On Point

State v. Tammy S. Camden, 2012AP1451, District 4, 5/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court concluded a driver’s speeding was legally justified after accepting her testimony that she exceeded the speed limit in order to get away from a vehicle following in close proximity and copying her every move. The court of appeals reverses, concluding the defense of legal justification or “necessity” is unavailable under State v. Brown, 107 Wis. 2d 44, 55, 318 N.W.2d 506 (1982), which recognized legal justification as a defense to a speeding charge, but only when the speeding was caused by the actions of a law enforcement officer:

¶7        In Wisconsin, the supreme court is the law-developing, or policy making court. See State v. Schumacher, 144 Wis. 2d 388, 405-07, 424 N.W.2d 672 (1988). The court of appeals, in contrast, is mainly an error correcting court. Id. Although this court has a role in developing the law as it exists, it cannot declare new law. Id. Instead, “[W]e are duty-bound to apply the law as it presently exists.” Thomas ex rel. Gramling v. Mallett, 2004 WI App 131, ¶20, 275 Wis. 2d 377, 685 N.W.2d 791, aff’d in part and rev’d in part on other grounds, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523.

¶8        Extending the “legal justification” defense established in Brown to include causes other than law enforcement officers would be incompatible with the error-correcting function of this court. Accordingly, because the supreme court has not extended the defense of necessity to apply to civil forfeiture actions for speeding if the cause is someone or something other than a law enforcement officer, I conclude that the circuit court erred in determining that it applied in this case.  The judgment of the circuit court is therefore reversed….

Langlade County DSS v. Michael P., 2013AP385, 2013AP386, & 2013AP387, District 3, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP385; 2013AP386; 2013AP387

Sufficiency of evidence

Based on the entire record of the fact-finding hearing, the court of appeals concludes there was sufficient evidence that Michael P. failed to assume parental responsibility, despite his testimony tending to show he did assume responsibility:

¶26      …[I]t is clear that Michael did not have a “substantial parental relationship” with his children over the course of their lives. See Wis. Stat. § 48.415(6)(a).  Although Michael did testify that he cared for his children when they lived in Beloit, always called and asked about his children when they lived with [their mother] in Antigo, and was hindered by the County in getting the children placed with him and visiting them, this self-serving testimony does not mean insufficient evidence supported the jury’s verdict. The jury is the arbiter of witness credibility and was free to reject Michael’s account and accept opposing evidence. …. Based on the record, we conclude the evidence sufficiently supports the jury’s determination that Michael failed to assume parental responsibility.

Constitutionality of failure to assume ground as applied

The court concludes the ground of failure to assume was not unconstitutional as applied to Michael, rejecting his argument that the County prevented him from assuming parental responsibility and then petitioned to terminate his parental rights on that basis reliance, and distinguishing Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845:

¶31      ….  Unlike the impossible housing condition imposed on the mother in Jodie W., nothing in the record indicates the County or the CHIPS orders made it impossible for Michael to “accept[] and exercise … significant responsibility for the daily supervision, education, protection and care of the child[ren].”  See Wis. Stat. § 48.415(6)(b).

¶32      Rather, the evidence presented at trial shows the County actively encouraged and tried to assist Michael in assuming parental responsibility. …. Despite the County’s efforts, Michael had only sporadic contact with his children.  That Michael did not sufficiently maintain contact with his children while they were in the County’s care does not mean the County prevented him from assuming parental responsibility.

¶33      Further, contrary to Michael’s suggestion, this is not a case where the only evidence of a parent’s failure to assume parental responsibility occurred after the children were placed in the County’s care.  The evidence at trial showed that even before the children were removed from [their mother’s] care, Michael did not accept or exercise significant responsibility for them.  We conclude the failure to assume parental responsibility ground is not unconstitutional as applied to Michael.

State v. Marquese H., 2013AP565, 2013AP566, & 2013AP567, District 1, 5/21/13; court of appeals decision (1-judge, ineligible for publication); case activity: 2013AP565; 2013AP566; 2013AP567

The circuit court properly exercised its discretion in terminating Marquese H.’s parental rights because it considered the factors under § 48.426(1). The court rejects Marquese’s specific claim that the circuit court erred because, under § 48.426(1)(c) and Darryl T.-H. v. Margaret H., 2000 WI 42, ¶21, 234 Wis. 2d 606, 610 N.W.2d 475, it was required to consider the potentially adverse consequences of severing the family bond between his children and him and his family. “[T]he circuit court did that here,” as it found there was no longer a substantial relationship between Marquese H. and his children and no evidence of a substantial relationship between the children and Marquese H.’s family. (¶¶3-4).

