Deannia D. Ex Rel. Weiss v. Lamont D.
Deannia D. Ex Rel. Weiss v. Lamont D.
Dissenting Opinion
¶ 21. (dissenting). I disagree with the conclusion reached by the majority for the reasons that follow. Here, the evidence, even viewed in a light most favorable to Lamont, reveals the following. Lamont admitted that he did not have any visits with Deannia from September 2001, through the time the petition was filed in June 2003. Thus, it is undis
¶ 22. Lamont admits that he did not communicate directly with Deannia. He did not speak with her on the phone and all of the letters/cards he wrote were sent to Elizabeth, with the intent that Elizabeth would read them to Deannia. The record demonstrates, however, that as of July 2002, Deannia did not reside with Elizabeth. Thus, between July 2002, and June 20, 2003, Lamont's "communications" were not sent to Deannia or a person who had custody of Deannia. Lamont admitted that he was informed of the fact that Deannia was removed from Elizabeth's home. He changed his story repeatedly as to when he was informed of her removal. The record unequivocally reveals, nonetheless, that, at the latest, he was notified in August or September 2002, that Deannia was removed from Elizabeth's home.
¶ 23. Lamont argues that despite the child's removal, Elizabeth could have shared the letters/cards with Deannia during supervised visits. The record, however, conclusively refutes this contention. First, the social worker who attended the supervised visits testified that Deannia never mentioned Lamont, his letters, or his queries about Deannia. The social worker testified that she would be required to make copies of any letters or cards that Elizabeth read to, or shared with, Deannia. No copies were ever made. Second, the record reflects that December 10, 2002, was the last time Elizabeth had a visit with Deannia.
¶ 25. 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. A parent could write to any friend or relative who had no contact with the child, with the intent that the communication would be passed on to the child.
¶ 26. 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 num
¶ 27. For these reasons, I respectfully dissent.
Opinion of the Court
¶ 1. The State of Wisconsin and the guardian ad litem for the child, Deannia D., the subject of this termination petition, appeal the trial court's order dismissing the termination of parental rights petition brought against Lamont D., the father of Deannia. The dismissal occurred after a jury found that the State failed to prove either of two grounds alleged in the petition that would have permitted a termination of Lamont's parental rights to Deannia.
I. Background.
¶ 2. Deannia was born on February 2, 2001. At the time of her birth, her parents, Elizabeth E. and Lamont, while not married, were living together. Several months after Deannia's birth, Lamont was arrested and then imprisoned. After Lamont went to prison, Deannia remained in the care of her mother. Lamont last saw Deannia while he was incarcerated at the Milwaukee County Jail in September 2001. Lamont, who was subsequently transferred to the Prairie Du Chien Correctional Facility and then to the Green Bay Correctional Facility, testified that while he was incarcerated, he wrote letters to both Deannia and Elizabeth, all of which he sent to Elizabeth. Due to Elizabeth's drug and mental health problems, Deannia
¶ 3. Shortly thereafter, on June 20, 2003, the State filed a petition seeking to terminate the parental rights of both Elizabeth and Lamont to Deannia on grounds of failure to assume parental responsibility and abandonment. After several mistrials were declared and after Elizabeth agreed that grounds existed to terminate her parental rights to Deannia, a jury determined that grounds did not exist to terminate Lamont's parental rights on either ground alleged by the State.
¶ 4. At trial, Lamont testified that he had a substantial parental relationship with Deannia before he was incarcerated, as he was living with her mother when she was born, and purchased things for her. He
¶ 5. One of Deannia's foster mothers, and several paid workers who supervised Elizabeth's visits with Deannia, testified that while supervising the visits, they never saw her with any letters or correspondence from Lamont. Elizabeth did not testify. The supervising social worker also disputed Lamont's version. She claimed she faxed the notice of Deannia's detention hearing to him in prison, and recalled that she gave him her business card, containing her name and contact information, while at a court appearance for another child in December 2003, and that she initiated contact with Lamont after his release. Additionally, the State and the guardian ad litem suggested to the jury that the language and content of the letters sent by Lamont were inappropriate for a child of Deannia's age.
¶ 6. On the first ground, the jury found that Lamont did not fail to assume parental responsibility for Deannia. On the second ground, the jury found that Lamont had left Deannia with another person and he either knew or could have discovered his daughter's whereabouts. Having made those two findings, the jury then found that Lamont did not fail to visit or communicate with Deannia for a period of six months or longer.
