C.E.W., In Interest of

Decision Date29 May 1985
Docket NumberNo. 84-045,84-045
Citation368 N.W.2d 47,124 Wis.2d 47
PartiesIn the Interest of C.E.W., a Person Under the Age of 18: WAUKESHA COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. C.E.W., Respondent.
CourtWisconsin Supreme Court

Stephen C. Lepley, Asst. Corp. Counsel, Waukesha, for appellant.

Michael D. Mandelman, Milwaukee, for respondent.

Lee S. Dreyfus, Jr., Guardian Ad Litem, and Love, Voss & Dreyfus, Waukesha, amicus curiae.


This appeal from a judgment of the circuit court for Waukesha county, Harry G. Snyder, circuit judge, is before the court on certification by the court of appeals pursuant to sec. 809.61, Stats.1981-82. 121 Wis.2d 710, 362 N.W.2d 428. The circuit court dismissed the petition for termination of parental rights of C.E.W. brought by the Waukesha County Department of Social Services (County), because, according to the circuit court, "the jury ... returned a verdict finding that it was not appropriate at this time to terminate the parental rights of [C.E.W.]." Because the circuit court erroneously instructed the jury that it, the jury, determines whether parental rights are terminated, we reverse the judgment and remand the cause for a new hearing.

On June 30, 1983, the Waukesha County Department of Social Services (County) filed a petition requesting the involuntary termination of parental rights of C.E.W., the natural father, to his three minor male children, each of whom was under the age of eight years. The natural mother's parental rights had already been terminated. The petition alleges two grounds for involuntary termination of parental rights to each of the three children: continuing need of protection or services, sec. 48.415(2), Stats.1981-82, and parental noninvolvement (abandonment), sec. 48.415(1)(a)2, Stats.1981-82.

C.E.W. contested the petition. A guardian ad litem represented the children in the proceeding. The circuit court allowed the guardian ad litem to present and cross-examine witnesses but precluded him from making opening and closing statements to the jury and from exercising peremptory strikes of potential jurors. The jury, requested by C.E.W. pursuant to sec. 48.422(4), Stats.1981-82, returned a verdict favorable to C.E.W., and the circuit court dismissed the petition, pursuant to sec. 48.31(2).

The County appealed, and the court of appeals certified the following question: (1) "Whether in proceedings for the termination of parental rights the best interests of the child standard is to be applied throughout the entire proceeding?" In their original and supplemental briefs and in oral argument before this court the parties presented three additional issues: (2) Did the circuit court err in instructing the jury that it, the jury, determines whether parental rights are to be terminated? (3) Did the circuit court err in refusing to allow the guardian ad litem to strike jurors and to present open and closing statements to the jury? and (4) Did the circuit court err in its instructions to the jury regarding the five-sixths verdict rule?

These issues are issues of law which this court may decide without deference to the circuit court. Although we reverse the judgment on the basis of the circuit court's error in instructing the jury that it, the jury, determines whether parental rights are to be terminated, we shall also consider the remaining issues, including the issue certified by the court of appeals, without considering whether the issues were properly preserved for appellate review. We do so because these issues may arise on remand in the new fact finding proceeding.


The circuit court gave the following instruction to the jury regarding the first alleged ground for termination of parental rights:

"The first alleged ground for Termination of the Parental Rights of [C.E.W.] is that the child in question is in need of protection and services, has been placed outside the home for a period of one year or longer, and that the parent has refused to remedy the conditions which resulted in removal from the home.

"Before you may terminate his parental rights under that ground, you must find to a reasonable certainty, by evidence that is clear, satisfactory, and convincing there were the following six elements present: First...." (Emphasis added.)

The circuit court then instructed the jury with regard to the second ground as follows:

"The second alleged ground for Termination of Parental Rights is that [C.E.W.] substantially neglected or willfully refused to remedy the conditions which resulted in the removal of the children from his home.

