Barron County Department of Health and Human Services v. M. S.

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.
December 17, 2020
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 No. 2020AP1257 Cir. Ct. No. 2019TP2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

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

BARRON COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

M. S.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Barron County:
J. MICHAEL BITNEY, Judge. Affirmed.
No. 2020AP1257

¶1 SEIDL, J.1 Mark appeals an order involuntarily terminating his
parental rights to his daughter, Laura.2 At the grounds phase of Mark’s
termination of parental rights (TPR) proceedings, the Barron County Department
of Health and Human Services (the Department) moved for partial summary
judgment on the ground of abandonment. In addition to opposing the motion on
its merits, Mark moved to dismiss the Department’s partial summary judgment
motion on the basis that it was untimely under WIS. STAT. § 802.08(1), which
provides the summary judgment procedure in civil cases. Following a hearing, the
circuit court rejected Mark’s motion and granted the Department’s motion.

¶2 Mark argues on appeal that the circuit court lacked authority to
consider the Department’s motion because it was filed well after the eight-month
time period prescribed by WIS. STAT. § 802.08(1). In the alternative, Mark argues
that genuine issues of material fact precluded the court from granting the
Department partial summary judgment. We reject Mark’s arguments and affirm.

BACKGROUND

¶3 On July 28, 2017, when Laura was six years old, she was removed
from her mother’s home by the Department and eventually placed in a foster
home. Laura was adjudicated a child in need of protection or services (CHIPS) on
November 21, 2017.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Following M.S.’s lead, and pursuant to the policy underlying WIS. STAT. RULE 809.86,
we refer to him using the pseudonym “Mark.” We also use a pseudonym when referring to his
daughter.

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No. 2020AP1257

¶4 On January 24, 2019, the Department filed a TPR petition alleging,
as relevant to the issues on appeal, that Mark had abandoned Laura.3 See WIS.
STAT. § 48.415(1)(a)2. The matter proceeded to a jury trial at the grounds phase,
which began on November 4, 2019. For reasons unrelated to the issues on appeal,
the circuit court declared a mistrial.

¶5 During a telephone conference with the parties on November 19,
2019, the circuit court ordered that any pretrial motions or motions in limine were
to be filed by December 27, 2019. That deadline for pretrial motions was included
in a hearing notice sent to the parties after the telephone conference.

¶6 On December 23, 2019, the Department moved for partial summary
judgment on the abandonment ground. Mark opposed the motion, asserting that
there were genuine issues of material fact in dispute. Additionally, he later moved
to dismiss the Department’s motion, arguing it was untimely under WIS. STAT.
§ 802.08(1). Section 802.08(1) provides that a party may file a summary
judgment motion “within 8 months of the filing of a summons and complaint or
within the time set in a scheduling order under s. 802.10.” Because approximately
eleven months had elapsed from the time the Department petitioned for a TPR,
Mark asserted § 802.08(1) precluded the circuit court from considering the
Department’s partial summary judgment motion.

¶7 On April 1, 2020, the circuit court held a hearing on both parties’
motions. It first addressed Mark’s motion to dismiss. The court agreed with the
Department that the court’s “earlier directives,” as stated on November 19, 2019,

3
The Department also petitioned to terminate the parental rights of Laura’s mother. Her
parental rights are not at issue in this appeal.

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No. 2020AP1257

would have included summary judgment motions and constituted a formal pretrial
scheduling order under WIS. STAT. § 802.10. Because the Department made its
motion prior to the deadline that the court established on November 19, the court
concluded the Department’s motion was timely.

¶8 Additionally, the circuit court determined that even if its earlier
directives could not be considered a formal pretrial scheduling order, the court had
discretion to enlarge the WIS. STAT. § 802.08(1) eight-month time period within
which a party can move for summary judgment. The court agreed with Mark that
a party can move for summary judgment outside of the eight-month time period if
the court finds that the moving party’s failure to act was the result of excusable
neglect. See WIS. STAT. § 801.15(2)(a). The court then concluded there were
reasonable grounds for the Department’s noncompliance with § 802.08(1)’s
eight-month time period:

In this case, … in review of its entire file and the pleadings
that are before the Court, there’s nothing that’s been done
to prejudice [Mark’s] rights in terms of contesting the
involuntary TPR petition and the grounds … simply on the
basis of the timing of the motion filed by the Department
for partial summary judgment.

