S. S. v. A. S.-P.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 23, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2532 Cir. Ct. No. 2019TP19

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE TERMINATION OF PARENTAL RIGHTS TO L. L. S.-P., A PERSON UNDER
THE AGE OF 18:

S. S. AND L. S.,

PETITIONERS-RESPONDENTS,

V.

A. S.-P.,

RESPONDENT-APPELLANT,

M. P.,

RESPONDENT.

APPEAL from orders of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz, and Gill, JJ.
No. 2024AP2532

¶1 STARK, P.J.1 Amanda appeals orders terminating her parental
rights to her daughter, Lauren, and denying her postdisposition motion.2 Lauren’s
guardians filed a petition for termination of Amanda’s parental rights (TPR),
alleging, as relevant to this appeal, that Amanda abandoned Lauren during two
specific six-month periods. The matter was tried to a twelve-person jury, which
was instructed that there were two abandonment periods at issue, but it was not
instructed that it should separately consider each period of abandonment when
answering the verdict questions. The jury found that Amanda had abandoned
Lauren, but the verdict form did not permit the jurors to specify the period or
periods of abandonment on which they agreed. Amanda therefore argues that she
was deprived of her statutory and constitutional rights to a verdict by five-sixths of

1
Pursuant to WIS. STAT. § 752.31 (2023-24), cases under WIS. STAT. ch. 48 (2023-24)
are decided by one judge. However, upon reviewing the briefs in this matter, this court
determined that an issue raised by the appellant warranted consideration by three judges and
subsequently sua sponte ordered that this case be decided by three judges. See WIS. STAT.
RULE 809.41(3) (2023-24).

All references to the Wisconsin Statutes are to the 2023-24 version.

Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be taken
in an order that ensures that a decision is issued within 30 days after the filing of the appellant’s
reply.” RULE 809.107(6)(e). Conversion to a three-judge panel, in conjunction with conflicts in
this court’s calendar, has resulted in a delay. It is therefore necessary for this court to sua sponte
extend the deadline for a decision in this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D.
v. Franklin R.D., 191 Wis. 2d 680, 694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we
extend our deadline to the date this decision is issued.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials. We do the same for the child, the child’s biological father,
and the child’s guardians.

We note that Amanda’s notice of appeal was taken from the order terminating her
parental rights. During the pendency of her appeal, Amanda filed a postdisposition motion. We
granted a stay for the circuit court to decide the postdisposition motion, then granted Amanda’s
motion to extend the time for filing the statement on the transcript. As a result, we consider both
the order terminating Amanda’s parental rights and the order denying her postdisposition motion.

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No. 2024AP2532

the jury on each of the alleged TPR elements during the grounds phase of the TPR
process.3

¶2 Amanda failed to raise this issue in the circuit court, and she
therefore claims that her trial counsel rendered ineffective assistance by failing to
object to the jury instruction and verdict form. Because this issue is one of first
impression in Wisconsin, we affirm the circuit court’s conclusion that trial counsel
did not perform deficiently by failing to object to the jury instruction and verdict
form, as the law on this issue is unsettled.

¶3 We further affirm the circuit court’s denial of Amanda’s motion for
a directed verdict after the close of the evidence, as viewing the evidence in the
light most favorable to the guardians, there was sufficient evidence of Amanda’s
abandonment to permit the jury to decide the issue.

¶4 We conclude, however, that both the circuit court’s failure to instruct
the jury that it must consider each period of abandonment separately when
answering the verdict and the court’s use of a special verdict form that failed to
specify during which period or periods Amanda was alleged to have abandoned
Lauren constituted plain error. This is because these errors deprived Amanda of
her obvious and substantial right to a verdict by five-sixths of the jury on each of
the elements of abandonment. Whenever multiple periods of abandonment are
alleged at trial, the jury instructions and verdict forms must require the jury to

3
A contested TPR proceeding involves a two-step procedure. Sheboygan Cnty. DHHS
v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402. The first step is a factfinding
hearing, in which a jury or circuit court determines “whether any grounds for the termination of
parental rights have been” proved. Id., ¶26 (quoting WIS. STAT. § 48.424(3)). The termination
proceedings then move to the second step, a dispositional hearing, at which the circuit court must
consider the best interests of the child. WIS. STAT. § 48.426(2).

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No. 2024AP2532

make a separate determination as to each alleged abandonment period. Further,
we determine that these errors were not harmless under the facts of this case.
Accordingly, we reverse the order terminating Amanda’s parental rights to Lauren
and the order denying Amanda’s postdisposition motion and remand to the circuit
court for a new factfinding hearing.

BACKGROUND

¶5 Lauren was born to Amanda and Matthew in February 2010. In
September 2014, when Lauren was approximately four and one-half years old, she
was found to be a child in need of protection or services (CHIPS), and was
removed from Amanda’s care due to Amanda’s struggles with alcoholism. Lauren
was placed with Lisa and Shawn Smith, Lauren’s maternal aunt and her husband.
Amanda was unsuccessful in completing the conditions for Lauren’s return home,
and in 2017, the Smiths were granted guardianship of Lauren over Amanda’s
objection.

¶6 In July 2019, the Smiths filed a petition for the termination of
Amanda’s and Matthew’s parental rights, alleging grounds of abandonment and
failure to assume parental responsibility under WIS. STAT. § 48.415(1) and (6),
respectively. Amanda and Matthew4 exercised their right to a jury trial during the
grounds phase of the TPR process. See WIS. STAT. § 48.422(4).