"Before you may terminate his parental rights under that ground, you must find to a reasonable certainty, by evidence that is clear, satisfactory and convincing that there were the following five elements present: First...." (Emphasis added.) 1

Each verdict question was phrased as follows:



"__________ YES

"__________ NO


The jury was excused at 7:40 p.m. At 8:10 p.m. the jury asked the following question: 2 "And what will happen to the children and at what age?" The circuit court advised the lawyers that it intended to respond that the judge could not answer the question.

Although the parties offered instructions different from the ones given, they made no objections on the record to the instructions given. Nor did their first set of briefs raise a question about the instructions relating to the grounds for termination.

In reading the instructions, the verdict questions, and the jury's question to the circuit court, this court became concerned that the jury might have inferred from the instructions and the verdict question that C.E.W.'s parental rights to his children would automatically be terminated if the jury found that a ground for termination of parental rights existed.

Because of our concern about the instructions, we requested counsel to submit briefs on the following questions: "1. Is the jury instruction contrary to sec. 48.424, Stats.? 2. If so, does plain error apply?" We shall treat first the question of preservation of error and discretionary review and second the question of whether the instruction misstated the law.

C.E.W. asserts that because the County did not object to the instructions at trial, any error in the instructions was waived.

Sec. 805.13(3) sets forth the statutory requirements for objecting to instructions. Sec. 801.01(2) provides that chapters 801 to 847 govern procedure and practice in the circuit courts in all civil actions and special proceedings except where different procedure is prescribed by statute or rule. No statute or rule in the Children's Code (ch. 48) provides a procedure different from sec. 805.13(3) for objecting to instructions. The application of sec. 805.13(3) is consistent with the purposes and policies underlying the termination proceeding and the statutory procedures set forth in ch. 48 for the fact finding stage of a termination proceeding and is protective of the parent's, child's, and state's interests in the fact finding process. In other cases this court has assumed that chs. 801 to 847 generally apply to ch. 48 proceedings. In In Matter of E.B., 111 Wis.2d 175, 330 N.W.2d 584 (1983), for example, the court of appeals, the parties and this court assumed, without discussing the issue, that secs. 805.13(4) and 972.10(5) applied to a delinquency hearing. 3 We therefore turn to sec. 805.13(3) for assistance in the issue before us.

Sec. 805.13(3) provides that the circuit court shall conduct a conference with counsel outside the presence of the jury to formulate instructions and special verdict questions; that counsel may file motions requesting instructions and verdict questions; that the court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit; and that counsel may object to the proposed instructions or verdict "stating the grounds for objection with particularity on the record." The statute further provides that "[f]ailure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict." Counsel did request that the instruction conference be reported. The circuit court unfortunately refused to do so. In light of sec. 805.13(3), the preferable practice is to report the instruction conference in full or, at a minimum, to report a full summary of the conference. See SCR 71.01 adopted Jan. 17, 1985. Although the circuit court refused to have the instruction conference reported, the parties had the responsibility for ensuring that the basis for any objection was put on the record. The County failed to do this.

The guardian ad litem urges that there was no waiver because the submission of alternate correct instructions properly preserved the error for appeal. We are not persuaded by this argument. A party's mere submission of alternate instructions without a particularized objection on the record to the instructions proposed by the court cannot provide a basis for raising the erroneous instruction on appeal as a matter of right. A party's submission of proposed instructions has the effect of notifying the circuit court of an objection to the instructions, but a submission does not explain the basis for the objection and does not aid the circuit court in correcting the instruction if necessary.

We conclude that the County failed to preserve its objection to the erroneous instructions. Failure to object to an instruction constitutes a waiver of the error. Hamed v. Milwaukee County, 108 Wis.2d 257, 271, 321 N.W.2d 199 (1982); Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis.2d 301, 309-317, 296 N.W.2d 749 (1980).

Relying on the "plain error" rule, the County and guardian ad litem maintain that this court may review the instructions even if w...

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