¶9 The circuit court next addressed the merits of the Department’s
partial summary judgment motion, concluding the undisputed material facts
demonstrated that Mark had abandoned Laura. The court determined that Mark’s
affidavit opposing the motion contained only “bold, vague, nonspecific,
unsupported allegation[s]” regarding his failure to communicate with Laura and
that Mark’s allegations were insufficient to defeat the Department’s motion.
Accordingly, the court granted the Department partial summary judgment as to
grounds for terminating Mark’s parental rights, and it determined him to be an
unfit parent.

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¶10 At the dispositional hearing, the circuit court determined that
terminating Mark’s parental rights was in Laura’s best interests. Mark now
appeals. Additional facts are discussed below as necessary.

DISCUSSION

¶11 Mark’s appellate arguments concern only the circuit court’s grant of
partial summary judgment at the grounds phase of the TPR proceedings. He
argues the court erred in two ways. First, he asserts it erred by denying his motion
to dismiss the Department’s partial summary judgment motion as untimely.
Second, Mark argues the court erred by granting the Department partial summary
judgment. He contends his opposing affidavit created genuine issues of material
fact as to whether he failed to communicate with Laura or, in the alternative, as to
whether he had good cause for abandoning her. We address, and reject, each
argument in turn.

I. Mark’s Motion to Dismiss

¶12 Mark argues the Department’s partial summary judgment motion
was untimely under WIS. STAT. § 802.08(1) and, therefore, the circuit court erred
by not granting his motion to dismiss the Department’s belated motion. The
Department responds that the court has discretionary authority outside of
§ 802.08(1) that permitted the court to entertain the Department’s partial summary
judgment motion, even assuming it was untimely. Accordingly, this issue
involves questions of statutory interpretation and, potentially, of a circuit court’s
discretionary decision. The interpretation and application of a statute present
questions of law that we review de novo while benefiting from the circuit court’s
analysis. Brown Cnty. Hum. Servs. v. B.P., 2019 WI App 18, ¶10, 386 Wis. 2d
557, 927 N.W.2d 560. We will not upset a circuit court’s discretionary decision,

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No. 2020AP1257

however, unless such discretion was erroneously exercised. Hess v. Fernandez,
2005 WI 19, ¶12, 278 Wis. 2d 283, 692 N.W.2d 655. A circuit court properly
exercises its discretion when it examines the relevant facts, applies a proper legal
standard, and uses a demonstrated rational process to reach a reasonable
conclusion. Id.

¶13 The rules of civil procedure govern TPR proceedings under WIS.
STAT. ch. 48 unless that chapter prescribes a different procedure. See WIS. STAT.
§ 801.01(2); Steven V. v. Kelley H., 2004 WI 47, ¶32, 271 Wis. 2d 1, 678 N.W.2d
856. Both parties agree that the TPR statutes do not prescribe a procedure for the
filing of summary judgment motions different than provided in WIS. STAT.
§ 802.08. See Steven V., 271 Wis. 2d 1, ¶33.4

4
We question the validity of the parties’ apparent agreement that the TPR statutes do not
prescribe a procedure different from WIS. STAT. § 802.08 for TPR cases. For that proposition,
they rely on Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856. One of the
main holdings in Steven V. is that the summary judgment procedure is permitted at the grounds
phase of TPR proceedings. Id., ¶39. In so holding, our supreme court observed: “There is
nothing in the TPR statutes that explicitly or implicitly prohibits the use of summary judgment
procedure under … § 802.08 in the unfitness phase of a TPR case. Nor do the TPR statutes
prescribe a procedure different from … § 802.08 for TPR cases ….” Steven V., 271 Wis. 2d 1,
¶33. Both parties cite to that part of Steven V. in stating that there are no relevant statutes in WIS.
STAT. ch. 48 that could provide the circuit court with authority to hear a partial summary
judgment motion outside of the eight-month time period prescribed by § 802.08(1).