¶7 As relevant to this appeal, the Smiths argued at trial that Amanda
abandoned Lauren during two separate six-month periods: from

4
Matthew is not participating in this appeal. We do not mention him further.

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No. 2024AP2532

November 1, 2017, to May 1, 2018; and from January 1, 2019, to July 1, 2019.
We briefly summarize the trial testimony pertinent to these allegations.

¶8 Regarding the first alleged period of abandonment, Amanda testified
that from November 2017 to May 2018, she was living in Green Bay and Lauren
was residing with the Smiths.5 Amanda stated that while she did not have any
contact with Lauren during this time period, she did communicate with Lisa via
email, and she asserted that her lack of direct contact with Lauren was not her
fault.

¶9 Amanda testified that prior to the guardianship, i.e., from
September 2014 to April 2017, she was very involved in Lauren’s life. Amanda
explained that she had frequent visits with Lauren, both supervised and
unsupervised. Many of Amanda’s supervised visits with Lauren took place at the
Beacon Center, a supervised visitation center that was offered as a service to
Amanda by the Brown County Department of Health and Human Services
(DHHS). When the guardianship was granted, DHHS stopped providing services
to Amanda, including use of the Beacon Center for visits with Lauren.

¶10 Amanda testified that thereafter, Lisa began to exclude her from
contact with Lauren and from participating in Lauren’s activities. For example,
Amanda was told she was no longer welcome to attend Lauren’s gymnastic
classes, and Lisa prohibited her from having lunch with Lauren at her school.
Amanda stated that after the guardianship was granted, she attempted to establish
a visitation schedule through Lisa, but Lisa denied visitation on all the days that

5
Lisa testified that she and Shawn were residing in Green Bay at this time.

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No. 2024AP2532

Amanda requested, and the Smiths did not allow her any visits with Lauren.
Further, Lisa did not update Amanda on Lauren’s activities during the
guardianship, which Lisa had agreed to do.

¶11 Amanda testified that she emailed Lisa on April 22, 2018, asking to
see Lauren, noting that Lisa had not been returning her calls or texts and that she
was not being allowed to see Lauren at school. Amanda included her then-current
phone number in the email, and the email was received into evidence. Amanda
did not recall Lisa responding to that email.

¶12 Lisa testified that, after the guardianship was ordered, it was
Amanda’s responsibility to contact her and schedule visits with Lauren. Lisa
acknowledged that under the guardianship order, she was required to keep
Amanda updated on Lauren’s extracurricular activities and she admitted she did
not always do so. Lisa stated that her relationship with Amanda became “a little
difficult” after the guardianship was ordered and that they then began to
communicate with each other exclusively by email. Lisa testified that Amanda’s
April 22, 2018 email was the first time she heard from Amanda after the
guardianship was ordered in April 2017, and she stated there was no contact
between Amanda and Lauren in 2018 or 2019.

¶13 Lisa denied interfering with Lauren and Amanda’s relationship. She
testified that she believed she responded to every email she received from
Amanda. She acknowledged that she did take a lot of weekend trips but stated she
did not do so to keep Lauren from Amanda. She also denied sending a letter to
Lauren’s school saying that Amanda could not visit Lauren there.

¶14 In May 2018, Amanda filed a petition to terminate the guardianship,
arguing that good cause existed to remove the Smiths as guardians and that there

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No. 2024AP2532

had been a substantial change in her circumstances. In August 2018, Amanda also
filed a petition to revise the guardianship order. These petitions were resolved
through mediation with Amanda, the Smiths, and a guardian ad litem (GAL). The
parties agreed that Amanda and Lauren would both see counselors and that the
GAL would check on their progress to see if they could participate in therapy
together. Lauren’s therapist would decide when Lauren was ready to be
reintroduced to Amanda.

¶15 Regarding the second alleged period of abandonment, Amanda
testified that from January 2019 to July 2019, she continued to live in Green Bay,
where Lauren continued residing with the Smiths. Amanda acknowledged that she
did not have any contact with Lauren during this period. However, Amanda
testified that she sent several emails to Lisa during this period asking for updates
on Lauren, asking whether she could purchase things for Lauren, and sending
Lauren birthday wishes. Amanda also discussed, and entered into evidence,
emails that she sent on January 29, 2019, and March 13, 2019, to her prior counsel
and Lauren’s GAL asking for information on the status of Lauren’s counseling and
attempting to schedule an appointment with Lauren’s therapist. Amanda stated
that she never received a response from the GAL or her counsel regarding her
requests to establish counseling with Lauren.

¶16 Lisa acknowledged that she received emails from Amanda in
January and February 2019, and she stated that she responded to some of those
emails. Aside from the emails, Lisa testified that she did not have any contact
with Amanda from January 1, 2019, through July 1, 2019. Lisa reiterated that it
was her understanding that Amanda remained responsible for scheduling visits
with Lauren both before and after the guardianship was ordered.

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No. 2024AP2532

¶17 After the Smiths rested their case, Amanda moved for a directed
verdict as to both of the alleged periods of abandonment as grounds for the TPR.
Amanda contended that there was not any “legally sufficient evidentiary basis for
a reasonable jury to reach a different conclusion other than she has not abandoned
her child” during either timeframe because the emails presented at trial showed
that she communicated with Lisa during the alleged periods of abandonment. The
circuit court found there was sufficient evidence for a jury to find that Amanda
abandoned Lauren, and it denied Amanda’s motion as to both of the abandonment
periods.

