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TPR — Failure to assume parental responsibility: special verdict questions; instruction that lack of opportunity and ability is not a defense. Abandonment: Leave to amend petition

Dane County DHS v. John L.-B., 2013AP462, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

This decision rejects Dane County’s appeal from the dismissal of a TPR petition after a jury verdict in favor of the parent. Here’s the factual background:

Dane County filed a TPR petition against John L.-B. in January 2012, alleging failure to assume parental responsibility and six months of abandonment. (¶3). Shortly after the child, T.J., was born in 2007, the mother told John he was the father. (¶¶4, 11-12). While John had sexual intercourse with the mother, he doubted her assertion because she had lied to him about other things and had been having intercourse with other men. (¶¶11-12). John had limited contact with T.J. in the first few months after his birth, and he did not think T.J. looked like him. (¶12). John had no further indication he was the father till 2011, when he was in prison, where he received notice he might be T.J.’s father and was asked to submit to a DNA test. (¶13). He did so in January 2012, and in February 2012, a month after the petition was filed, he was identified as T.J.’s father. (¶13). He then made what limited efforts he could from prison to assume parental responsibility. (¶14).

The county moved for a directed verdict on the first question of the failure to assume special verdict, which asked “Did John [L.-B.] know or have reason to believe that he was [T.J.]’s father?”  The county argued the answer could only be “yes” because John testified he knew he was T.J.’s father as of February 2012. (¶15). The trial court denied the motion, and the jury answered the question “no.” (¶¶17, 22, 26). Having answered that question “no,” the jury did not answer the second question–whether John failed to assume parental responsibility–because the special verdict said to answer that question only if the answer to the first question was “yes.” (¶18). The jury also rejected the abandonment ground, finding John had established a “good cause” defense. (¶22).

The jury’s answer to the first special verdict question 

The court of appeals rejects the county’s argument that the verdict was perverse because the jury was instructed to answer the first question based on its findings as of the date of the fact finding hearing, and it could not be disputed that by the time of that hearing John knew he was the father. (¶28). The county’s argument incorrectly focuses on John’s knowledge at the time of the hearing, for it “makes little sense” (¶33) and is “illogical” (¶48) to believe the fact-finding hearing is the operative date for determining the parent’s knowledge or belief. The county also focuses on “an isolated part of the jury instructions.” (¶31). Applying State v. Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81, and distinguishing Tammy W.-G. v. Jacob T., 2011 WI 30, 333 Wis. 2d 273, 797 N.W.2d 854, the court holds:

¶37      …[U]nder Bobby G., the pertinent question in a case like John L.-B.’s is whether the parent fails to assume parental responsibility after the parent first knew or had reason to believe that he is the father.  Indeed, the jury here received an instruction essentially to this effect.  See Wis JI—Children 346A (“As of the time a man knows or has reason to believe he is the father of a child, he has a duty to assume parental responsibility for the[] child.”).  However, the Department ignores this instruction in its appellate arguments.

¶38      In the circuit court, the Department relied on Tammy W.-G. …. However, Tammy W.-G. did not involve any issue as to whether the father knew or had reason to believe he was the child’s parent.  See id., ¶4.  Rather, the case involved whether a parent who knew from the start that he was the child’s father had a substantial parental relationship with the child.  See id., ¶¶4-12, 32-35.  The Department provides no persuasive argument as to why Tammy W.-G. should be read as addressing the operative date for purposes of whether a parent knew or had reason to know he was the child’s father.

¶39      Accordingly, under Bobby G. and Tammy W.-G., in a case where a failure to assume responsibility is alleged and there is an issue as to when the parent knew or had reason to believe he was the child’s father, the primary inquiry for the fact finder is whether the parent failed to assume parental responsibility after the parent knew or had reason to believe he was the child’s father.  And, in deciding whether the parent failed to assume parental responsibility after the parent knew or had reason to believe he was the child’s father, the fact finder must consider the totality of facts revealed about what the father did or did not do up to the time of the fact-finding hearing.

