A.M.D. v. G.R.B., Jr., 2024AP1071, District II, 9/18/24 (one-judge decision; ineligible for publication); case activity
G.R.B. (“Bartel”) appeals an order terminating his parental rights, raising a medley of challenges. Although COA acknowledges that its prior precedent sent “mixed signals” to litigants on at least one of the issues, it ultimately rejects all of G.R.B.’s arguments and affirms.
Bartel’s former partner, “Anaya Daniel” filed a private TPR in 2023 alleging abandonment and failure to assume parental responsibility with respect to their child, Franny, who she claimed Bartel had not contacted since 2018. (¶3). The jury found that she proved the ground of abandonment but not the alleged failure to assume. (Id.). Bartel moved for judgment notwithstanding the verdict (JNOV) and that motion was denied. (Id.). The court also denied his motion to dismiss invoking the doctrine of “unclean hands” and further rejected his due process challenge. (Id). Bartel renews all three arguments on appeal:
Judgment Notwithstanding the Verdict
In order to prove that Bartel “abandoned” Franny pursuant to § 48.415(1)(a)3, the petitioner needed to prove that “The 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.” (¶3). (Emphasis in original). In other words, there are three elements at play: (1) whether Bartel “left” Franny with Daniel; (2) whether he knew or could have discovered her whereabouts and (3) whether he failed to visit or communicate with the child for a period of six months or longer. (¶8).
See also Wis. JI-Children 314.
A parent can defeat a claim of abandonment by proving by a preponderance that there was “good cause” for “failing to visit and communicate with the child during the relevant time period.” (¶5). Applying de novo review, the task of COA in this appeal is to determine whether the facts presented by the petitioner are sufficient as a matter of law to satisfy the legal elements. (¶7).
Here, Bartel appears to argue that the “central question” focuses on the first element–whether he “left” the child with the other parent. (¶14, n.4). He “specifically asserts he never ‘left’ Franny with Daniel because Daniel ‘took Franny away from Mr. Bartel without permission, and then thwarted his ability to stay in contact with her by blocking him, changing her name, and moving no fewer than nine times without giving him notice or her new address.” (¶8). He relies on Rhonda R.D. v. Franklin R.D. for support. (¶9). In that case, the respondent argued that he had not “left” the child; instead, the petitioner had taken the child out-of-state without permission. (¶10). Reviewing that authority, COA concedes that its prior decision “sent mixed signals.” (¶12). However, it ultimately holds that Bartel has taken language out of context and therefore failed to uncover the “true holding” of Rhonda D (while simultaneously admitting that some of the language in that opinion is “not entirely consistent with the plain text of the statute […].”). (¶13). In COA’s view
“left” “appl[ies] both to those situations where the parent actively places the child with another person and to those situations where the parent does not do so, but ‘knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child’” for the required time period.
(¶12). Despite evidence that “he did not know where Franny was[,]” (id.), COA holds that the “knows or could discover” criterion was satisfied by this evidence, as Bartel never took actions which could have revealed the child’s location, such as pursuing an Amber alert, calling the police, or filing a contempt motion in family court. (¶14). Under the “true holding” of Rhonda D., COA holds that the circuit court appropriately denied the JNOV motion.
With all due respect, COA’s discussion of this issue is somewhat confusing. In a footnote, it indicates that Bartel may have waived any statutory construction argument about the meaning of the word “left” by not adequately preserving that issue below. In the text of the opinion, however, it proceeds to hold that the first element–whether the child was “left”–is satisfied by looking to the second element, whether the person “knows or could discover” the whereabouts of the child. The practical holding appears to be that a parent “leaves” their child when the child is taken by another and the parent seemingly acquiesces to that taking via conduct, such as by failing to take steps to discover the child’s whereabouts. That may be a sensible overall reading of the statutory criteria, but COA’s apparent conflation of the first and second elements in its analysis–as well as its confession that its prior precedent lacks clarity–means that its reasoning on this point is somewhat difficult to work through.
Unclean Hands
Bartel also moved to dismiss, arguing that Daniel had “unclean hands.” (¶15). He argues that the circuit court erroneously exercised its discretion, as the evidence showed that Daniel’s TPR petition was premised on a lack of contact for which she was responsible. (¶16). Here, although the court relied extensively on the jury’s verdict (which rejected a good cause argument) in denying the motion, COA holds that the court “did not simply defer to the jury’s findings” and independently exercised its discretionary authority. (¶20). The circuit court concluded that “both parties bear some form of responsibility” and therefore opted not to apply the doctrine of unclean hands given that Bartel’s conduct also contributed to the situation. (Id.). Under the law, the doctrine requires that
“the alleged conduct constituting ‘unclean hands’ caused the harm from which the
plaintiff seeks relief. The court must clearly see that it is the fruit of [Daniel’s]
own wrong, or relief from the consequences of [her] own unlawful act, which the
plaintiff seeks, before [her] action can be dismissed.”.[…]
The circuit court here was essentially saying that it was not Daniel’s actions alone that “caused the harm” of Bartel failing to visit or communicate with Franny but that Bartel’s own lack of effort contributed to that. Thus, the court concluded that Bartel should not benefit from Daniel’s unclean hands because of his own unclean hands.
(¶22).
Substantive Due Process
Finally, Bartel relies on Jodie W. for the proposition that the statutory ground of abandonment is unconstitutional as applied to his situation. (¶22). COA views Jodie W., which involved an incarcerated parent, as easily distinguishable, however, and faults Bartel for essentially rehashing his “unclean hands” argument as a substantive due process claim. (¶24). COA disagrees that Bartel’s lack of contact “was out of his control” and therefore affirms. (Id.).