¶18 Relevant to the ground of abandonment, the circuit court instructed
the jury that the special verdict would be comprised of seven questions. For the
first three questions, the burden was on the Smiths to prove those elements “by
evidence that is clear, satisfactory and convincing to a reasonable certainty,” and
for the remaining four questions, the burden was on Amanda to prove those
elements “by the greater weight of the credible evidence to a reasonable
certainty.”

¶19 The circuit court then advised the jury that the TPR petition alleged
that Amanda abandoned Lauren “for the time period of November 1, 2017, to
May 1, 2018,” and that the petition also alleged “that [Lauren] has been
abandoned from the time period of January 1, 2019, to July 1, 2019.” Regarding
Amanda’s defense to abandonment, the court instructed the jury that it had to
determine whether Amanda “had a reasonable opportunity to visit or communicate
with [Lauren] or communicate with the persons who had physical custody of
[Lauren] during that period.” (Emphasis added.)

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No. 2024AP2532

¶20 The jury answered “Yes” to questions one, two and, three on the
special verdict form, which asked, respectively, “Was [Lauren] left by [Amanda]
with a relative or other person?,” “Did [Amanda] know, or could she have
discovered, [Lauren’s] whereabouts?,” and “Did [Amanda] fail to visit or
communicate with [Lauren] for a period of 6 months or longer?” Question four
asked, “Did [Amanda] have good cause for having failed to visit with [Lauren]
during that period?,” which the jury answered, “No.” Because the jury answered
“No” to question four, the remaining questions were intentionally left blank. 6 See
WIS JI—CHILDREN 314 (2018). Two jurors dissented from the abandonment
verdict. The jury also returned a verdict finding that Amanda did not fail to
assume parental responsibility for Lauren.

¶21 During the dispositional phase of the TPR process, the circuit court
entered an order terminating Amanda’s parental rights to Lauren after determining
that it would be in Lauren’s best interests to do so. Amanda then filed a
postdisposition motion to vacate the TPR order, arguing that she was denied
constitutionally effective assistance of counsel based on her counsel’s failure to
object to the jury instructions and verdict form because they failed to require the
jury to separately consider whether she abandoned Lauren during each specific
time period alleged. After a Machner7 hearing, the circuit court denied Amanda’s
motion, stating that the issue Amanda argued “is still unsettled law” and that

6
Question five asked, “Did [Amanda] have good cause for having failed to communicate
with [Lauren] during that period?” Question six asked, “Did [Amanda] communicate about
[Lauren] with the persons who had physical custody of the child during that period?” Question
seven asked, “Did [Amanda] have good cause for having failed to communicate about [Lauren]
with the persons who had physical custody of the child?”
7
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP2532

“[t]rial counsel cannot be found ineffective if the law is unclear.” Amanda now
appeals.

DISCUSSION

I. Directed Verdict.

¶22 We first address Amanda’s claim that the circuit court erred by
denying her motion for a directed verdict as to the second alleged period of
abandonment. Amanda contends that she had good cause for failing to
communicate or visit with Lauren during the second abandonment period because
the GAL and Lisa prevented her from doing so and that “there is no credible
evidence that could support the jury rejecting [her] good cause defense” for that
alleged period of abandonment.

¶23 A motion for a directed verdict is authorized under WIS. STAT.
§ 805.14(4), which provides that after “the close of all evidence” during a jury
trial, “any party may challenge the sufficiency of the evidence as a matter of law
by moving for directed verdict or dismissal or by moving the court to find as a
matter of law upon any claim or defense or upon any element or ground thereof.”
Directed verdicts are permitted in civil proceedings, including TPR proceedings.
Door Cnty. DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App.
1999).

¶24 In reviewing a denied motion for directed verdict, we consider
whether, taking into account “all credible evidence and reasonable inferences
therefrom in the light most favorable to the party against whom the motion was
made, there is any credible evidence to sustain a finding in favor of that party.”
Warren v. American Fam. Mut. Ins. Co., 122 Wis. 2d 381, 384, 361 N.W.2d 724

10
No. 2024AP2532

(Ct. App. 1984); WIS. STAT. § 805.14(1). “If there is any credible evidence to
sustain a cause of action, the case must be submitted to the jury. Except in the
clearest of cases, a trial judge should withhold ruling on a directed verdict and
permit the question to go to the jury.” Warren, 122 Wis. 2d at 384.8 Further,

[t]he jury is to be the trier of the facts and, in any
circumstances where the facts are disputed or where
different inferences may be drawn from the facts, the jury
is to be the factfinder. Accordingly, a [circuit] court may
take a matter from the jury in only very limited
circumstances.

Millonig v. Bakken, 112 Wis. 2d 445, 449, 334 N.W.2d 80 (1983).

¶25 The Smiths argued that Amanda abandoned Lauren as provided in
WIS. STAT. § 48.415(1)(a)3., which requires proof, by clear and convincing
evidence, that “[t]he child has been left by the parent with any person, the parent
knows or could discover the whereabouts of the child and the parent has failed to
visit or communicate with the child for a period of 6 months or longer.” Id.; see
also WIS. STAT. § 48.31(1).

