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TPR – Sufficiency of Evidence; Oral Instructions: Timing; Counsel – Presence, Return of Verdict

Kevin G. v. Jennifer M. S., 2009AP1377, District 4, 8/17/11

court of appeals decision (1-judge, not for publication); for Jennifer M.S.: Susan E. Alesia, SPD, Madison Appellate; case activity

Evidence held sufficient to support termination for failure to assume parental responsibility, § 48.415(6)(a), applying “totality-of-the-circumstances test” where “the fact-finder should consider any support or care, or lack thereof, the parent provided the child throughout the child’s entire life,” Tammy W-G. v. Jacob T., 2011 WI 30, ¶3, 333 Wis. 2d 273, 797 N.W.2d 854.

Fact-intensive result, which makes broad lessons difficult if not impossible to draw. Perhaps it is just that efforts to assume responsibility don’t alone immunize against grounds if they may be seen as ineffectual (see ¶20 n. 5). The child was born 12/03, the petition filed 10/08. In the interim, Jennifer made efforts at parenting – she lived with the child the first 18 months – but the court deems them inadequate, ¶¶12-13. Jennifer’s subsequent involvement was highly episodic; she eventually ended up in prison for 18 months during which time she only wrote a few letters.

¶17      Based on the evidence and reasonable inferences from the evidence summarized above, a jury could have reasonably concluded that Jennifer did not have a substantial parental relationship with Dakota.  In the light most favorable to the verdict, the evidence shows that Jennifer, through her own choices, removed herself from most of Dakota’s life.  For example, when asked if she realized that selling the prescription medication was illegal and, if she were caught, it would cause her to “spend time away from [her] son” and to have “no contact,” she answered, “I had a feeling, yes.”  In addition, the jury could have reasonably believed that Jennifer realized her voluntary decision to move to a different town in August 2005 would result in sharply reduced contact with Dakota, since she did not have a car or a driver’s license.

¶18      And, even when in Dakota’s life, substantial evidence supports a finding that Jennifer’s care was inadequate to the point that she did not exercise “significant responsibility for the daily supervision, education, protection and care of the child.”  See Wis. Stat. § 48.415(6)(b). Beginning when Dakota was six months old, there is testimony based on which a jury could conclude that Jennifer did not exercise “significant” responsibility in that she “neglected … to provide care” for Dakota in various ways, including by failing to keep Dakota adequately clean, leading to health concerns.  See § 48.415(6)(b).  Based on this testimony, a jury could have reasonably inferred that Jennifer was also neglectful of Dakota for the first six months of his life.

Although the trial court orally instructed the jury before presentation of evidence, it failed to do so again, upon close of evidence. Assuming that this omission violated § 805.13(4), absence of objection forfeited the argument, ¶30. In any event, the error would be harmless, ¶¶31-35.

Counsel’s absence from the courtroom when the verdict was returned (the jury voted 11-1 in favor of grounds, but wasn’t polled) isn’t subject to the automatic reversal rule applied to the same sort of problem in criminal cases, ¶¶36-49, distinguishing State v. Behnke, 155 Wis. 2d 796, 806, 456 N.W.2d 610 (1990).

¶42      Here, there were twelve jurors and that, in turn, means any dissenter would not be the sole cause of a hung jury either because the dissenter would have company or the dissenter would not cause a hung jury.  For example, for a five-sixths verdict, it would not matter if, out of twelve jurors, one or two jurors found the termination ground was not satisfied.  Further, if two jurors believed that the ground was not satisfied, then a third determinative juror would already have other jurors that share his or her view.  This is different than the criminal context discussed in Behnke, where a verdict may turn on a single holdout juror with whom no other jurors agree, resulting in a coercive environment.

Separately, State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623 (denial of counsel in TPR is structural error) limited to “total denial of counsel”:

¶47      Further, it makes sense that Shirley E. would not contain a blanket “critical stage” rule in light of the case law.  For example, in State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, released approximately six months prior to Shirley E., the supreme court explained that “a harmless error analysis may apply to certain violations of the Sixth Amendment right to counsel,” even when such a violation occurs at a “critical stage.”  See Anderson, 291 Wis. 2d 673, ¶76.  Jennifer does not provide any support for the proposition that the statutory right to counsel in termination of parental rights proceedings is more extensive than the constitutional right to counsel in a criminal case.

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