2013 Wis. L. Rev. 1039 (2013)
Judge or Jury: How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases

handle is hein.journals/wlr2013 and id is 1061 raw text is: COMMENT

JUDGE OR JURY? HOW BEST TO PRESERVE DUE
PROCESS IN WISCONSIN TERMINATION OF
PARENTAL RIGHTS CASES
GARY BLOODWORTH*
The right to parent one's own child is a fundamental right that requires
due process protection from government interference. Since 1979, the
Wisconsin Children's Code has provided parents involved in termination of
parental rights cases with the right to a jury trial as a way to safeguard their
due process rights. In the 2013-14 Session, the Wisconsin Legislature will
consider a bill that seeks to eliminate a parent's right to a jury trial in
termination of parental rights cases. Proponents of this change argue that jury
trials are not in the best interest of the child because they delay permanency
for children and that jury trials are more expensive.
This Comment argues that the right to a jury trial in termination of
parental rights cases should be preserved in Wisconsin because it provides
parents with an important due process safeguard. It analyzes the importance
of jury trials in the termination of parental rights context using the
three-factor test established in Mathews v. Eldridge, concluding that these
factors weigh in favor of preserving a parent's right to a jury trial. In doing
so, it addresses the claims that jury trials delay permanency and are more
expensive. Finally, it suggests alternative solutions that achieve timely
permanency for children and reduce administrative costs without eliminating
an important procedural protection.
Introduction  ......................................................................................... 1040
I. Analyzing Due Process in Termination of Parental Rights Cases ... 1042
A. The Supreme Court Analysis ............................................... 1043
B. Involuntary Termination of Parental Rights in Wisconsin.. 1046
C. Adoption and Safe Families Act of 1997 ............................. 1048
D. Proposed Legislation in Wisconsin ..................................... 1049
II. Achieving Due Process in Termination of Parental Rights Cases.. 1050
A. The Jury Trial Is an Important Procedural Safeguard in
Termination of Parental Rights Proceedings ..................... 1050
1. The Three-Factor Test of Eldridge Favors the Right to
a Jury  Trial in  W isconsin  ............................................ 1051
a. The Private Interest Affected Favors the Right to a
Jury  T rial ............................................................... 1051
*     J.D. Candidate, University of Wisconsin Law   School, 2014; B.A.,
University of Pittsburgh, 2007. I would like to thank Assistant Public Defender Ben
Gonring, Professor Leslie Shear, and my Senior Note & Comment Editor Monica Mark
for their support and assistance with this Comment.

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