¶26 The legislature has also included a defense to abandonment in WIS.
STAT. § 48.415(1)(c), which provides:

8
Amanda cites Emer’s Camper Corral, LLC v. Alderman, 2020 WI 46, ¶15, 391
Wis. 2d 674, 943 N.W.2d 513, for the proposition that a circuit court’s decision on a motion for
directed verdict is upheld unless the court was “clearly wrong.” We note that our supreme court
in Emer’s stated, “Where a circuit court grants a motion for a directed verdict, we will uphold
the circuit court’s decision unless the circuit court was clearly wrong.” Id. (emphasis added).
Because the circuit court did not grant Amanda’s motion for a directed verdict, we apply the
standard of review set forth in Warren v. American Fam. Mut. Ins. Co., 122 Wis. 2d 381, 384,
361 N.W.2d 724 (Ct. App. 1984).

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No. 2024AP2532

Abandonment is not established under par. (a)2.[9] or 3. if
the parent proves all of the following by a preponderance of
the evidence:

1. That the parent had good cause for having failed to visit
with the child throughout the time period specified in par.
(a)2. or 3., whichever is applicable.

2. That the parent had good cause for having failed to
communicate with the child throughout the time period
specified in par. (a)2. or 3., whichever is applicable.

3. If the parent proves good cause under subd. 2., including
good cause based on evidence that the child’s age or
condition would have rendered any communication with
the child meaningless, that one of the following occurred:

a. The parent communicated about the child with the person
or persons who had physical custody of the child during the
time period specified in par. (a)2. or 3., whichever is
applicable, or, if par. (a)2. is applicable, with the agency
responsible for the care of the child during the time period
specified in par. (a)2.

b. The parent had good cause for having failed to
communicate about the child with the person or persons
who had physical custody of the child or the agency
responsible for the care of the child throughout the time
period specified in par. (a)2. or 3., whichever is applicable.

¶27 In viewing the evidence in the light most favorable to the Smiths, we
conclude that the circuit court did not err by denying Amanda’s motion for a
directed verdict as to the second abandonment period. Amanda contends that
because Lisa and the GAL did not provide a “reasonable opportunity” for Amanda
“to visit or communicate with Lauren,” there was “no credible evidence that could
support the jury rejecting Amanda’s good cause defense” as to the second alleged
period of abandonment. The record belies Amanda’s argument.

9
Abandonment under WIS. STAT. § 48.415(1)(a)2. is not at issue in this case.

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No. 2024AP2532

¶28 Specifically, Amanda acknowledged that, during this time period,
she had no contact with Lauren and sent only two emails to Lisa despite testifying
that she knew Lisa’s home address, had Lisa’s phone number, and knew Lisa’s
email address. Lisa testified that she has lived at the same address since 2007, that
she has had the same phone number for over 30 years, and that she has had the
same email addresses since 2014. Lisa also testified that she had never blocked
Amanda on her cell phone and that she believed she had responded to every email
that Amanda sent her. Further, Lisa denied interfering with Amanda’s efforts to
see Lauren and she stated that it was Amanda’s responsibility to schedule visits
with Lauren, which Amanda failed to do.

¶29 While there appears to be no evidence explaining why the GAL did
not reply to Amanda’s emails, in viewing the evidence in the light most favorable
to the Smiths, there was evidence to support a jury finding that Amanda did not
have good cause for failing to visit or contact Lauren during this time period. A
jury could reasonably conclude that Amanda was not credible, or at least she was
less credible than the Smiths. Making such a finding, the jury could further find
that Amanda did not make a good faith effort to communicate with Lauren, the
GAL, or Lisa; that Amanda failed to prove that the Smiths interfered with her
ability to communicate and visit with Lauren; or that Amanda did not have good
cause for failing to communicate and visit with Lauren. Simply put, there were
factual disputes regarding Amanda’s good cause defense during the second alleged
period of abandonment. Accordingly, the circuit court did not err by denying
Amanda’s motion for a directed verdict. See Millonig, 112 Wis. 2d at 449.

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No. 2024AP2532

II. Ineffective Assistance of Counsel

¶30 Amanda argues that the jury instructions and special verdict form on
the ground of abandonment violated her statutory and constitutional rights to a
verdict by five-sixths of the jury because they failed to require the jury to
separately determine whether she abandoned Lauren during each specific time
period alleged. As she did not raise this issue directly in the circuit court, it is
therefore forfeited, see WIS. STAT. § 805.13(3). She contends, however, her trial
counsel rendered ineffective assistance by failing to object to the instructions and
verdict form.

¶31 A parent in a TPR action has the right to be represented by effective
counsel, and a parent may therefore assert an ineffective assistance of counsel
claim in a TPR action. See A.S. v. State, 168 Wis. 2d 995, 1003-05, 485 N.W.2d
52 (1992). A claim for the ineffective assistance of counsel presents mixed
questions of law and fact. State v. Edward Johnson, 153 Wis. 2d 121, 127, 449
N.W.2d 845 (1990). The circuit court’s findings of fact will not be overturned
unless clearly erroneous. Id. “The ultimate determination of whether counsel’s
performance was deficient and prejudicial … are questions of law which this court
reviews independently.” Id., at 128.

¶32 To demonstrate that counsel was ineffective, a party asserting the
ineffective claim must prove both that counsel’s performance was deficient and
that the deficient performance was prejudicial. See Strickland v. Washington, 466
U.S. 668, 687 (1984). If the party asserting the ineffective claim parent fails to
satisfy either prong of this test, we need not consider the other. See State v.
Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93. “[A]n attorney
is not deficient for failing to pursue an ‘unsettled proposition of law.’” State v.

