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Termination of dominatrix’s parental rights upheld despite jury instruction error

State . Michelle M., 2014ap1539, District 1; 1/27/15 (one-judge opinion; ineligible for publication); case activity

In this TPR case, a circuit court instructed a jury using the version of WIS JI-Children 346 that allows consideration of whether a mother has exposed her child to a hazardous living environment. The court should have given the prior version, which did not mention this consideration. According to the court of appeals, the jury could consider the point whether the instruction explicitly mentioned it or not.

This appeal boils down to Michelle’s alleged failure to assume parental responsibility per Wis. Stat. §48.415(6)(b). This failure can be shown many different ways. However, neither the statute nor the pattern jury instruction in effect at the time of Michelle’s trial mentioned “exposing the child to hazardous living environment.”  That did not trouble the court of appeals. Though it never mentioned “harmless error,” it did highlight substantial evidence suggesting Michelle’s failure to assume parental responsibilities, including a case worker’s testimony that Michelle has established a business as a “dominatrix.” The court reasoned that because the jury was required to evaluate the ‘totality of circumstances” under Tammy W-G v. Jacob T., 333 Wis. 2d 273, ¶22-23, it could have considered exposure to hazardous living conditions on its own even under the prior jury instruction.

The evidence in this case showed that Michelle failed to get her children to school regularly, failed to keep up with the children’s medical and dental appointments, failed to pay the electric bills, and failed to find fault in her parenting methods. Moreover, the evidence does not suggest that Michelle failed to assume parental responsibility because she was a domestic violence victim; rather, the evidence focused on Michelle’s actual parenting, the children’s actual conditions, and her failure to protect her children from exposure to violence. Therefore, even if the term “whether the parent exposed the child to a hazardous living environment” was not officially included in the jury instructions at the time of Michelle’s trial, the jury was not precluded from considering this factor when evaluating the totality of the circumstances. Michelle was not denied due process by the jury’s consideration of whether she exposed her children to a hazardous living environment, and the failure to assume parental responsibility ground was not unconstitutional as applied to her. Slip op. ¶15.

Apparently Michelle also alleged 60 instances of ineffective assistance of counsel. The court of appeals, acknowledging the jury heard some evidence it should not have, rejected all of the IAC claims on the grounds that Michelle was not prejudiced by her counsel’s performance. Citing the evidence showing Michelle’s failure to assume parental responsibility, the court concluded: “[E]ven if the objectionable evidence had been excluded, there is no reasonable probability that the jury would have reached a different verdict.” Slip op. ¶19.

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