This court’s independent research, however, revealed two statutory provisions in WIS.
STAT. ch. 48 that might relate to the time period in which a summary judgment motion can be
brought, and, thus, could be construed as a procedure different from that set forth in WIS. STAT.
§ 802.08. WISCONSIN STAT. § 48.297(1) provides: “Any motion which is capable of
determination without trial of the general issue may be made before trial.” Additionally,
§ 48.297(2) states:

(continued)

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No. 2020AP1257

¶14 WISCONSIN STAT. § 802.08 outlines the summary judgment
procedure in civil actions. Subsection (1) provides that “[a] party may, within 8
months of the filing of a summons and complaint or within the time set in a
scheduling order under s. 802.10, move for summary judgment on any claim ….”
Section 802.10(3), in turn, grants a circuit court authority to issue scheduling
orders on its own motion or on the motion of a party. However, § 802.10
expressly does not apply to actions under WIS. STAT. ch. 48—i.e., the Children’s
Code that governs TPR proceedings, among other proceedings. See § 802.10(1)
(“This section applies to all actions and special proceedings except … actions
under ch[.] 48.”).

¶15 To begin, we agree with Mark that the circuit court lacked direct
statutory authority under WIS. STAT. § 802.08 to enlarge the eight-month time

Defenses and objections based on defects in the institution of
proceedings, lack of probable cause on the face of the petition,
insufficiency of the petition or invalidity in whole or in part of
the statute on which the petition is founded shall be raised not
later than 10 days after the plea hearing or be deemed waived.
Other motions capable of determination without trial may be
brought any time before trial.

(Emphasis added.) A summary judgment motion is, by definition, capable of resolution without a
trial. Further, the notion that these provisions encompass summary judgment motions is bolstered
by the fact that they are found within the same subchapter as WIS. STAT. § 48.31(1), which statute
also refers to the summary judgment procedure for a TPR.

Given that Steven V.’s analysis was not focused on the timeliness of a summary
judgment motion, but rather on whether summary judgment was permissible at all in TPR cases,
it is not readily apparent that Steven V. truly held—as the parties represent—that there are no
statutes within the Children’s Code that relate to the time period in which a summary judgment
motion can be brought. We therefore question whether the parties read Steven V. too broadly.
Nevertheless, because the parties agree that WIS. STAT. ch. 48 should not be relied upon here and
because neither party cites to WIS. STAT. § 48.297(1) and (2) in their arguments, we do not rely
upon § 48.297(1) and (2) in concluding that the circuit court was permitted to allow the
Department to file its partial summary judgment motion outside of the eight-month time period
prescribed by WIS. STAT. § 802.08(1).

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No. 2020AP1257

period pursuant to a scheduling order issued under WIS. STAT. § 802.10 because
the latter statute does not apply in WIS. STAT. ch. 48 actions. We therefore
conclude that the court lacked direct authority under § 802.08(1) to permit the
Department’s filing of its December 23, 2019 partial summary judgment motion as
it was filed more than eight months after the TPR petition was filed.

¶16 Nonetheless, circuit courts have inherent power, within the limits of
their discretion, to control their dockets. See Hefty v. Strickhouser, 2008 WI 96,
¶31, 312 Wis. 2d 530, 752 N.W.2d 820. This power of docket control is also
granted by statute. Id. (citing WIS. STAT. § 802.10).5 Consistent with its inherent
and statutory powers to manage its docket, a court has broad discretion in deciding
how to respond to untimely motions. See Lentz v. Young, 195 Wis. 2d 457, 465-
66, 536 N.W.2d 451 (Ct. App. 1995), overruled on other grounds by Maple Grove
Country Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, ¶¶46-48,
386 Wis. 2d 425, 926 N.W.2d 184. Accordingly, “the eight-month deadline is not
an inflexible rule that the trial courts must blindly apply.” Id. at 465. Importantly,
WIS. STAT. ch. 48 does not appear to limit this inherent authority. See supra, n.5.