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No. 2024AP2532

Robinson, 2024 WI App 50, ¶32, 413 Wis. 2d 534, 12 N.W.3d 535 (citation
omitted).

¶33 Amanda contends that the circuit court erred by concluding that the
law on this issue is not settled and thereby denying her ineffective assistance
claim. She asserts that her counsel performed deficiently both by failing to ask the
circuit court to instruct the jury to answer separate questions related to each
claimed abandonment period and by not objecting to the court’s failure to provide
the jury with separate verdict forms as to each claimed abandonment period. She
asserts that the law on this issue is well settled because the comments to the jury
instruction on abandonment under WIS. STAT. § 48.415(1)(a)(3) state that in cases
where multiple periods of abandonment are alleged, counsel should “be alert to
notice issues and separating the claims,” WIS JI—CHILDREN 314 (2018) (Period of
Abandonment; Different Intervals), and because the five-sixths jury verdict
requirement “is well-established.”

¶34 We conclude that the law is unsettled as to whether separate
instructions and verdict forms are required when more than one period of
abandonment is alleged in a TPR action. In Heather T.C. v. Donald M.H.,
No. 2010AP467, unpublished slip op., ¶15 (WI App Feb. 1, 2012), this court
specifically noted that “[w]hile in the future Wisconsin law may clarify whether
separate instructions and separate verdicts are required when more than one period
of abandonment is alleged, we have found no clear law that would have required
this at the time of the jury instruction and verdict conference in this case.”10 Our

10
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

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No. 2024AP2532

search of the caselaw has not revealed any subsequent clarification on this issue.
Further, Amanda ignores that the jury instruction comment she cites also states
that “‘no clear law’ exists to clarify whether separate instructions and separate
verdicts are required when more than one period of abandonment is alleged.”
WIS JI—CHILDREN 314 (2018).

¶35 While there is a statutory and constitutional right to a verdict by at
least five-sixths of the jury, see WIS. STAT. § 805.09(2); WIS. CONST. art. I, § 5,
the law is unclear as to whether failing to provide instructions and a verdict
requiring that the jury differentiate between periods of abandonment violates that
right. We therefore conclude that Amanda’s counsel did not render
constitutionally ineffective assistance by failing to object to the circuit court’s
instructions and verdict form, and the court did not err by denying Amanda’s
postdisposition motion on this issue.

III. Plain Error

¶36 Alternatively, Amanda argues that the claimed errors in this case
regarding the jury instruction and verdict form should be reviewed for plain error.
The plain error doctrine is codified in WIS. STAT. § 901.03(4) and provides,
“Nothing in this rule precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the judge.” “The plain
error doctrine allows appellate courts to review errors that were otherwise
[forfeited] by a party’s failure to object.” State v. Jorgensen, 2008 WI 60, ¶21,
310 Wis. 2d 138, 754 N.W.2d 77.

Plain error is “error so fundamental that a new trial or other
relief must be granted even though the action was not
objected to at the time.” The error, however, must be
“obvious and substantial.” Courts should use the plain
error doctrine sparingly. For example, “where a basic

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No. 2024AP2532

constitutional right has not been extended to the accused,”
the plain error doctrine should be utilized.

Id. (citations omitted). “[T]he existence of plain error will turn on the facts of the
particular case.” Id., ¶22 (citation omitted). If the proponent of the plain error
shows that the unobjected-to error is fundamental, obvious, and substantial, the
burden shifts to the beneficiary of the error to show that the error was harmless.
See id., ¶23.

¶37 The resolution of Amanda’s claims requires us to interpret statutes
and to determine whether jury instructions state the applicable law correctly, both
of which are questions of law that we review de novo. State v. Stewart, 2018 WI
App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188; State v. Langlois, 2018 WI 73,
¶34, 382 Wis. 2d 414, 913 N.W.2d 812. “[S]tatutory interpretation ‘begins with
the language of the statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.’ Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations
omitted).

Context is important to meaning. So, too, is the structure of
the statute in which the operative language appears.
Therefore, statutory language is interpreted in the context
in which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results.

Id., ¶46. “If this process of analysis yields a plain, clear statutory meaning, then
there is no ambiguity, and the statute is applied according to this ascertainment of
its meaning.” Id. (citation omitted).

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No. 2024AP2532

¶38 “‘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). TPR
proceedings “are among the most consequential of judicial acts, involving as they
do ‘the awesome authority of the State to destroy permanently all legal recognition
of the parental relationship.’” Steven V. v. Kelley H., 2004 WI 47, ¶21, 271
Wis. 2d 1, 678 N.W.2d 856 (citation omitted). Because of this, TPR proceedings
“deserve ‘heightened’ due process protections.” Dane Cnty. DHS v. Susan P. S.,
2006 WI App 100, ¶51 n.5, 293 Wis. 2d 279, 715 N.W.2d 692 (citation omitted);
Brown County v. Shannon R., 2005 WI 160, ¶59, 286 Wis. 2d 278, 706 N.W.2d
269.

¶39 “A parent’s interest in the parent-child relationship and in the care,
custody, and management of his or her child is recognized as a fundamental liberty
interest protected by the Fourteenth Amendment.” Steven V., 271 Wis. 2d 1, ¶22.
“Thus, due process requires that ‘[w]hen the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair procedures.’”
Id., ¶23 (citation omitted). These “fundamentally fair procedures” include the
requirement of proving parental unfitness by clear and convincing evidence. Id.

