2005AP945 In re: The Termination of Parental Rights to Deannia D.

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“The petition alleged both that Lamont failed to assume parental responsibility for Deannia pursuant to Wis. Stat. § 48.415(6) (2003-04), and that he failed to visit or communicate with Deannia during a six-month period, resulting in her abandonment pursuant to § 48.415(1)(a)2. The State and the guardian ad litem contend that the trial court erred in denying their motions, and request that the trial court change the answer in the special verdict concerning the abandonment claim, and alternately, seek a new trial in the interest of justice on this ground.

“Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe that the State proved the six-month period of abandonment, the trial court’s refusal to change the verdict answer or to grant a new trial was not ‘clearly wrong.’ Consequently, we affirm….

“Thus, the trial court, as well as the jury, either found the State’s witnesses’ testimonies unpersuasive or insufficient, requiring them to guess at answers, or that the State failed to prove the six-month period, as they believed Elizabeth communicated with the child on Lamont’s behalf as late as December 10, 2002, and Lamont was denied visitation on June 4, 2003. In either event, the trial court concluded that the jury verdict should stand.”

Order affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Wedemeyer, P.J. “Lamont testified that he intended for Elizabeth to read the letters to Deannia. That intent, however, is insufficient to demonstrate actual contact between parent and child. It would result in an absurdity for this court to rule that a parent’s intentions about communication, instead of what actually happened, were sufficient. Attempts to communicate by the parent and a parent’s intentions can be used by the jury in answering subsequent questions on the verdict, including whether a parent demonstrated good cause for the failure to communicate. In other words, Lamont could use the letters and his intentions to show that although he did not have any contact with Deannia, he tried to have contact and Elizabeth was unable or unwilling to convey his communication to Deannia. The jury in this case, however, did not proceed to answer the remaining questions on the verdict as to whether Lamont had good cause for abandoning Deannia. I would reverse and remand this case with directions to the trial court to change the answer to special verdict question number three from ‘No’ to ‘Yes’ and for determination of the remaining special verdict questions, which address the issue of good cause.”

Dist I, Milwaukee County, Borowski, J., Curley, J.

Attorneys:

For Appellant: Deanna M. Weiss, Milwaukee

For Respondent: Duke J. Lehto, Milwaukee