¶ 7. Following the jury verdict, both the State and the guardian ad litem, in separate motions, sought to have the trial court change the answer to the question concerning whether Lamont failed to visit or communicate with Deannia, and, in the alternative, sought a new trial in the interest of justice. The trial court denied both motions and dismissed the petition for the termination of Lamont's parental rights to Deannia. The State and the guardian ad litem have jointly appealed this decision.
II. Analysis.
¶ 8. The State and the guardian ad litem argue that the trial court erred in denying their motions seeking either a change in the jury's answer to the question whether Lamont failed to visit or communicate with Deannia for six months or longer, and in denying their motions seeking a new trial in the interest of justice. They point to the fact that Lamont had no face-to-face visits or telephone contact with Deannia after September 2001, and that the social worker assigned to Deannia's case during the alleged abandonment period received no communication from Lamont after she sent him paperwork concerning Deannia's detention. Further, they point to the testimony of the social worker who said that Lamont did not contact her, despite her requests that he do so, until after he was released. The social worker also claimed that Lamont
¶ 9. We give significant deference to jury verdicts on appeal, and may not overturn them "if there is any credible evidence" that supports what the jury has found, giving to the jury's finding every reasonable supporting inference. State v. Quinsanna D., 2002 WI App 318, ¶ 30, 259 Wis. 2d 429, 655 N.W.2d 752. Stated differently, the standard of review on a sufficiency of evidence claim is that this court will not overturn a verdict if there is any credible evidence that under any reasonable view will sustain the jury's finding. Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979). When there is any credible evidence to support a jury's verdict, "even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict. . . must stand." Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389-90, 541 N.W.2d 753 (1995) (citation and internal quotations omitted).
¶ 10. An appellate court should not overturn a trial court's decision to dismiss for insufficient evidence unless the record reveals that the circuit court was
¶ 11. With regard to the State's and the guardian ad litem's request for a new trial in the interest of justice, under Wis. Stat. § 805.15(1), a trial court may set aside a jury verdict and order a new trial in the interest of justice. We accord "great deference" to the trial court's exercise of discretion under this subsection. Sievert v. American Fam. Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 75 (Ct. App. 1993), aff'd, 190 Wis. 2d 623, 528 N.W.2d 413 (1995). We apply great deference "because the order is itself discretionary, and the trial court is in the best position to observe and evaluate the evidence." Id. This "interest of justice" standard encompasses the same grounds as contained in Wis. Stat. § 752.35, including the authority to reverse when errors have prevented the real controversy from being fully tried. State v. Harp, 161 Wis. 2d 773, 779, 469 N.W.2d 210 (Ct. App. 1991).
¶ 12. Here, the jury was instructed that the State had the burden of proving all questions to a reasonable certainty:
Burden of proof. The burden of proof as to all questions in the verdict forms is upon the petitioner, State of Wisconsin. The burden of proof is to satisfy you*495 to a reasonable certainty by evidence that is clear, satisfactory, and convincing that "yes" should be the answer to each question in the verdicts. Clear, satisfactory, and convincing evidence is evidence which, when weighed against evidence opposed to it, clearly has more convincing power. It is evidence which satisfies and convinces you that "yes" should be the answer because of its greater weight and more convincing power.
This burden is known as the middle burden. The evidence required to meet this burden of proof must be greater than merely the greater weight of the credible evidence but less than beyond a reasonable doubt. If you have to guess what the answer should be after discussing all of the evidence which relates to a particular question, then the party having the burden of proof as to that question has not met the required burden.
Additionally, the jury was told, with respect to question three - the answer to which the guardian ad litem and the State wish changed:
Before Question 3 may be answered "yes," the petitioner must prove that Lamont. .. failed to visit or communicate with Deannia... for a period of six months or longer. This means that Lamont... did not visit and did not communicate with Deannia ... for six months or longer.
Incidental contact between Lamont. . . and Dean-nia ... does not prohibit you from finding that he failed to visit or communicate for the required period. Incidental contact means insignificant contact or contact which occurred merely by chance.
In calculating the period during which visitation did not occur, you should not include any periods during which Lamont. .. was prohibited by a judicial order from visiting with Deannia....