¶40 A circuit court is required to find a parent unfit if a statutory ground
for TPR is found by the court or by a jury. WIS. STAT. § 48.424(4). The grounds
for TPR are set forth in WIS. STAT. § 48.415, and the Smiths argued that Amanda
abandoned Lauren under § 48.415(1)(a)3. As relevant to the issues here, that
statute required the Smiths to prove, by clear and convincing evidence, that
Amanda failed to visit or communicate with Lauren for a period of six months or
longer. See id. Further, as relevant here and discussed above, § 48.415(1)(c)
provides that abandonment is not established if the parent proves he or she has

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good cause, as defined in the statute, for failing to visit or communicate with the
child or the child’s physical custodian during the alleged abandonment period.
See supra ¶26.

¶41 A parent in a TPR proceeding has the right to a twelve-person jury
during the grounds phase of the TPR process. WIS. STAT. § 48.31(1), (2). Section
48.31(2) further provides that WIS. STAT. chs. 756 and 805 “shall govern the
selection of jurors.” WISCONSIN STAT. § 805.09(2) in turn provides, “A verdict
agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than
one question must be answered to arrive at a verdict on the same claim, the same
five-sixths of the jurors must agree on all the questions.” This rule, colloquially
referred to as the “five-sixths rule,” “requires that the same ten jurors must agree
on all questions necessary to support a judgment on a particular claim.”
Nommensen v. American Cont’l Ins. Co., 2000 WI App 230, ¶18, 239 Wis. 2d
129, 619 N.W.2d 137. Although the right to a jury trial at the grounds phase of a
TPR proceeding “is entirely statutory” and “not mandated by constitutional due
process,” Steven V., 271 Wis. 2d 1, ¶34, the right to a verdict by at least five-
sixths of the jury stems from our state constitution. See WIS. CONST. art. I, § 5
(“[T]he legislature may, from time to time, by statute provide that a valid verdict,
in civil cases, may be based on the votes of a specified number of the jury, not less
than five-sixths thereof.”).

¶42 Amanda argues that the circuit court deprived her of her statutory
and constitutional rights to a five-sixths jury verdict by failing to require that the
jury agree on all questions necessary to support its verdict that she abandoned
Lauren. Specifically, Amanda contends that by not instructing the jury to consider
each alleged period of abandonment independently and failing to provide separate
verdict forms for each abandonment period, she was deprived of her right to have

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the same ten jurors agree on all questions necessary to support a judgment on each
claimed abandonment period. We agree, and given Amanda’s fundamental,
obvious, and substantial rights at issue in this TPR proceeding, coupled with her
statutory right to a five-sixths verdict, we conclude that the court’s failure to
provide the jury with separate instructions and verdicts for each alleged period of
abandonment constituted plain error.11

¶43 We begin with our review of the plain language of the statute.
Based on that review, we interpret WIS. STAT. § 48.415(1)(a)3. and the WIS JI—
CHILDREN 314 (2018) model verdict questions12 to refer to a single period of
abandonment. Particularly, both § 48.415(1)(a)3. and question 3 of the model
verdict questions ask if a parent failed to meet or communicate with his or her
child “for a period of 6 months or longer”—meaning one singular period.
Sec. 48.415(1)(a)3.; WIS JI—CHILDREN 314 (2018) (emphasis added). The next
four model verdict questions—questions 4 though 7—pertain to a parent’s defense
to abandonment under WIS. STAT. § 48.415(1)(c), and both the instructions and the

11
Because we conclude that failing to provide the jury with separate instructions and
verdicts for each alleged period of abandonment was plain error, we need not address Amanda’s
argument that that she is entitled to reversal in the interest of justice. See Turner v. Taylor, 2003
WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (noting that we need not address all
issues when the resolution of one of those issues is dispositive).
12
The model verdict form for abandonment under WIS. STAT. § 48.415(1)(a)3. currently
consists of seven questions.

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No. 2024AP2532

questions refer back to that singular period from question 3. WIS JI—CHILDREN
314 (2018).13

¶44 Here, the circuit court’s failure to instruct the jury to consider a
singular period for each set of verdict questions and its failure to provide the jury
with separate verdict forms for each alleged period of abandonment resulted in the
jury failing to consider each alleged abandonment period separately and deprived
Amanda of her right to a five-sixths verdict on each separate time period. Based
upon the jury instructions and verdict form, we cannot determine if the same five-
sixths of the jurors found that Amanda abandoned Lauren during one of the
alleged periods, both of the alleged periods, or some combination of the two.

¶45 In fact, the circuit court recognized this possibility. In finding that
the instructions and verdict form were sufficient, the court concluded that even if
only five jurors agreed on the first time period, and only five jurors agreed on the
second time period, “this means 10 jurors (five-sixths) found the mother
abandoned her child.” The court stated, “In a TPR trial, the ultimate question the
jury must answer is: did the parent abandon her child, not when did the parent
abandon her child.” The Smiths echo this analysis, claiming the same five-sixths
of the jury needed only to determine that Amanda “abandoned” Lauren and do not
need to agree as to when that occurred.

13
The jury instructions state that “[q]uestions 4-7 apply to the period of six months or
longer as determined in question 3.” These questions ask (4) “Did (parent) have good cause for
having failed to visit with (child) during that period?,” (5) “Did (parent) have good cause for
having failed to communicate with (child) during that period?,” (6) “Did (parent) communicate
about (child) with the (person) (persons) who had physical custody of the child during that
period?,” and (7) “Did (parent) have good cause for having failed to communicate about (child)
with the (person) (persons) having physical custody during that period?” WIS JI—CHILDREN 314
(2018).