¶17 Moreover, even if a deadline to file a summary judgment motion has
already had elapsed, a circuit court has the discretion to enlarge the time under
WIS. STAT. § 801.15(2)(a). See Thorp v. Town of Lebanon, 225 Wis. 2d 672,
683, 593 N.W.2d 878 (Ct. App. 1999), aff’d, 2000 WI 60, 235 Wis. 2d 610, 612
N.W.2d 59. The circuit court may grant relief under § 801.15(2)(a) if it finds
reasonable grounds for noncompliance with the statutory time period—i.e.,

5
Although WIS. STAT. § 802.10 does not apply to TPR proceedings, there are provisions
of the Children’s Code that, as noted previously, appear to give the circuit court some statutory
power to control its docket. See WIS. STAT. §§ 48.297(1), (2); 48.315(2), (3).

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No. 2020AP1257

“excusable neglect”—and if the interests of justice would be served by the
enlargement of time—e.g., that the party seeking an enlargement of time has acted
in good faith and that the opposing party is not prejudiced by the time delay.
Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982).
“Excusable neglect” means “neglect which might have been the act of a
reasonably prudent person under the same circumstances.” Id. (citation omitted).
The party seeking relief need not file a motion for the enlargement of time, and the
court need not use the term “excusable neglect.” Thorp, 225 Wis. 2d at 683.
“What is critical is that the court explain its analysis, and that its analysis is
reasonable.” Id. at 683-84.

¶18 Our supreme court in Hedtcke further held that “[w]hen the circuit
court sets forth no reason or inadequate reasons for its decision, this court may
engage in its own examination of the record and determine whether the circuit
court exercised its discretion and whether the facts provide support for the circuit
court’s decision.” Hedtcke, 109 Wis. 2d at 471. The Hedtcke court went on to
hold that this ab initio review includes assessing whether the circuit court’s
implicit finding of excusable neglect under WIS. STAT. § 801.15(2)(a) was proper.
Hedtcke, 109 Wis. 2d at 472. In conducting such a review, the appellate court
must assume that the circuit court made a finding of excusable neglect as required
by the statute and our prior cases. Id.

¶19 We find Hedtcke instructive because the circuit court here did not
explain the basis for its implicit finding of excusable neglect, other than by stating
that it believed the court had discretionary authority to enlarge the eight-month
time period prescribed by WIS. STAT. § 802.08(1). We therefore assume, as we
must, that in granting the Department’s filing of its motion beyond the
eight-month deadline, the circuit court made an implicit finding of excusable

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No. 2020AP1257

neglect. See Hedtcke, 109 Wis. 2d at 471-72. Accordingly, we now review the
record to determine whether that implicit finding is supported. See id. at 471.

¶20 We determine that the record here does support the circuit court’s
implicit finding that the Department’s noncompliance with WIS. STAT. § 802.08(1)
was the result of excusable neglect.6 The Department reasonably relied on the
court’s directive at the November 19, 2019 telephone conference—which was also
memorialized in a subsequent hearing notice sent to the parties—that it could
bring any pretrial motion by December 27, 2019. That was an act of a reasonably
prudent person under the circumstances. See Hedtcke, 109 Wis. 2d at 468. The
court essentially found as much when it stated that its November 19 directive of
when “to file any pretrial motions or motions in limine included motions such as
the motion pending before the Court for summary judgment.” Moreover, there is
nothing in the record to suggest the Department acted in bad faith by bringing the
motion when it did, nor did the court make any finding in that regard.

¶21 Additionally, the circuit court found Mark was not unreasonably
prejudiced by the timing of the Department’s motion, and the record supports this
finding. Mark was able to respond to the motion, and he does not assert the timing
of the Department’s motion hindered his ability to respond as desired. For the
foregoing reasons, we conclude the court’s decision in allowing the Department to
file its partial summary judgment motion outside of the eight-month time period

6
The deadline for the Department to bring its partial summary judgment motion under
WIS. STAT. § 802.08(1) was September 24, 2019. We acknowledge that we rely on circumstances
occurring after that deadline in concluding the Department’s actions were the result of excusable
neglect. However, neither WIS. STAT. § 801.15(2)(a) nor case law appears to require that the
circumstances relied upon for a showing of excusable neglect to enlarge a deadline need to occur
before the expired deadline.