¶ 14. The jury also heard that although Lamont's reading and writing skills were poor, indeed, he was eligible for social security benefits because of a learning disability, while in prison, he did manage to write and send letters and cards to Deannia and her mother every day except Sunday. He explained that the language he used in his letters, which the State and the guardian ad litem claimed was inappropriate, was the only language he knew, as he was incapable of looking up words in the dictionary.
¶ 15. There is no dispute that Lamont attempted to communicate with his daughter by writing her and her mother many letters, in which he asked how Deannia was doing and "talked" to Deannia. Given the young age of his daughter, it would have been impossible for him to write to her directly and expect her to retrieve the letters and read them herself. Clearly, he was dependent on third parties for his communications to reach his daughter. One of the major issues in this case is whether any of Lamont's attempts were successful.
¶ 16. The State and the guardian ad litem maintain that there were no communications made on behalf of Lamont via Elizabeth. They point to the testimony of the foster mother and two workers who supervised Elizabeth’s visits, all of whom claimed Elizabeth never brought any letters to her visits, and could not recall Elizabeth ever discussing Lamont with Deannia. However, since Elizabeth did not testify, the jury never had the benefit of hearing exactly what Elizabeth communicated to Deannia up until December 10, 2002, the beginning of the six-month period of abandonment alleged by the State. The jury could reasonably have
¶ 17. There is another possibility that supports the jury's verdict. It deals with Lamont's contact with the social worker following his release. The social worker claimed she had to contact Lamont's mother to obtain his address. Lamont testified that he called the social worker two days after his release after getting her number from Elizabeth. He admitted that he missed at least one appointment, but referenced the June 4, 2003, meeting, and although he could not recall the exact date, he testified that he met with the social worker at her office and asked her if he could visit with his daughter. He told the jury that his request was denied because the social worker wanted him to complete an alcohol and drug assessment and to attend anger management classes before any visits would be scheduled. If the jury determined that Lamont communicated with Deannia via Elizabeth, and that on June 4, 2003, Lamont asked for visitation but was prevented from doing so by the social worker, by virtue of the detention order, the jury could properly answer question three —
In calculating the period during which visitation did not occur, you should not include any periods during which Lamont.. . was prohibited by a judicial order from visiting with Deannia ....
Inasmuch as the social worker had the power, under the detention order, to prevent visitation, this period would not be included in the six months, and the State would then fall short of the six-month minimum time period needed to prove abandonment. The trial court heard all of this testimony and evaluated the credibility of the witnesses. The trial court, while not specifically delineating what evidence it took into account, determined that credible evidence for the jury's verdict existed, and reasoned that the jury could properly come to the decision it did.
¶ 18. 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 found 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.
¶ 19. We are not oblivious to the many contradictions in Lamont's testimony, and we observe that the jury's verdict might not have been our verdict. However, the first step in a termination of parental rights proceeding is the fact-finding hearing "to determine whether grounds exist for the termination of parental
¶ 20. In reaching our conclusion that the trial court's holding should be affirmed, we note that the consequences of termination are profound, id., ¶ 23, as " 'termination of parental rights' means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed," Wis. Stat. § 48.40(2). Additionally, "[b]ecause termination of parental rights interferes with a fundamental liberty interest, we apply strict scrutiny and require the state to show that termination is narrowly tailored to serve a compelling state interest." Monroe County DHS v. Kelli B., 2003 WI App 88, ¶ 8, 263 Wis. 2d 413, 662 N.W.2d 360, aff'd, 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831. As required, we give the trial court's decision substantial deference and conclude the trial court was not "clearly wrong" in refusing the State's and the guardian ad litem's requests. See Helmbrecht, 122 Wis. 2d at 110. Therefore, we affirm.
By the Court. — Order affirmed.
On the court's own motion, this case was converted to a three-judge panel on July 15, 2005.
A termination of parental rights proceeding is a bifurcated process. A jury determines whether the State has proved the grounds for the termination alleged in the petition, and if the State is successful, the trial court determines the appropriate disposition. See Wis. Stat. § 48.424.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont's contention. Wisconsin Stat. § 48.235(7) plainly states that the guardian ad litem "may appeal, may participate in an appeal or may do neither." This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State's interests are aligned with those of the guardian ad litem.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.