Loren H. Laufman v. North Central Power Co., Inc., 2012AP2116, District 3 (per curiam; not eligible for publication or citation).

Normally, On Point would not trouble its readers with a per curiam decision involving insurance coverage issues.  This one, however, penalizes parties for violations of Wisconsin’s Rules of Appellate Procedure, so appellate lawyers of all stripes should pay attention.  Skipping over the substantive insurance issues, here’s what you need should know:

1.  Present “developed” arguments.

The brief filed by North Central (the appellant in this case) apparently failed to explain how an event constituted a wrongful act under the insurance policy at issue.  So the court of appeals said: “We may therefore reject North Central’s argument. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (‘We will not decide issues that are not, or inadequately, briefed.’).” ¶9

The court means business. To the detriment of clients, it has invoked this principle in a number of recent decisions.  Click here. So what exactly is an “inadequately briefed” or “insufficiently developed” argument?   State v. Pettit, 171 Wis. 2d 627, 646, 429 N.W.2d 633 (Ct. App. 1992) provides some examples:  (1) undeveloped themes that don’t reflect any legal reasoning; (2) arguments supported only by general statements; (3) arguments unsupported by references to legal authority; and (4) arguments the court itself would have to develop in order to decide.  Maybe the court deserves some sympathy:

We sometimes (perhaps too often) make allowances for appellate counsel’s failure to abide by these rules. However, the Court of Appeals of Wisconsin is a fast-paced, high-volume court. There are limits beyond which we cannot go in overlooking these kinds of failings. [Appellant’s] brief is so lacking in organization and substance that for us to decide his issues, we would first have to develop them. We cannot serve as both advocate and judge.  Id., at 647.

2.  Address the circuit court’s rationale.

North Central also failed to address the circuit court’s rationale for its decision–a big mistake, said the court of appeals: “When an appellant ignores the ground upon which the trial court ruled, it thereby concedes the validity of that holding. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).  Thus, we further reject North Central’s straw-person argument as to what constituted the wrongful act.” Slip op.,  ¶10

3.  Refer to parties by name and double check the accuracy of record cites.

Respondent Safeco Insurance Co., one of North Central’s insurers, prevailed on appeal but not without a muddy face.  Its briefs referred to the parties by designation, rather than name.  Plus, according to the court, it misrepresented the record by making assertions about what the circuit court found and what a party intended, while citing only to allegations in the complaint. “Safeco’s misrepresentations and improper citations violate WIS. STAT. RULE 809.19(1)(e), (3)(a)2. As a penalty for its violations of the rules of appellate procedure, Safeco shall forfeit its appellate costs. See WIS. STAT. RULE 809.83(2).”  Id., ¶13

Keep in mind that the parties are prohibited from using full names where the record is confidential and discouraged from using full names where the case involves the victim of a sensitive crime. See State v. Larry Wright, fn. 1.

4.  File an appendix that’s not too fat, not too thin, but just the right size.

The other prevailing respondent, St. Paul Fire and Marine Insurance Co., suffered a similar fate for filing a “corpulent” appendix:

¶18 Although it is a prevailing party, St. Paul shall not recover any WIS. STAT. RULE 809.25(1) appellate costs. St. Paul filed a three-volume, 845-page appendix. Pages 17-845 consist solely of the three policies it issued to North Central for the 2000-01, 2001-02, and 2002-03 policy years . . . St. Paul’s appendix was largely redundant, and unnecessary. Fourth, St. Paul’s counsel signed the appendix certification, representing that it had complied with the rule for appendices. See WIS. STAT. RULE 809.19(2)(b), (3)(b); State v. Bons, 2007 WI App 124, ¶¶23-25, 301 Wis. 2d 227, 731 N.W.2d 367 (failure of an appendix to comport with the certification is a serious infraction and is grounds for imposition of a penalty). An appendix is to be “short” and include “limited portions of the record essential to an understanding of the issues raised.” WIS. STAT. RULE 809.19(2)(b); see also State v. Nielsen, 2011 WI 94, ¶11, 337 Wis. 2d 302, 805 N.W.2d 353 (appendix should be “a very abbreviated document with only those items absolutely essential to an understanding of the case”). An irrelevant, redundant, 800-plus page appendix is inappropriate and does not aid the court in any manner. [9]

