child's Best Interest: Jury Trials in Children's Court Proceedings. Sowinski & Wiensch. Wis. Law. Apr. 2013.