By Gretchen Schuldt
An unwritten agreement made by a district attorney to forego criminal charges in a child abuse case in exchange for a couple's agreement to terminate parental rights is enforceable, the state Court of Appeals ruled Thursday.
The ruling by the three-judge District IV appellate panel affirms a decision by Juneau County Circuit Judge Stacy A. Smith dismissing with prejudice criminal charges brought against the couple after the district attorney's office changed hands.
The appellate panel, however, dodged the question of whether Smith correctly decided the case based on prosecutorial misconduct by former controversial Juneau County District Attorney Michael Solovey. Instead the panel, in a decision written by Appellate Judge Rachel Graham, held that the state, among other things, did not meet its burden to show the agreement was against public policy.
Graham was joined in her decision by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The couple, Debra and Steven Rippentrop, were each charged with multiple felonies related to child abuse they allegedly committed against their son around 2014 and 2015.
Law enforcement first got wind of potential abuse in January 2015, when the son, then 14, told law enforcement that he ran away because the Rippentrops were restraining him "24 hours a day seven days a week," Graham wrote.
The adult Rippentrops admitted it, but said they did so "as a desperate measure to prevent him from harming himself or others due to violent and destructive behavior," Graham said.
The issue was referred to Solovey for review, and the county began a child in need of protection or services (CHIPS) case. Solovey expressed some concern about A.B.'s credibility and whether a jury would believe his testimony.
The son, identified in the decision as "A.B.," ran away again later that year. He again reported abuse, and the county human services department placed him with other relatives, who eventually adopted him.
Solovey, who was aware of the CHIPS case, got together with Debra and Steven Rippentrop and their lawyer, Kerry Sullivan-Flock, and made an offer. Solovey would forego issuing criminal charges if the Rippentrops gave up parental rights and ended all contact with A.B., Graham said. The couple accepted.
Solovey said he was concerned that the CHIPS case could result in A.B. going back to their home, which Solovey believed was not in A.B.'s best interest.
Solovey notified law enforcement and attorneys in the corporation counsel's office of the agreement and later told the guardian ad litem representing A.B.'s interests.
He testified later that his decision was “ '[not] received well,' and that the office of corporation counsel was not happy about his decision to not charge the Rippentrops with criminal offenses," Graham wrote.
The Rippentrops began meeting their obligations under the agreement. They stopped contesting allegations in the CHIPS case and began pursuing voluntary termination of their parental rights.
Unhappy officials in the corporation counsel's office began a John Doe proceeding in early 2016 that the Rippentrops did not learn about for about three years. Solovey attended, but was not allowed to cross-examine witnesses or to testify.
After a two-day hearing, the John Doe judge appointed a special prosecutor to decide whether the Rippentrops should be charged. Solovey was allowed to make a statement after the judge ruled, but he did not tell the judge about the non-prosecution agreement. The corporation counsel's office also did not tell the judge of the agreement.
The Rippentrops signed TPR petitions in May, 2016, and it was approved. Solovey determined that the Rippentrops met all the agreed-upon conditions.
Solovey lost his reelection bid in 2016 and was replaced by Kevin Hamm.
In February, 2019, the state charged the Rippentrops with multiple felonies, including second-degree recklessly endangering safety, child abuse, false imprisonment, and causing mental harm to a child.
The Rippentrops, with new lawyers, demanded the state keep its agreement, but the DA's office fought back. It argued that the pact was "void as against public policy because it required the Rippentrops to terminate their parental rights."
While recognizing a contract with the state should be enforced, Smith found that "it was against public policy 'to make any arrangement that would terminate a [parent’s] rights by either a threat or some kind of contract such as this,' ” Graham wrote. "The court likened the agreement to the sale of a child, concluding that, much like it violates public policy to offer an expectant mother money for her unborn child, the nonprosecution agreement violates public policy because it offered the Rippentrops something of value in exchange for terminating their parental rights."
Smith also said that the Rippentrops did not have “clean hands” because they failed to disclose the agreement to the TPR court. Debra Rippentrop said later she did not mention it because she thought everyone knew about it.
A year later, the Rippentrops again moved to have the charges dismissed, this time arguing that Solovey committed prosecutorial misconduct by proposing the agreement. Smith granted the motion, finding that "Solovey's actions 'clearly' constituted 'misconduct' and that the only recourse for maintaining the integrity of the judicial system is dismissal of the criminal charges with prejudice."
The appeals panel upheld Smith's decision, but on a different basis — that the agreement was binding and enforceable.
"Wisconsin cases suggest that any prosecutorial promise — whether embodied in a nonprosecution agreement or an unexecuted plea agreement — may become binding if a party detrimentally relies upon it," Graham wrote. The State appears to acknowledge that the Rippentrops did just that, she said.
The appeals court also found that the state did not adequately show that the nonprosecution agreement was contrary to public policy.
The state appeared to argue that voluntarily agreeing to terminate parental rights was not truly voluntary if it was wrapped up in other considerations that include a safe harbor from criminal prosecution.
"Much like it does not violate public policy for a criminal defendant to enter into a plea agreement that induces the defendant to waive valuable rights in exchange for receiving the agreement’s benefits, the State does not persuade us that the provision in the nonprosecution agreement that required the Rippentrops to voluntarily terminate their parental rights violated any public policy clearly expressed by" law, Graham said.
They state also argued that neither Solovey nor the Rippentrops disclosed the agreement to court officials, suggesting it "amounted to a secret backroom deal that should not be enforced by any court."
Solovey, though, told law enforcement, the corporation counsel's office, and the guardian ad litem about the agreement, Graham said.
"Although the aforementioned individuals were not parties to the deal the Rippentrops struck with Solovey — indeed, it appears that they strenuously disapproved of its terms — they made no objection to receiving its benefits when the Rippentrops followed through with their promise to consent to the termination of their parental rights," Graham wrote.
"Although we need not weigh the policies in favor of enforcement, we note that the public policy in favor of enforcing the nonprosecution agreement is compelling," Graham said. "Generally speaking, public policy favors the enforcement of contracts. And here, substantive due process and principles of fundamental fairness render the enforcement of this prosecutorial promise even more compelling."
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