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No. 2024AP2532

¶46 We conclude this analysis ignores the plain wording of the statute.
As Amanda argues, “the question of ‘when’ [she] allegedly failed to visit and
communicate with Lauren is inherent to the question of ‘whether’ she abandoned
Lauren, because the definition of abandonment contains a ‘when’ question—a
specific ‘period of 6 months or longer.’” See WIS. STAT. § 48.415(1)(a)3. This
statutory manner of defining the grounds of “abandonment” is critical. The
prejudicial effect of the generalized verdict is further amplified where, as was the
case here, two jurors dissented from the majority’s verdict. If even one of the
remaining ten jurors based his or her decision on a different period than the rest of
the jurors, the verdict did not meet the five-sixths requirement.

¶47 We further note that following the circuit court’s rationale, a jury
could find abandonment by determining that Amanda failed to visit or
communicate with Lauren during six individual nonconsecutive months over a
period of years. This result would clearly be contrary to the statute’s wording
requiring the jury to determine whether the parent has failed to visit or
communicate with the child “for a period of 6 months or longer.” See id. We
conclude that this wording evidences the legislature’s clear intent that a single,
prolonged period of abandonment is required before a parent’s fundamental rights
are severed.

¶48 Although the jury did not address questions five through seven of the
verdict, had they done so using a single verdict, we would be unable to determine
whether five-sixths of the jury agreed that Amanda had good cause, or lacked
good cause, in failing to visit or communicate with Lauren during the same time
period. This inability is particularly problematic where, as here, a parent argues
differing good cause defenses to the alleged periods of abandonment. Thus, where
there are multiple alleged periods of abandonment, the jury must be instructed to

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No. 2024AP2532

consider each alleged period of abandonment separately and must be provided
with verdict forms as to each separate abandonment period alleged.

¶49 In arguing to the contrary, the Smiths cite State v. William.
Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455, a criminal case the
circuit court relied upon and that the Smiths characterize as being applicable to
TPR cases. There, the defendant was charged with repeated sexual assault of the
same child based on the victim’s testimony that the defendant assaulted her
multiple times during the summer of 1997. Id., ¶4. Among other elements, the
jury was instructed that the State was required to prove that “at least three of the
alleged sexual assaults took place from a specific period of time,” with that period
being the summer of 1997. Id., ¶7. However, the applicable statute expressly
stated that the jury must unanimously agree that at least three sexual assaults
occurred, but it need not agree on which acts constituted the requisite number. Id.,
¶8. The defendant was convicted and subsequently moved for a new trial, arguing
that his right to a unanimous verdict had been violated because “the State
introduced evidence of more than the minimum number of sexual assaults required
to constitute the crime, but the jury was not instructed that it had to agree
unanimously on the specific acts of sexual assault before convicting him.” Id., ¶9.

¶50 Our supreme court rejected the defendant’s argument. Id., ¶28. The
court noted that “when the statute in question establishes different modes or means
by which the offense may be committed, unanimity is generally not required on
the alternate modes or means of commission.” Id., ¶11. Applying this test, the
court concluded, “Where evidence of more than three acts is admitted, the jury
need not unanimously agree about the underlying acts as long as it unanimously
agrees that the defendant committed at least three.” Id., ¶15. “In other words, it is
the course of sexually assaultive conduct that constitutes the primary element of

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this offense, about which the jury must be unanimous…. Unanimity is explicitly
not required regarding the individual acts of sexual assault.” Id., ¶16

¶51 The court further stated:

[T]he violations of the law about which the jury need not
be unanimous under this statutory scheme all involve the
sexual abuse of children, crimes of the same or similar
nature and level of culpability. It is therefore not unfair or
irrational to lift the requirement of jury unanimity as to the
specific underlying acts as long as unanimity is required
regarding the existence of the course of conduct.

Id., ¶19.

¶52 Applying the same logic from the William. Johnson court, the
circuit court found—and the Smiths argue on appeal—that “[t]he five-sixths
threshold is met upon the jury returning a finding of abandonment—that is all the
law requires the jury to decide. The law does not require deciding alleged
multiple periods of abandonment separately, nor does it require multiple periods to
be presented to the jury separately.”

¶53 We consider this analogy inapt.14 Here, unlike WIS. STAT.
§ 948.025(2), the course of conduct necessary to support a judgment on a claim for
abandonment—i.e., one of the essential elements—is a period of abandonment of
six or more months. The legislature has recognized the fundamental rights

14
The circuit court also considered whether separate jury instructions and verdict forms
were needed by comparing this issue to the context of party-to-a-crime liability, in that there are
“various ways a person might be guilty as a party to a crime without requiring the jurors to agree
on the applicable theory or theories.” See Holland v. State, 91 Wis. 2d 134, 143, 280 N.W.2d
288 (1979). We do not find this reasoning persuasive, as there is no allegation here that the time
element of abandonment can be proven in a variety of ways; it can only be proven if a child is
abandoned for a period of six months or more.

