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Admission of child’s desire for TPR and father’s prior willingness harmless

R.J.M. v. M.R.H., 2016AP1307, 9/22/2016, District 4 (1-judge decision, ineligible for publication); case activity

M.R.H. appeals the termination of his parental rights to his son, arguing that the jury during the grounds phase should not have heard (1) that he had previously been willing to voluntarily terminate his rights or (2) that his son wanted to be adopted by his stepfather. The court of appeals calls this evidence “problematic” but holds its admission harmless.

 The evidence at issue was that

  • After R.J.M. filed the petition, but before trial, M.R.H. offered to voluntarily terminate his parental rights to C.H. so that, if C.H. wanted, C.H. could be adopted by C.H.’s stepfather;
  • C.H. wrote a letter to M.R.H. stating that C.H. wanted to be adopted by C.H.’s stepfather and that C.H. did not want M.R.H. to continue to “fight for” C.H.;
  • Some time after receiving the letter, M.R.H. changed his mind about voluntarily terminating his parental rights and decided to continue contesting the termination proceedings.

The circuit court gave a limiting instruction telling the jury to consider M.R.H.’s willingness to terminate his parental rights only for purposes of whether M.R.H. has had a substantial parental relationship with C.H., rather than whether M.R.H. had abandoned C.H. (¶6). It gave no such instruction regarding C.H.’s desire to be adopted by his stepfather.

The court of appeals agrees with M.R.H. that this evidence, at a minimum, “carried a significant risk of unfair prejudice and confusion of the issues during the grounds phase.” (¶12). However, assuming its admission was error, the court finds it harmless because of the limiting instruction and because of the strength of the evidence regarding M.R.H.’s abandonment of his son.

The court acknowledges that the limiting instruction did not address the evidence about C.H.’s wishes, but asserts that because this evidence “went hand in glove with M.R.H.’s offer to voluntarily terminate his parental rights,” “the jury would have understood that the limiting instruction covered the topic of C.H.’s wish to be adopted by his stepfather as well as M.R.H.’s willingness to facilitate the adoption by voluntarily terminating his parental rights. “(¶20).

The court’s logic here is a bit elusive; the opinion does not provide a convincing explanation as to how the jury would have reached such a conclusion. The court’s claim is also difficult to square with its pronouncement, in the preceding paragraph, that courts “presume that the jury follows the instructions given to it.” (¶19).

In any case, the court finds the evidence on the abandonment ground so strong, and M.R.H.’s defense of good cause so weak, that the jury would not have reached a different result absent the problematic evidence. (¶¶23-29).

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