Marathon County Department of Human Services v. S. K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 18, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2021AP1124 Cir. Ct. Nos. 2019TP43
2019TP44
2021AP1125

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

NO. 2021AP1124

IN RE THE TERMINATION OF PARENTAL RIGHTS TO N. C.,
A PERSON UNDER THE AGE OF 18:

MARATHON COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

S. K.,

RESPONDENT-APPELLANT.

NO. 2021AP1125

IN RE THE TERMINATION OF PARENTAL RIGHTS TO A. C.,
A PERSON UNDER THE AGE OF 18:

MARATHON COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.
Nos. 2021AP1124
2021AP1125

S. K.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Marathon County:
GREGORY B. HUBER, Judge. Reversed and cause remanded for further
proceedings.

¶1 STARK, P.J.1 Sarah2 appeals from orders terminating her parental
rights to her two daughters, Nora and Abby, based upon her failure to assume
parental responsibility for them.3 Sarah argues that there are genuine issues of
material fact and competing reasonable inferences as to whether she had a
substantial relationship with her children. She asserts that the circuit court
therefore erred by granting partial summary judgment to the Marathon County
Department of Human Services (the County) and finding her unfit during the
grounds phase of these termination of parental rights (TPR) proceedings.

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reading and to protect confidentiality, we refer to the appellant in this
confidential matter using a pseudonym, rather than her initials, and do the same for any of Sarah’s
family members referenced in this opinion.
3
Cases appealed under WIS. STAT. RULE 809.107 “shall be given preference and shall
be taken in an order that ensures that a decision is issued within 30 days after the filing of the
appellant’s reply ….” See RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in
a delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in
this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680,
694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this
decision is issued.

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¶2 We conclude that when viewed in the light most favorable to Sarah,
there are competing material and reasonable inferences that can be drawn from the
undisputed facts as to whether Sarah had a substantial relationship with her
daughters, rendering summary judgment improper. Accordingly, we reverse the
orders terminating Sarah’s parental rights to Nora and Abby, and we remand for
the circuit court to conduct a jury trial on the grounds phase of the TPR
proceedings.

BACKGROUND

¶3 The following facts are taken from the parties’ submissions on
partial summary judgment. Sarah’s daughters, Nora and Abby, were born
approximately ten months apart in 2012. Sarah had exclusive care of both girls for
the first four years of their lives, and they resided with her full-time in Wausau.
During this time, Sarah provided for her children’s daily supervision, education,
protection and care.

¶4 Sarah was incarcerated seven times between December 2012 and
November 2016, all while her children lived with her. Six of the seven periods of
incarceration were for a term of three days or less, and they totaled approximately
six and one-half weeks. Among the criminal offenses underlying these periods of
incarceration were convictions for battery, injury by negligent use of a weapon,
possession of tetrahydrocannabinols and prostitution. Sarah had not been
incarcerated for any offenses for approximately two years before the children were
removed from her home.

¶5 In November 2016, while Sarah’s boyfriend was at her home in
violation of a no-contact order resulting from a domestic abuse incident, he was

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arrested for possessing drugs. Sarah was also arrested and incarcerated for
violating her probation conditions due to her use of alcohol and illegal drugs.

¶6 As a result of Sarah’s incarceration, Nora and Abby were found to
be children in need of protection or services (CHIPS) and they were placed outside
of Sarah’s home. Among the conditions for the return of her children, Sarah was
required to: (1) maintain a stable, drug-free residence; (2) provide proof of regular
employment; (3) schedule medical and other appointments for the children;
(4) participate in counseling; and (5) provide financial support for the children.
The social worker assigned to the case confirmed that Sarah failed to meet the
required conditions such that Sarah’s children could be returned to her home at
any time before the TPR orders were entered.

¶7 Upon their removal from Sarah’s home, Nora and Abby were
originally placed with their maternal grandfather. In April 2017, they were placed
in the care of their aunt and uncle (the Robinsons), where they stayed until April
2019. Thereafter, the girls were placed in foster care approximately 150 miles
from Wausau. At that time, Sarah’s in-person visits with the children were
suspended and she was only allowed weekly phone calls with her daughters. The
foster mother maintained a log of Sarah’s calls with her daughters. The log
showed that Sarah often asked the girls about school and on one occasion inquired
about a doctor’s appointment. Routinely, Sarah simply asked them what they
were up to and frequently expressed her love for them.

