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TPR – Directed Verdict, Grounds – Abandonment

Dane Co. DHS v. Lee H., 2011AP1138, District 4, 12/8/11

court of appeals decision (1-judge, not for publication); for Lee H.: Theresa J. Schmieder; case activity

The trial court did not err in directing answers to special verdict questions with respect to two elements of grounds for terminating parental rights (existence of order containing TPR notice placing the child outside the parent’s home; failure to visit or communicate with child 3 months or longer). Directed verdict as to grounds is allowed, but “only where the evidence is so clear and convincing that a reasonable and impartial jury properly instructed could reach but one conclusion,” ¶10 (cites and quote marks omitted).

As to the first matter (order containing notice), trial counsel conceded that the trial court could direct the verdict question, ¶15, and the issue is therefore presently raised in the context of ineffective assistance of counsel. However, the postdisposition record shows the existence of the order and its receipt by Lee H., therefore he can’t satisfy the prejudice requirement of an IAC claim,  ¶¶22-25.

As to the second, Lee H. argues that he fell within the § 48.415(1)(b) contact-exemption, asserting that he had been “prohibited by judicial order from visiting or communicating with the child,” namely a rule of supervision (he was on ES at the time) that he have no contact with any minor “without prior agent approval” and an approved adult chaperone. Even if this rule was tantamount to a § 48.415(1)(b) “judicial order,” the argument fails, “because there is no evidence that the rule prohibited Lee H. from visiting or communicating with Isaiah H., and there is powerful evidence to the contrary that Lee H. decided not to pursue DOC approval and contact,” ¶30. Carla B. v. Timothy N., 228 Wis. 2d 695, 598 N.W.2d 924 (Ct. App. 1999), applied (parent can’t be penalized for failing to perform prohibited act; there, visitation conditioned on therapy, but parent quit seeing therapist, therefore couldn’t invoke the no-contact exemption), ¶¶31-35.


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