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Leaving messages with foster parents does not qualify as “communicating with a child” under TPR statute

Dane County DHS v. Hershula B., 2014AP2076, 2/26/15, District 4  (one-judge opinion, ineligible for publication); click here for docket

Hershula appealed an order terminating her parental rights. She argued that the trial court erred in directing a verdict on the abandonment issue because she presented evidence that she had communicated indirectly with her child. The court of appeals held that the phrase “communicate with the child” requires that the child share in the action of communicating with the parent. Slip op. ¶22. Indirect communications don’t count.

After spelling out the plain language interpretation of §48.415(1)(a)2’s communication requirement, the court of appeals affirmed the directed verdict for the County because:

Hershula testified that she did not talk to T. J., did not send cards or presents to T. J., did not write letters to T. J., did not text, Facetime or Skype with T. J., and did not have any communication with T. J. between May 1, 2012 and December 1, 2012.  The only “communication” that Hershula argues she had with T. J. during this time period was in the form of messages that she testified she left with the foster parents about T. J.  Hershula fails to point to any credible evidence that refutes the clear and convincing evidence showing that she failed to communicate with T. J., within the meaning of the statute, during the seven-month period between May 1, 2012 and December 1, 2012.  Therefore, I conclude that the circuit court did not err in directing the verdict on the question of whether Hershula failed to communicate with T. J. for a period of three months or longer. Slip op. ¶24.

The court of appeals also rejected Hershula’s claim for ineffective assistance of counsel due to her trial lawyer’s failure to: (a) object to a confusing jury instruction, and (b) include, in the period of abandonment, time where the County itself prohibited her from contacting her child. She lost on (a) because her case was tried to the court, not to a jury, and she conceded that the court was not likely misled by the instruction. Slip op. ¶26. She lost on (b) because the County did not “prohibit” her from contacting her child. It created a condition precedent that Hershula had to fulfill before she could contact her child, and she just didn’t do it. See Carla B. v. Timothy N., 228 Wis. 2d 695, 706, 598 N.W.2d 924 (Ct. App. 1999). Slip op. ¶35.

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