¶8 Since December of 2016, Sarah has been arrested an additional five
times for drug and prostitution-related offenses. While incarcerated between
August 2017 and February 2018, Sarah called her children weekly, they visited her
while she was in jail, and Sarah wrote the children letters periodically.

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¶9 The County filed petitions to terminate Sarah’s parental rights to
Nora and Abby on November 5, 2019. The petitions alleged two grounds for
termination of Sarah’s rights: (1) CHIPS under WIS. STAT. § 48.415(2)(a); and
(2) failure to assume parental responsibility under § 48.415(6)(a).4 In May 2020,
the County filed a motion for partial summary judgment during the grounds phase
of the TPR actions, arguing that Sarah was unfit as a matter of law due to her
failure to assume parental responsibility for both children.5

¶10 The Robinsons each submitted an affidavit in the TPR proceedings
detailing that Sarah visited her children throughout 2017 and made “about 75% or
more” of her scheduled visits during that year, and 60% to 70% of her scheduled
visits during 2018. The Robinsons subsequently filed a second, joint affidavit,
explaining that they had been unable to fully explain the situation through the first
set of affidavits. The Robinsons clarified that when not in jail, Sarah often arrived
late to, or left early from, her scheduled visits with her children, she “actively used
controlled substances during the time the children were placed with [the
Robinsons],” and she was not regularly present for school pick-up or bedtimes.
Additionally, they stated that “[Sarah] did not express an interest in the
responsibilities of daily parenting,” and that she “was not involved in providing
[her children] education or guidance and was not involved in parental discipline.”

4
The County also petitioned to terminate the parental rights of Nora and Abby’s father.
He has not raised any challenges to the outcome of those TPR petitions and his rights are not at
issue in these appeals.
5
The County petitioned to terminate Sarah’s parental rights to Nora and Abby in
November 2019 and the matter was scheduled for a jury trial. The trial was delayed, however, as
a result of the COVID pandemic. The County then moved for summary judgment and the circuit
court entered the relevant summary judgment order in November 2020.

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¶11 The circuit court granted the County’s motion, concluding that there
was no genuine issue of material fact as to Sarah’s unfitness and that Sarah “had
not taken a substantial role in her children’s lives.” The court determined that
Sarah played “little to no” part in her children’s lives while they were placed with
the Robinsons, and that exposing her children to criminal activity while they lived
with her evidenced Sarah’s failure to exercise “significant responsibility” for her
children’s protection and care. The court stated that Sarah’s evidence to the
contrary “at most … [offered] a more favorable angle on the same facts by eliding
some of the details.”

¶12 The circuit court then determined that the only remaining issue was
the conclusion to be drawn from the undisputed facts. The court concluded,
“[T]he mother’s evidence of limited, sporadic activity is insufficient to show that
she accepted and exercised significant responsibility for the daily supervision,
education, protection, and care of these two children.”

¶13 A dispositional hearing was held on March 23, 2021. Following that
hearing, the circuit court terminated Sarah’s parental rights to both children. Sarah
now appeals from the TPR orders.

DISCUSSION

¶14 Sarah’s sole argument on appeal is that the circuit court improperly
granted partial summary judgment in favor of the County during the grounds
phase of the TPR proceedings because the court chose between competing
reasonable inferences that could have been drawn from the undisputed facts.
Ultimately, we agree with Sarah that competing inferences can be drawn from
those facts, and when reasonably construed in her favor, they preclude the court

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from concluding as a matter of law that Sarah did not have a substantial
relationship with her daughters.

¶15 Partial summary judgment is only appropriate during the grounds
phase of TPR proceedings if the moving party establishes that there is no genuine
issue as to any material fact and that it is entitled to judgment as a matter of law.6
Steven V. v. Kelley H., 2004 WI 47, ¶6, 271 Wis. 2d 1, 678 N.W.2d 856. A
factual issue is “genuine” if the evidence is such that a reasonable jury could
return a verdict in favor of the nonmoving party. Schmidt v. Northern States
Power Co., 2007 WI 136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. Importantly,
summary judgment should not be granted if differing reasonable inferences can be
drawn from the undisputed facts. Tews v. NHI, LLC, 2010 WI 137, ¶42, 330
Wis. 2d 389, 793 N.W.2d 860. The nonmoving party is entitled to the benefit of
all favorable facts, and all reasonable inferences must be drawn in the nonmoving
party’s favor. Oddsen v. Henry, 2016 WI App 30, ¶26, 368 Wis. 2d 318, 878
N.W.2d 720. We review a grant of summary judgment independently, using the
same methodology as the circuit court. PNC Bank, N.A. v. Bierbrauer, 2013 WI
App 11, ¶9, 346 Wis. 2d 1, 827 N.W.2d 124 (2012).

