Oct. 14, 2025 – A circuit court’s failure to instruct the jury to decide on each period of abandonment denied a mother due process protection of a five-sixths verdict, the Wisconsin Court of Appeals decided in S. S. v. A. S.-P., No. 2024AP2532 (Sept. 23, 2025) (recommended for publication).

The decision clarifies “unsettled law,” justifying reversal of the Brown County Circuit Court verdict for plain error.

“When multiple periods of abandonment are alleged, that 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,” Presiding Judge Lisa K. Stark wrote for the unanimous panel with Judges Thomas M. Hruz and Gregory B. Gill Jr.

Because the law had been “unsettled,” the mother’s claim that she received ineffective assistance of counsel for not objecting to the jury instructions and verdict form failed.

Alleged Abandonment

The mother struggled with alcoholism. When her daughter was four and a half years old in September 2014, the child was found to be in need of protection or services (CHIPS).

The child was placed with her mother’s maternal aunt and uncle.

The mom didn’t complete the conditions to bring her child home, and in 2017, the aunt and uncle received guardianship against the mom’s objection.

Two years later, they filed a petition for termination of parental rights (TPR) against the parents alleging two, six-month periods of abandonment and failure to assume parental responsibility under Wis. Stat. section 48.415(1), (6).

The natural parents sought a jury trial, as is their right under Wis. Stat. section 48.422(4).

In the first period from November 2017 to May 2018, the mother admitted she did not meet with her daughter but did communicate with her aunt by email, and “her lack of direct contact … was not her fault.”

Prior to the guardianship, the mother said that she remained “very involved” in her daughter’s life with “frequent visits,” but the county human services supervised visitation center became unavailable to her during the guardianship.

She believed her aunt excluded her from her daughter’s life.

The aunt testified in contrast that it was the mother’s responsibility to make contact to schedule visits, and while the aunt tried to keep the mother informed of her daughter’s schedule, she admitted she may not have always succeeded.

In the second alleged period of abandonment from January to July 2019, the mother admitted that she didn’t have contact with her daughter, but she sent several emails to her aunt. The aunt testified she responded to some of them.

The circuit court instructed the jury about the alleged two periods of abandonment and the mother’s available defense of whether she “had a reasonable opportunity to visit or communicate with” either the child or “the persons who had physical custody of [the child] during that period.”

The jury gave a single verdict of abandonment. Two jurors dissented.

Plain Error

The jury instruction and verdict form may be reviewed for plain error under Wis. Stat. (4), the decision explained, because “substantial rights” are affected, even though the issue never arose at trial.

Precedent warns to use plain error “sparingly.”

TPR “permanently sever[s]” the parent-child relationship, affecting a “fundamental liberty interest” that requires “‘heightened’ due process protections” and “clear and convincing evidence.”

The right to a jury, even with the five-sixth vote permitted by statute, the Wisconsin Constitution guarantees in article I, section 5, but the jurors must agree on all the questions for a particular claim.

The mother argued she didn’t receive that protection because the jury made one verdict on one verdict form covering two separate alleged periods of abandonment with no way to show that the same ten jurors voted the same for both periods.

One Singular Period

A review of the language of both Wis. Stat. section 48.415(1)(a)3., and Wis JI-Children 314 (2018), however, referenced “‘a period of 6 months or longer’ – meaning one singular period,” the Court of Appeals explained.

The circuit court needed to provide the jury with a set of verdict questions and a separate verdict form for each alleged period of abandonment, the Court of Appeals held.

“Based upon the jury instructions and verdict form, we cannot determine if the same five-sixths of the jurors found that [the mother] abandoned [the child] during one of the alleged periods, both of the alleged periods, or some combination of the two.”

The circuit court had considered the difficulty of ensuring a five-sixth verdict on both claims, but it believed “the ultimate question the jury must answer is: did the parent abandon her child.”

By the circuit court’s math, “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 of Appeals explained that the circuit court’s conclusion didn’t follow the statute’s language.

As the mother argued, “‘the question of ‘when’ [she] allegedly failed to visit and communicate with [her daughter] is inherent in the question of ‘whether’ she abandoned” her daughter.

Alternative Arguments

The custodial aunt and uncle pointed to Wisconsin Supreme Court precedent to support the circuit court verdict.

They argued that multiple sexual assaults of a child do not need to receive a verdict on each violation, and factual findings of dangerousness for involuntary commitment require “a single evidentiary threshold.”

The language of the abandonment statute ruled out those analogies, the Court of Appeals held.

Although a finding of plain error shifts the burden to the losing party to argue the error was harmless – whether “the error contributed to the outcome” – only a cursory argument followed, reinforcing the Court of Appeals’ conclusion.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.