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No. 2024AP2532

affected by TPR proceedings, and, in order to terminate those rights, it requires
proof that a parent abandoned his or her child under WIS. STAT. § 48.415(1)(a)3.
for a period of at least six months. Further, the legislature has provided a parent
with the opportunity to present a defense of good cause, the facts of which are
specifically related to each period of abandonment alleged. In other words, based
upon our interpretation of WIS. STAT. § 48.415(1)(a)3, we conclude that in order to
permanently destroy all legal recognition of the parental relationship, five-sixths
of the jury must agree on one period of abandonment, and the same five-sixths of
the jury must agree that the parent did not have good cause for failing to visit or
communicate with the child or his or her custodian during that abandonment
period.

¶54 The Smiths also contrast abandonment under WIS. STAT.
§ 48.415(1)(a)3. with the finding of dangerousness required to have a person
involuntarily committed under WIS. STAT. § 51.20. The Smiths note that circuit
courts must make specific factual findings regarding a subject’s dangerousness in
order to clearly track the necessary elements for involuntary commitment. See
Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277;
Sheboygan County v. M.W., 2022 WI 40, ¶11, 402 Wis. 2d 1, 974 N.W.2d 733
(quoting the court of appeals decision that the circuit court “failed to clearly track
the necessary elements of any particular subdivision paragraph and state how the
evidence satisfied those elements.”). The Smiths assert that there is no
subcategorization of types of abandonment in § 48.415(1)(a)3. as there is for the
types of dangerousness in § 51.20; instead, § 48.415(1)(a)3. has “a singular
evidentiary threshold.” From these differences, they contend that the jury need not
differentiate between periods of abandonment in reaching its decision.

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No. 2024AP2532

¶55 We are not persuaded. Abandonment under WIS. STAT.
§ 48.415(1)(a)3. does not have a singular evidentiary threshold as the Smiths
suggest. Rather, there is a secondary evidentiary threshold concerning the parent’s
right to present a good cause defense to abandonment under § 48.415(1)(c), and
that statute provides multiple ways in which a parent can prove a good cause
defense. This defense not only directly corresponds to the specific alleged period
of abandonment, but it also has a different evidentiary burden. See WIS. STAT.
§ 48.31(1) (stating that the grounds under § 48.415 must be proved by clear and
convincing evidence); § 48.415(1)(c) (stating that a parent must prove his or her
defense to abandonment by a preponderance of the evidence).

¶56 Regardless, as stated above, in order to find abandonment when
multiple time periods are alleged, we interpret WIS. STAT. § 48.415(1)(a)3 as
requiring that five-sixths of the jury agree both on a period of abandonment and
that the parent did not have good cause for failing to visit or communicate with the
child or his or her custodian during that specific abandonment period in order for
there to be grounds for TPR. The circuit court’s failure to provide the jury with
instructions and verdict forms that complied with these statutory requirements,
thereby depriving Amanda of her right to a five-sixths verdict, constituted plain
error.

IV. Harmless Error.

¶57 Having concluded that the failure to provide the jury with separate
instructions and special verdict forms for each alleged period of abandonment was
a fundamental, obvious, and substantial error, the burden now shifts to the Smiths
to show that the error was harmless. See Jorgensen, 310 Wis. 2d 138, ¶23; State
v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). “The standard for

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No. 2024AP2532

harmless error is the same for civil and criminal cases. The test is whether there is
a reasonable possibility that the error contributed to the outcome of the action or
proceeding at issue.” Schwigel v. Kohlmann, 2005 WI App 44, ¶11, 280 Wis. 2d
193, 694 N.W.2d 467.

¶58 The Smiths do little in trying to meet their burden. They “contend
that any such error is appropriately deemed harmless.” They further assert that
“[t]he record does not support, and Amanda fails to present, any evidence
demonstrating the jury’s verdict was unreliable, or that any juror could have
reached a different conclusion had the alleged error not occurred.”

¶59 In making this argument, the Smiths ignore that they have the
burden to prove harmless error. In addition, they fail to address the clear violation
of Amanda’s right to a five-sixths jury verdict. As discussed above, the circuit
court’s failure to properly instruct the jury and provide separate verdicts for each
alleged abandonment period prevents us from determining if the same five-sixths
of the jurors found that Amanda abandoned Lauren during one six-month time
period. There is a reasonable possibility that these errors contributed to the jury’s
finding of abandonment. Further, it is possible that the jury may have found
Amanda had good cause for failing to communicate with or visit Lauren if the jury
had been asked to consider each period of abandonment separately. We therefore
conclude that the circuit court’s failure to properly instruct the jury and provide
separate verdicts for each alleged period of abandonment was not harmless.

CONCLUSION

¶60 A parent’s failure to visit or communicate with his or her child for a
period of six months or longer is an essential element of abandonment under WIS.
STAT. § 48.415(1)(a)3. When multiple periods of abandonment are alleged, that

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No. 2024AP2532

statute requires the jury must be instructed to consider each period of
abandonment separately, and the jury must be provided with a separate verdict
form for each period of abandonment. As this area of the law was previously
unsettled, Amanda’s counsel did not perform deficiently by failing to question the
jury instructions and verdict form. We now conclude, however, that the circuit
court’s failure to properly instruct the jury and provide separate verdict forms for
each abandonment period alleged deprived Amanda of her right to a five-sixths
verdict, constituting plain error. We further conclude that such error was not
harmless. We therefore reverse the court’s order terminating Amanda’s parental
rights to Lauren and the order denying Amanda’s postdisposition motion, and we
remand with directions for a new factfinding hearing consistent with this decision.

By the Court.—Orders reversed and cause remanded with directions.

Recommended for publication in the official reports.

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