COA finds that “impossibility” is not a defense to failure to assume a parental relationship; affirms TPR
State v. K.T.R., 2026AP929, 10/14/26, District II (ineligible for publication); case activity
COA holds that the jury’s “impossibility” finding with respect to the continuing CHIPS allegation does not “carry over” to the failure to assume ground and affirms an order terminating parental rights.
The State filed a petition alleging three grounds: (1) failure to assume parental responsibility; (2) continuing CHIPS; and (3) abandonment. (¶5). The case was complicated by the fact that “Keenan” had a number of criminal cases occurring around the same time which resulted in both incarceration and no-contact orders with his child.
The jury therefore found that with respecting to the continuing CHIPS, it was “impossible” for Keenan to meet the conditions of return and dismissed that ground. (¶10). The jury also did not find that Keenan had failed to visit or communicate with his child for a period of three months of longer, meaning the abandonment ground was also dismissed. (Id.). However, it found in favor of the State on the failure to assume ground. (Id.). Following the denial of his motion for JNOV, Keenan renews his arguments against that verdict on appeal.
Denial of JNOV
COA applies a deferential standard of review to the circuit court’s denial of the JNOV motion and asks “whether the movant should have judgment for reasons other than those decided by the jury.” (¶17). Essentially, Keenan argues that the jury’s decision as to impossibility–and the no-contact order prohibiting his contact with the child–made it equally “impossible” for him to assume a parental relationship. (¶20). COA believes he is trying to “impute an automatic exception for no-contact orders” into the statute governing failure to assume parental responsibility, just as the abandonment ground explicitly recognizes under § 48.415(1)(b). (¶21). However, “the abandonment ground’s categorical tolling rule does not apply to the failure to assume parental responsibility ground.” (Id.). Instead, the failure to assume ground mandates a “totality of the circumstances” analysis. (Id.). While the existence of a no-contact order was therefore relevant to the jury, “it is not an automatic defense.” (¶24). In addition, the statute appears to recognize ways a person can assume a parental relationship, notwithstanding a no-contact order such as “whether Keenan ‘expressed concern for or interest in the support, care or well-being of the child’ and whether Keenan ‘expressed concern for or interest in the support, care or well-being of the mother during her pregnancy.'” (¶26).
Unconstitutional as Applied
Keenan argues that a parent cannot be “penalized for failing to do something he was prohibited from doing.” (¶29).However, his cited authority refers to the abandonment exception and is inapplicable here. (Id.). It also rejects a broad reading of Jodie W., which dealt with the continuing CHIPS ground and is, in COA’s view, also inapplicable in this case. (¶31) Here, the jury was properly instructed to apply a totality of the circumstances analysis, which allowed them to consider both the existence of the no-contact orders and the way in which Keenan could have manifest a relationship notwithstanding. (¶32).