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No. 2020AP1257

prescribed by WIS. STAT. § 802.08(1) was a proper exercise of the court’s
discretion.

¶22 We are not persuaded by Mark’s arguments to the contrary. He first
argues that the circuit court lacked any authority under WIS. STAT. § 801.15(2)(a)
to permit the Department’s partial summary judgment motion. In Mark’s view,
the court had no authority under § 801.15(2)(a) to enlarge the eight-month time
period because the Department made neither a showing of “cause” nor excusable
neglect, and because the court did not formally enter an “order of enlargement.”
In the same vein, he contends Lentz is materially distinguishable because the party
in that case who sought to file a belated summary judgment motion also filed a
motion to enlarge the time under § 801.15(2)(a). See Lentz, 195 Wis. 2d at 463.

¶23 We reject Mark’s arguments. Here, the Department did not formally
file a motion to enlarge, and the circuit court did not expressly use the term
“excusable neglect” in its decision. However, as noted above, a party seeking
relief under WIS. STAT. § 801.15(2)(a) need not file a motion for an enlargement
of time, and the circuit court need not use the term “excusable neglect”—what is
critical is that the court explain its analysis, and that its analysis is reasonable. See
Thorp, 225 Wis. 2d at 683-84. And, as explained above, the court made an
implicit finding of excusable neglect that we conclude is supported by the record.

¶24 Here, the circuit court correctly observed that it had discretion to
permit the Department’s partial summary judgment motion, and it found that Mark
was not prejudiced by the Department’s delay in filing its motion—which
determination, as previously explained, we conclude was reasonable. Although
the court could have better explained its reasoning on the record, the record
supports the court’s implicit finding that it effectively ordered the enlargement of

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No. 2020AP1257

time for the Department to file its motion, complying with WIS. STAT.
§ 801.15(2)(a). Consequently, we disagree with Mark that Lentz required the
Department to file a formal motion to enlarge the time. Pursuant to
§ 801.15(2)(a), the court properly permitted the Department’s partial summary
judgment motion outside of the eight-month time period prescribed by WIS. STAT.
§ 802.08(1).

¶25 Mark also asserts that the circuit court cannot have the inherent
authority to accept the Department’s motion outside of the eight-month time
period prescribed by WIS. STAT. § 802.08(1) because if the court did, then it would
have unfettered power, “untethered to any statutes, to entertain untimely motions
for summary judgment in TPR cases despite the irrefutable fact that, compared
with other civil cases, a parent in a TPR case is entitled to enhanced procedural
protections ….” Mark’s concerns, however, are overstated. As we explained
above, and as Lentz confirms, the court’s discretionary authority here is rooted in
its inherent authority to control its docket and granted, in part, by at least one
statute, WIS. STAT. § 801.15(2)(a).7 See Lentz, 195 Wis. 2d at 465-66.

¶26 Further, the circuit court’s discretionary decision in this regard is
not, as Mark argues, without limitations. Again, the court must still find
reasonable grounds for noncompliance with the statutory time period, that the
party seeking an enlargement of time has acted in good faith, and that the
opposing party is not prejudiced by the delay. See Hedtcke, 109 Wis. 2d at 468.
The court must also explain its analysis, and its analysis must be reasonable,

7
As noted previously, WIS. STAT. § 48.297(1) and (2) may also give the circuit court
statutory authority in TPR proceedings to entertain the Department’s partial summary judgment
motion outside of the eight-month time period prescribed by WIS. STAT. § 802.08(1).

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No. 2020AP1257

because otherwise the court risks reversal on appellate review. See Thorp, 225
Wis. 2d at 683-84. We are therefore unpersuaded by Mark’s concern that, under
our analysis, a court would have unlimited discretionary authority to entertain
partial summary judgment motions in TPR cases outside of the eight-month time
period prescribed by WIS. STAT. § 802.08(1).

