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Court of appeals affirms JNOV granted to mom in TPR case

Portage County DHHS v. Shannon M., 2014AP1259-1260, 10/2/14, District 4 (1-judge opinion, ineligible for publication); case activity

A jury found grounds–abandonment and continuing CHIPS–to terminate Shannon’s parental rights to her  children.  But the circuit court became worried that the jury might have viewed Shannon’s conduct very differently if it had known that the court had improperly entered a dispositional order against her, so it granted Shannon JNOV and dismissed the petitions to terminate her rights.  The Department appealed, and the court of appeals affirmed.

The problem here stemmed from the fact that the circuit court entered an order denying Shannon visitation and custody, which failed to comply with the notice and conditions for return requirements of §48.415(4) and §48.356.  She had not received notice that her visits were suspended, that custody of her children was to be transferred to the Department, or that she had to meet conditions for the return of her children.

On the subject of abandonment, the court of appeals held:

The Department essentially argues that the evidence was sufficient to sustain the jury’s verdict on the issue of abandonment.   However, in a motion for JNOV, the sufficiency of the evidence is not in dispute. See Management Computer Servs., Inc., 206 Wis. 2d at 177. The focus is instead on whether the movant should have judgment for reasons other than those decided by the jury. See Wis. Stat. § 805.14(5)(b). In this case, the September 2012 dispositional order and the circumstances surrounding the improper entry of that order may have had a negative effect on Shannon’s conduct following the order’s entry, and may have contributed to her abandonment of A.M. and T.M. within the meaning of Wis. Stat. § 48.415(1)(a)2.   The jury was not asked to decide what effect, if any, the order had on Shannon’s conduct. Accordingly, I agree with the circuit court that JNOV on the issue of abandonment was appropriate. Slip op. ¶11.

And on the subject of continuing CHIPS, the court of appeals similarly reasoned:

Furthermore, in order to establish grounds for termination under CHIPS, Wis. Stat. § 48.415(4), the parent must have been denied physical placement or visitation by a court order containing notice specified in Wis. Stat. § 48.356(1). See § 48.415(4)(a). The circuit court determined that the September 2012 dispositional order denying Shannon visitation with A.M. and T.M. failed to comply with the notice requirements, and the Department has not appealed the court’s ruling on that issue.     Because the order fails to comply with the statutory requirements, it cannot serve as the basis for termination of Shannon’s parental rights on the basis of continuing CHIPS. Accordingly, I agree with the circuit court that in this case that JNOV on the continuing CHIPS ground was also appropriate. Slip op. ¶11.

 

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