¶16 Summary judgment may be appropriate in certain fact-intensive TPR
proceedings if no material facts are disputed. See Brown Cnty. Hum. Servs. v.
B.P., 2019 WI App 18, ¶51 386 Wis. 2d 557, 927 N.W.2d 560. This

6
Wisconsin has a two-part procedure for an involuntary TPR. The focus in the initial
grounds phase is on the parent, and the county must prove by clear and convincing evidence that
the parent is unfit. WIS. STAT. § 48.31(1); Steven V. v. Kelley H., 2004 WI 47, ¶¶3-4, 271
Wis. 2d 1, 678 N.W.2d 856. If the parent is found to be unfit, the focus in the subsequent
dispositional phase is on the child, and the court must decide if it is in the child’s best interests
that the parent’s rights be terminated. WIS. STAT. § 48.426(2); Steven V., 271 Wis. 2d 1, ¶27.

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determination, however, is made on a case-by-case basis, and summary judgment
“will ordinarily be inappropriate for TPR cases premised on … fact-intensive
grounds for parental unfitness.” See Steven V., 271 Wis. 2d 1, ¶51. The failure to
assume parental responsibility is one of the fact-intensive grounds on which
summary judgment is ordinarily inappropriate. Id.

¶17 The circuit court concluded that there were no material disputed
facts regarding Sarah’s behavior and the history of her care for her children as
detailed in the various affidavits. Importantly, neither party identifies any
significant factual discrepancies in their respective appellate briefs.7 Nevertheless,
Sarah contends that the court improperly granted the County partial summary
judgment because the court chose between competing reasonable inferences that
could have been drawn from the undisputed facts.

¶18 In order to prove failure to assume parental responsibility under WIS.
STAT. § 48.415(6), the County had the burden to prove by clear and convincing
evidence that “the parent … [has] not had a substantial parental relationship with
the child.” See WIS. STAT. §§ 48.31(1), 48.415(6)(a). A “substantial parental
relationship” means

the acceptance and exercise of significant responsibility for
the daily supervision, education, protection and care of the
child. In evaluating whether the person has had a
substantial parental relationship with the child, the court
may consider such factors, including, but not limited to,
7
In her reply brief, Sarah argues that certain factual discrepancies exist. She claims that,
contrary to the County’s contentions, she scheduled medical appointments for her children after
they were removed from her care. Additionally, Sarah notes that the County claimed she did not
maintain a safe residence without providing any evidence as to why the places she lived were
unsafe. Given the totality of the circumstances, these are not material factual discrepancies such
that they alone preclude summary judgment.

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whether the person has expressed concern for or interest in
the support, care or well-being of the child, whether the
person has neglected or refused to provide care or support
for the child.

Sec. 48.415(6)(b). The question is not whether a parent has assumed
responsibility for the child “at one point,” but instead whether a parent, based on
the totality of the circumstances, has assumed responsibility for the child “over the
entirety of the child’s life.” Tammy W-G v. Jacob T., 2011 WI 30, ¶¶22, 26, 333
Wis. 2d 273, 797 N.W.2d 854.

¶19 Here, the circuit court concluded that by Sarah missing between
twenty-five and fifty percent of her visits with her children while they were placed
outside of her home, Sarah had “less contact with the children as time has gone
on,” and that, as a result, “the proof does not suggest that [Sarah] ‘accepte[d] and
exercise[d] … significant responsibility for the daily supervision, education,
protection and care’ of these two children.” Sarah asserts, and we agree, that the
court erred by focusing on the nature and extent of her relationship with her
children after their removal from her care, rather than considering the totality of
the circumstances that occurred over the entirety of her daughters’ lives.

¶20 In concluding that Sarah failed to assume parental responsibility for
her children, the circuit court appeared to give little weight to the nature and extent
of Sarah’s relationship with her children prior to their removal from her care. Yet,
the failure to assume parental responsibility ground is an assessment spanning “the
entirety of the child’s life.” See Tammy W-G, 333 Wis. 2d 273, ¶23. Sarah’s
summary judgment submissions evidenced the care, supervision, and continuing
support that she alone provided to her children during the first four years of their
lives including feeding them, scheduling and attending medical appointments, and

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providing for their emotional needs. Differing reasonable inferences could be
drawn from the nature of Sarah’s relationship with her daughters when
considering the amount of parental supervision and care she provided over the
entirety of her children’s lives. We therefore conclude the court erred by
concluding that Sarah had no substantial relationship with her daughters, as a
matter of law, based primarily on the quality of Sarah’s relationship with them
after they were removed from her care.