fn.9 While we make no assumptions, the only purpose of St. Paul’s appendix that we can imagine would be to unnecessarily drive up costs. In any event, it would have had that effect. Had we chosen to overlook St. Paul’s excessive appendix, St. Paul would have recovered $1,616.55 in costs from North Central, just from preparation of the appendices alone (829 pages x .15/page x 13 required copies). See WIS. STAT. RULES 809.19(8)(a)2., 809.25(1)(b)1.

The reference to Nielsen is noteworthy. There, the court of appeals sanctioned an attorney for filing a skimpy appendix.  On review, the Wisconsin Supreme Court “suggested” that before sanctioning counsel for filing a non-compliant appendix, the court of appeals should issue a separate order to show cause, which directs the attorney to explain why a violation of 809.19(2)(a)&(b) should not be found and why the attorney should not have to pay the sanction to the court of appeals.  Nielsen, ¶33.  Here, however, the court of appeals did not issue an order to show cause before sanctioning either St. Paul or Safeco, which suggests that Nielsen’s “suggestion” can and will be ignored.   The court of appeals’ quirky sanction (the preemptive denial of costs) is especially troubling.  Presumably, the attorneys wrote the briefs, assembled the appendices, and signed the false certifications.  However, clients, not the attorneys, recover costs on appeal.  Thus, the clients, not the attorneys, have been sanctioned for the rules violations in this case.  Oops?

Question presented:

Proper interpretation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), specifically whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Lower court opinion: People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (Cal. Ct. App. 2012)

Docket

Scotusblog page

Clarification of Randolph is clearly warranted, as lower courts have split into two camps on the question presented:

Courts in the first camp have held that if a tenant who objects to a search is later arrested and removed from the premises, his or her objection remains in force, and is not overridden by the consent of a still-present co-tenant. E.g., United States v. Murphy, 516 F.3d 1117, 1124-25 (9th Cir. 2008) [although the result in this case may be no more than an application of Randolph‘s suggestion, 547 U.S. at 121, that a pretextual arrest to remove the objecting c0-tenant could invalidate another co-tenant’s consent: see United States v. Brown, 563 F.3d 410, 417 (9th Cir. 2009)]; Richardson v. City of Antioch, 722 F.Supp.2d 1133, 1140-41 (N.D. Cal. 2010); Martin v. United States, 952 A.2d 181, 187-88 (D.C. 2008); State v. Caster, 234 P.3d 1087, 1097 (Or. App. 2010).

Courts in the second camp have held that after the objecting tenant is arrested and removed, a co-tenant’s consent to a search overrides the absent tenant’s objection. E.g., United States v. Henderson, 536 F.3d 776 (7th Cir. 2008); United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc).

Fernandez’s cert petition and California’s statement in opposition both put Wisconsin in the second camp, citing State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858. But note that St. Martin is factually different than Fernandez. Fernandez objected to the police entry at the door, and it was only after he was arrested and removed from the scene that the co-tenant consented to a search. 208 Cal. App. 4th at 106. St. Martin, by contrast, did not object when his co-tenant initially let the police into the home; instead, after he was arrested and after his the co-tenant had already consented to a search, though while he was still at the scene, sitting in a police van, he refused consent. 334 Wis. 2d 290, ¶¶9, 22-23. That he was merely “at the scene” (in custody in the police van) as opposed to on the threshold when he objected was not enough to make him “present” for purposes of Randolph in the view of the majority which, as discussed in detail here, read Randolph to require the co-tenant to object at the threshold of the door to the house. 334 Wis. 2d 290, ¶¶20-27.

The reasoning and result in this sort of case often turns on slight variations in the facts, and these factual differences mean the Court’s decision here may or may not affect St. Martin‘s parsimonious reading of Randolph. Either way, though, the decision will clarify an important question left unresolved by Randolph.

