Four States Allow Jury Trials; CPS Watch Finds

by Doug Quirmbach

Currently, four states provide parents the right to jury trials during
the adjudication phase in juvenile court, CPS Watch has learned.
Parents and children have the right to request jury trials in
Colorado, Michigan, Wyoming and Wisconsin under criteria that varies
among the states.

Colorado allows jury trials only on the merits of issues connected

with dependency and child abuse/neglect issues - factual aspects of
the case during the adjudication phase. Apparently, many parents do
not opt for the right to a jury trial because they harbor false hope
that treatment plans worked out by CPS may result in their children
being returned.

"Jury trials are not common," says Judge Frederic Rodgers. "In my
experience, at the merits stage, there may be optimism that the
treatment plan to be imposed at the dispositional stage may work, and
a TPR disposition won't be necessary."

S.R.S. 19-3-202, the authorizing statute in Colorado, also suggests

that there must be a risk that termination of parental rights may be
sought for the parents to be entitled to a jury trial. This
implication is supported by case law (see People in the Interest of
M.B., 535 P.2d 192 (1975)).

Hearings for the actual TPR are conducted in front of a judge in

Colorado.

Texas also permits jury trials when termination of parental rights is

sought by the state, according to Cynthia Bryant of the Children's
Rights Clinic at the University of Texas School of Law.

Payne County Associate District Judge Robert M. Murphy, Jr. says that
Oklahoma allows jury trials for the actual TRP proceedings. The right
was granted in 1998 when the trial court automatically denied parents'
simple demand for a jury trial. The parents appealed.

"Dispositive of this appeal is the parents' contention that the trial

court erred as a matter of law in denying their demand for a jury
trial," the decision from Oklahoma Court of Appeals, Division 2,
reads. "They argue the parental bond is a fundamental,
constitutionally protected right affording the right to a jury trial,
which can only be waived pursuant to statute. We agree." (See IN THE
MATTER OF J.T. No. 89,353. 965 P.2d 1007 (1998) OK CIV APP 131).

The case was decided on August 25, 1998 and a statewide mandate issued
September 24, 1998.

Oklahoma uses a jury of six people, five of whom must agree on a

verdict, according to Judge Murphy. The jury trials are closed to the
public.

In a recent discussion among lawyers and self-proclaimed "child

advocates," a state social services administrator expressed concern
that a jury trial would "violate confidentiality" because the jurors
would possibly have access to information in the department's file!

Even the group of seasoned family court personnel were stunned at the
statement. Nonetheless, Oklahoma's judge said that jurors are told not
to disclose details of the case to the public.

"Jurors at the beginning as well at the end of the case are admonished
not to discuss the case with anyone," Murphy said.

Michigan law is similar to Colorado's statute. Parties may demand a

jury at the adjudication stage of a dependency hearing.

"However, the jury then determines whether the child comes within the
jurisdiction of the court," said Tobin Miller of Michigan's judicial
branch.

Parents do not have a right to have a jury hear TPR proceedings in

Michigan, which are heard by a judge.

The state of Illinois is currently considering allowing parents the

right to a jury trial in child neglect/dependency matters. There is a
bill in the legislature providing for TPR hearings to be heard by
juries.

Concerned parents from other states should check their State

Constitutions for wording that provides a right to jury trial. In the
Oklahoma case, the appeals court cited Article 2, Section 19, of the
Oklahoma Constitution, which states, ". . . the right to a trial by
jury shall be and remain inviolate."

Yet Juvenile courts in Oklahoma, like most states, were routinely

denying motions for jury trials - even in those rare occurrences when
it dawned on the parents to ask.

Oklahoma Statute Title 12, O.S. 1991, Section 591 states:

"The trial by jury may be waived by the parties, in actions arising on

contract, and with the assent of the court in other actions, in the
following manner: By the consent of the party appearing, when the
other party fails to appear at the trial by himself or attorney. By
written consent, in person or by attorney, filed with the clerk. By
oral consent, in open court, entered on the journal."

In a line of reasoning important to parents of other states, the

Oklahoma Appeals Court cited federal case law (In Re: D.D.F. 801 P.2d
703, cert. denied, 500 U.S. 922 111 S.Ct.2027 (1991) in writing, "it
is fundamental that a parent has a constitutional right to trial by
jury in termination of parental rights proceedings." (See also
Oklahoma's case law cited; 3 A.E. v. State, 743 P. 2d. 1041).

The appeals court also ruled "the right to trial by jury is to be

liberally construed in favor of the party asserting such right,"
(citing Seymour v. Swart, 695 P.2d 509.) "The right cannot be
abrogated arbitrarily by a court but must be surrendered only by
voluntary consent or waiver," the Appeals Court ruled.