¶21 In response, the County argues that even if we consider Sarah’s
“exclusive” care of her children for the first four years of her children’s lives, she
was nevertheless incarcerated seven separate times during that period and exposed
the children to criminal behavior. The County argues that no inference can be
drawn from these facts other than that “[Sarah] was not exercising care and
custody of the children for much of the time prior to their removal,” and that her
actions exposed her children to a hazardous environment.

¶22 Contrary to the County’s argument, a jury could reasonably infer
that despite her periods of incarceration, Sarah had a substantial relationship with
her children prior to their removal from her care. Sarah spent a limited amount of
time in jail during this period—a total of six weeks over a four-year period—and
all of that time was served almost two years before the children were removed
from her care.

¶23 Furthermore, although it is undisputed that Sarah engaged in
criminal activity during this period, the County provided no evidence on summary
judgment that the children were directly exposed to any of Sarah’s criminal
activity, or that it had a negative influence upon them, particularly given their
young ages. Given the care, supervision, and continuing support that Sarah alone

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provided to her children during the first four years of their lives, a jury could
reasonably conclude that Sarah was able to maintain a safe and loving home
environment and fulfill her parental responsibilities despite her periods of
incarceration and her criminal activity during that time.

¶24 Sarah also argues that the circuit court erred by evaluating the nature
and extent of her relationship with the children after their removal from her care.
Sarah contends that a jury could reasonably infer from her attending seventy-five
percent of her visits with her children, playing with her children, assisting in
putting her children to bed, and attending several medical appointments with them
that she had a substantial relationship with her children. We agree that a jury
would be entitled to conclude that the inferences drawn from these facts,
interpreted in the light most favorable to Sarah, support a finding that Sarah
assumed parental responsibility for her children. The court therefore erred by
failing to draw those inferences in Sarah’s favor, as it was required to do in the
context of the County’s partial summary judgment motion.

¶25 Sarah further argues that the circuit court improperly weighed her
credibility and that of the Robinsons and drew inferences in favor of the County
from the Robinsons’ affidavits, such as by placing emphasis upon the Robinsons’
statements about the number of scheduled visits Sarah had missed, rather than the
number she attended. She asserts that the court improperly conducted a “trial on
affidavits,” see Balcom v. Royal Ins. Co., 40 Wis. 2d 351, 357, 161 N.W.2d 918
(1968), which contributed to the court’s conclusion that Sarah “has not taken a
substantial role in her children’s lives.” She additionally asserts that the court’s
use of the affidavits to weigh credibility and competing inferences resulted in the
court affording certain facts from later in her children’s lives greater significance

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in the unfitness analysis than the uncontested evidence regarding the care and
supervision that Sarah provided to the children before they were placed outside of
her home.

¶26 We agree with Sarah that the circuit court erred by choosing between
reasonable inferences in concluding that the number of Sarah’s missed visits, or
her failure to sometimes attend the children’s bedtimes or to schedule their
medical appointments, outweighed the significance of the visits Sarah did attend
and the love, care and supervision that she provided during those visits, and prior
to the children’s removal from her care. This weighing of reasonable, differing
inferences is not proper for a court in deciding a summary judgment motion. See
Tews, 330 Wis. 2d 389, ¶42.

¶27 The County argues that while Sarah’s children were placed out of
her home, she was not involved in scheduling their appointments or meeting their
daily care needs, she arrived late or left early for scheduled visits, she missed visits
and phone calls, she was not involved in the daily responsibilities of raising her
own children, and she did not contribute to their support. These facts, according
to the County, amount to undisputed evidence that Sarah did not exercise
supervision over or assume parental responsibility for her children.

¶28 Again, however, this argument requires us to weigh the nature and
extent of Sarah’s relationship with her children before and after their removal to
determine whether she maintained a substantial relationship with them under the
totality of the circumstances. Summary judgment should not be granted if
differing reasonable inferences can be drawn from the undisputed facts. Id.

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¶29 Ultimately, we conclude that summary judgment is inappropriate in
this case. The circuit court improperly concluded that, as a matter of law, the
County met its burden regarding Sarah’s parental unfitness. Accordingly, we
reverse and remand for the circuit court to conduct a jury trial on the grounds
phase of these TPR proceedings.

By the Court.—Orders reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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