Update (11/7/13): Readers following this issue might be interested in this post by Orin Kerr and Rory Little’s response to Kerr.

Further update (11/17/13): And here’s Rory Little’s post about the oral argument held on 11/13/13.

Linda Metrish, Warden v. Burt Lancaster, USSC 12-547, 5/20/13

United States Supreme Court decision, reversing Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012)

In a unanimous opinion issued only a month after oral argument, the Supreme Court holds that a state prisoner is not entitled to federal habeas relief based on the retroactive application of a state supreme court decision holding there is no diminished capacity defense under state law.

Michigan’s intermediate appellate courts had repeatedly recognized the diminished capacity defense before Lancaster committed the crime in this case, and he had raised the defense in his first trial in 1994. He won a new trial, but by the time he was retried in 2005 the state supreme court had decided that the defense was precluded under statutes enacted in 1975, well before Lancaster’s conduct. (Slip op. at 2-3, 8-11). Thus, Lancaster was not allowed to raise the defense at his retrial. (Slip op. at 3). After unsuccessful state appeals, Lancaster was granted habeas relief by the Sixth Circuit Court of Appeals. (Slip op. at 3-4). That court held the retroactive application of the state supreme court’s decision violated due process, relying on Rogers v. Tennessee, 532 U.S. 451 (2001), and Bouie v. City of Columbia, 378 U.S. 347 (1964).

The Supreme Court now holds that the retroactive application of the decision abrogating the defense was not, as required under AEDPA, an unreasonable application of clearly established Supreme Court precedent:

This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.” Rogers, 532 U. S., at 462 (internal quotation marks omitted). Lancaster therefore is not entitled to federal habeas relief on his due process claim. (Slip op. at 15).

The result here isn’t too surprising, given both the high hurdle erected by AEDPA and the paucity of clear precedent from the Court about retroactive application of state court interpretations of statutory language that affect the coverage of, or defenses to, state criminal statutes. The Court’s application of the habeas standards do not establish any new rule or doctrine, nor does the Court shed any real light on the central substantive issue of retroactive application of state court decisions–no doubt because the case came to the Court as a habeas grant, and habeas is about the application of clearly established law, not establishment of the law itself. The Court does, however, discuss Rogers  and Bouie, two key decisions on retroactive application of new interpretation of state statutes. (Slip op. at 5). That discussion (slip op. at 13-14) may give some slight guidance for dealing with this issue in the future.

In Bouie, the defendants were convicted under the state supreme court’s expansive new interpretation of a trespass statute in a case decided after the defendants were arrested. 378 U.S. at 348-50. Stressing that the interpretation of the statue was “clearly at variance with the statutory language” and “ha[d] not the slightest support” in prior court decisions, the Court held that applying “an unforeseeable and retroactive judicial expansion of narrow and precise statutory language” to the defendants prior conduct violated Due Process. Id. at 352, 355-56. In Rogers, by contrast, the abolition of the “year and a day” rule was not “unexpected and indefensible” in light of the law in effect prior to the defendant’s conduct because the the rule was “widely viewed as an outdated relic of the common law” and had been “legislatively or judicially abolished in the vast majority of jurisdictions that had addressed the issue.” 532 U.S. at 462-63. Also, the rule had “only the most tenuous foothold” in the state, having been mentioned in dicta in only three cases. 532 U.S. at 464.

This case falls between Bouie and Rogers. The Court says it “is a far cry from Bouie,” which involved an unexpected expansion of “narrow and precise statutory language” that, as written, did not reach the petitioners’ conduct; by contrast, the decision applied to Lancaster reasonably disapproved lower-court precedent recognizing a defense the state supreme court found to lack statutory grounding after a “close inspection” of “a comprehensive, on-point statute.” (Slip op. at 13). At the same time, Lancaster’s claim “is arguably less weak” than the one in Rogers because the diminished capacity defense is not an outdated, widely rejected common law relic, but was recognized repeatedly by the state’s lower appellate courts and in the state’s pattern jury instructions. (Slip op. at 13-14). Maybe those factors would have been more compelling in a direct appeal to the Court, but they are not sufficient to warrant federal habeas relief under 28 U. S. C. §2254(d)(1)’s demanding standard.

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).