Deannia D. Ex Rel. Weiss v. Lamont D.

WEDEMEYER, RJ.

¶ 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*501puted that the answer to the first part of the special verdict question specifically addressing "visits" could not have been answered "No." The remaining issue then, is whether there is any credible evidence from which the jury could conclude that Lamont actually communicated with Deannia.

¶ 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.

*502¶ 24. Accordingly, the record conclusively establishes that there could not have been any communication with Deannia, through Elizabeth, via the letters from December 10, 2002, until June 17, 2003, because Elizabeth did not have any contact with Deannia. This period of time satisfies the six-month abandonment period within the statute. Based on the foregoing, there is no credible evidence to support the jury's negative answer to special verdict question number three. Therefore, the trial court erred in denying the State's motion seeking to change the answer.

¶ 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*503ber three from "No" to "Yes" and for determination of the remaining special verdict questions, which address the issue of good cause.

¶ 27. For these reasons, I respectfully dissent.