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Court of appeals affirms “keys to the door” instruction and sufficiency of evidence in TPR case

K.M. v. R.O., 2018AP1206, District 1, 9/18/18 (1-judge opinion, ineligible for publication); case activity

One ground for terminating a person’s parental rights is that the parent “abandoned” his child for 6 months or longer. In this case, a court ordered R.O. to have no contact with the mother of his child, which interfered with his visitation efforts. This appeal stems from the trial court’s customization of a jury instruction to address that problem and from the jury’s finding that R.O. had failed to assume parental responsibility.

On the issue of “abandonment,” the trial court gave the jury this boilerplate instruction: “[i]n calculating any period during which communication did not occur, the jury should not include any period during which the parent was prohibited by judicial order from communicating with the parent.” (Opinion ¶15) But then the trial court added a sentence:

However, a court order which prohibits a parent from visiting and/or communicating until the parent meet certain conditions which the parent can meet through reasonably diligent efforts does not “prohibit” visitation and/or communication. (Opinion¶15)

The jury found grounds that R.O. abandoned his child and failed to assume responsibility. He objected to the sentence added to the standard jury instruction. The court of appeals held was addition was appropriate under the “keys to the door” rule approved by Carla B. v. Timothy N., 228 Wis. 2d 695, 706, 598 N.W.2d 924 (Ct. App. 1999).

In particular, when R.O. was sentenced for the attempted homicide conviction in
September 2012, he was prohibited from having contact with Z.J.E. until he was adjudicated as her father. He never did so. Additionally, prior to that—in March 2012, when R.O.’s bail conditions were modified after the roof incident to prohibit contact with K.M. and her family—the criminal court still permitted third-party contact with K.M. “to facilitate visitation with [the] child or to facilitate childcare
issues[.]” R.O. did not pursue that option, either.  (Opinion ¶17).

R.O. also argued that there was insufficient evidence to support the verdict that he had failed to assume parental responsibility. The court of appeals disagreed:

¶22 The evidence in this case showed that: while R.O. was living with Z.J.E., K.M., and her parents, he provided very little in the way of care and financial support for Z.J.E.; he abused alcohol and displayed violent behavior toward K.M. when he was intoxicated; and he was reckless with loaded firearms. Furthermore, his violent behavior seemed to be escalating, as he had to be removed from the roof of the residence while trying to gain entry after sending threatening texts to K.M. He was also, of course, convicted of attempting to kill a man over a minor altercation. This evidence overwhelmingly shows that R.O. was not assuming parental responsibility for the care and protection of Z.J.E.

¶23 Moreover, although there were no-contact orders in place after his arrest for the roof incident, R.O. still had the opportunity to be allowed communication and visitation with Z.J.E. by initiating proceedings to establish his paternity. Furthermore, he was subsequently ordered by the sentencing court for his 2015 OWI conviction to commence paternity proceedings within two weeks of that sentencing; indeed, he was advised by that court that the responsibility of establishing paternity was solely up to him. R.O. ignored that order. This failure to take action to establish paternity—especially given that communication and visitation with Z.J.E. was dependent on it—is also indicative of a failure to assume parental responsibility.

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