While the jury was instructed that its answers “must reflect your findings as of today’s date,” it was also instructed to consider all the evidence on the issue of whether John had reason to believe he was the father, including evidence of events before the filing of the petition. (¶¶28, 40, 44). John testified to what he knew or had reason to believe about paternity in 2007 and the parties extensively argued that issue. (¶¶19-21, 43, 45). Given the applicable legal standard, the evidence and arguments in the case, and the instructions as a whole, the jury understood the first question  asked whether John knew or had reason to believe he was T.J.’s father in 2007, not in 2012. (¶¶41-46). And, viewed in the light most favorable to the jury’s verdict, Reuben v. Koppen, 2010 WI App 63, ¶19, 324 Wis. 2d 758, 784 N.W.2d 703, the evidence supports the jury’s answer to the first question. (¶48).

This issue arose under the pattern jury instruction and special verdict form, Wis. J.I.-Children 346A, which the parties agreed to use but which lack a date for when the parent knew or had reason to know his paternity. (¶¶5, 8). The court notes the pattern verdict form does not provide the jury with the option of making a finding as to a parent’s knowledge or reason to believe on more than one date; nor does it allow the jury the opportunity to reach Question 2 unless it answers “yes” to Question 1. (¶¶5, 42, 49). The upshot of these features is this:

¶49     ….[T]he jury does not reach the ultimate question of whether a parent failed to assume parental responsibility unless the jury first finds that the parent knew or had reason to believe he was the child’s father.  Here, as a consequence of the verdict form and the jury’s finding that John L.-B. did not know or have reason to believe he was T.J.’s father in 2007, the jury had no opportunity to make a finding as to whether John L.-B. failed to assume parental responsibility after he knew in February 2012 that he was T.J.’s father.

But the county made no argument there was reversible error based on the special verdict form (nor could it, having agreed to the form), so the court doesn’t decide whether the pattern instruction and verdict form are inadequate or incorrect. (Id.). Nonetheless, the court’s identification of the arguments not made suggests there may be problems in some cases with the pattern instruction and verdict form. So if you’re handling a case where the date of the father’s knowledge is an issue, you should consider the need to make appropriate changes.

Additional instruction on the lack of an opportunity or ability defense to failure to assume responsibility

The county also argued the circuit court should have given an additional instruction that “a parent’s lack of opportunity and ability to establish a substantial parental relationship is not a defense to failure to assume parental responsibility.” (¶51). The court of appeals disagrees, concluding the circuit court reasonably determined that language might have confused the jury:

¶60     John L.-B.’s case, like Bobby G., but unlike Tammy W.-G. and Ann M.M. [v. Rob S., 176 Wis. 2d 673, 500 N.W.2d 649 (1993)], involved an issue as to whether the parent knew or had reason to believe he was the child’s father.  The language that the Department proposed could have suggested the following erroneous proposition to the jury:  John L.-B.’s lack of knowledge or lack of reason to believe he was T.J.’s father in 2007 is not a defense to whether he failed to assume parental responsibility at that time.

Nor did the omission of the county’s proposed language mislead the jury into believing John’s imprisonment was a defense to failure to assume parental responsibility: “The jury received a separate, detailed instruction, based on Wis JI—Children 346B, which made apparent to the jury that the fact of John L.-B.’s imprisonment, along with the ways that imprisonment might limit his ability to provide care or support for T.J., was not dispositive in either direction, but rather a factor to be considered.  Once again, the Department’s arguments fail to address the jury instructions as a whole.” (¶61).

Denial of motion to amend petition 

Ten months after the petition was filed and ten days before the scheduled date for the fact-finding hearing, the county moved to amend the petition to change the time period of the alleged six-month abandonment. (¶65). By the time the trial court addressed the motion John’s attorney had already filed a brief for the fact-finding hearing addressing his history of imprisonment and had prepared for the hearing in reliance on the specific six-month time frame in the petition. (Id.). The court of appeals holds the circuit court properly exercised its discretion in denying the amendment after it considered the county’s arguments for amendment but concluded the amendment would be unfair to John. (¶¶66-71).


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