Defense win: In published decision, COA holds that jurors must agree on period of abandonment in TPR
S.S. and L.S. v. A.S.P. and M.P., 2024AP2532, 9/23/25, District III (recommended for publication); case activity
Although COA rejects 2/3 of “Amanda’s” legal arguments, she eventually prevails in a rare plain error win as a result of defective instructions and a defective verdict form with respect to the abandonment ground in this TPR appeal.
The guardians of the minor child at issue, “Lauren” filed a petition to terminate “Amanda’s” parental rights, alleging that she abandoned Lauren during two specific six-month periods. (¶1). “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.” (Id.). Although the jury found in favor of the guardians, “the verdict form did not permit the jurors to specify the period or periods of abandonment on which they agreed.” (Id.). From this fact pattern, COA addresses three issues:
Directed Verdict
Amanda argues that the trial court erred by denying her motion for a directed verdict with respect to the second abandonment period, arguing that she established good cause for failing to contact the child during that period. (¶22). As COA explains, however, the standard of review is nearly insurmountable: “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.”(¶24). Although COA seems to acknowledge that Amanda makes some good points about the evidence presented, ultimately, the jury was the arbiter of credibility and COA finds that, viewing the evidence in the light most favorable to the other party, the circuit court did not err. (¶29).
Ineffective Assistance of Counsel
“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.” (¶30). Ultimately, however, Amanda fails to prove deficient performance because the law was “unsettled as to whether separate instructions and verdict forms are required when more than one period of abandonment is alleged in a TPR action.” (¶34). To support that conclusion, COA specifically cites a prior unpublished decision appearing to recognize the unsettled nature of the legal question. (Id.).
Plain Error
“Alternatively, Amanda argues that the claimed errors in this case regarding the jury instruction and verdict form should be reviewed for plain error.” (¶36). On this point, she succeeds:
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 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.
(¶42).
Central to COA’s holding is its interpretation of the abandonment ground, § 48.415(1)(a)3, which refers “to a single period of abandonment.” (¶43). Likewise, evaluation of the parent’s good cause defense also shows that it is intended to be directed at a specified six-month period. (Id.). In this case, however, the jury was presented with two possible abandonment periods, which “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.” (¶44). COA is therefore unable to “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.” (Id.). The error is especially critical because two jurors did in fact dissent from the majority verdict, amplifying the risk of a non-unanimous jury with respect to this issue. (¶46). COA therefore emphasizes that what needed to be established was an agreed-upon six-month period of abandonment and rejects the circuit court’s attempt to skirt around this essential requirement in ruling on the issue below. (¶47).
Because COA finds that the defective instructions and verdict forms constituted a “fundamental, obvious and substantial error” the petitioners have the burden of proving the error was harmless. (¶57). However, COA concludes they have done “little in trying to meet their burden” and appear to have not adequately recognized it was their burden of proving the error harmless. (¶59). Accordingly, COA reverses and remands for a new trial. (¶60).