¶27 Finally, Mark asserts that “[t]he grant of partial summary judgment
in a TPR case does not result in the sort of judicial efficiency envisioned in” the
cases upon which we rely. In his view, the circumstances here ran afoul of our
supreme court’s caution in Steven V. that summary judgment is appropriate in
TPR cases only “if carefully administered with due regard for the importance of
the rights at stake and the applicable legal standards.” Steven V., 271 Wis. 2d 1,
¶35.

¶28 The proceedings below did not disregard Mark’s rights or run afoul
of the applicable legal standards. Mark does not argue that the summary judgment
procedure was not followed (other than with regard to the motion’s timeliness)—
he was given notice, an opportunity to respond, and a hearing at which the
Department bore “the burden of demonstrating both the absence of any genuine
factual disputes and entitlement to judgment as a matter of law under the legal
standards applicable to the claim.” Id.; see also WIS. STAT. § 802.08(2), (3). And
as explained below, we conclude upon our independent review—albeit consistent
with the circuit court’s decision—that the Department satisfied this burden in its
summary judgment filings.

¶29 Under these circumstances, judicial efficiency is plainly promoted
by partial summary judgment, especially given the long pendency of the action.
Most TPR cases are resolved expeditiously. See WIS. STAT. § 48.01(1)(gr)

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(stating one of the legislative purposes of WIS. STAT. ch. 48 is “[t]o allow for the
termination of parental rights at the earliest possible time after rehabilitation and
reunification efforts are discontinued in accordance with this chapter and
termination of parental rights is in the best interest of the child”). Yet, as the
circuit court observed, this case had “been pending for some time,” due in part to
the first grounds trial ending in a mistrial. This case had been pending since
January 2019, with the second trial having been scheduled approximately one year
and four months after the petition was filed.

¶30 The circuit court reasonably concluded that permitting the
Department to file its partial summary judgment motion outside of the
eight-month time period would properly expedite the litigation and avoid a
potential waste of judicial time and resources because granting the Department’s
motion, if it had merit, would avoid a multi-day trial and allow for the court to
more immediately hold a dispositional hearing. We therefore reject Mark’s
arguments that granting the Department partial summary judgment did not
promote judicial efficiency and that doing so disregarded the importance of his
parental rights.

II. The Merits of the Department’s Motion for Partial Summary Judgment

¶31 Summary judgment shall be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). We
begin by examining the moving party’s submissions to determine whether they
sufficiently establish a prima facie case for summary judgment. B.P., 386 Wis. 2d
557, ¶33. If they do, we then turn to the opposing party’s submissions to

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determine whether they show material facts are in dispute, such that the opposing
party is entitled to a trial. Id.

¶32 The purpose of summary judgment is to avoid trials when there is
nothing to try. Id., ¶34. Courts do not resolve issues of fact on summary
judgment, but instead only decide whether genuine issues of material fact exist.
Id. A factual issue is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Id. Summary judgment
also should not be granted if differing reasonable inferences can be drawn from
the undisputed facts. Id. All favorable facts and all reasonable inferences from
those facts must be construed in the nonmoving party’s favor. Id. For this reason,
the Department shoulders the burden in TPR cases to show it is entitled to
judgment as a matter of law when, “taking into consideration the heightened
burden of proof specified in WIS. STAT. § 48.31(1) and required by due process,”
there are no genuine factual disputes “regarding the asserted grounds for unfitness
under WIS. STAT. § 48.415.” See Steven V., 271 Wis. 2d 1, ¶6. We review a grant
of summary judgment independently, using the same methodology as the circuit
court. B.P., 386 Wis. 2d 557, ¶34.

¶33 The Department alleged that Mark had abandoned Laura. As
relevant here, the Department is entitled to partial summary judgment on the
ground of abandonment if the undisputed material facts show that Laura “has been
placed, or continued in a placement, outside [of her parents’] home by a court
order containing the notice required by s. 48.356 (2) or 938.356 (2) and [Mark]
has failed to visit or communicate with [Laura] for a period of 3 months or
longer.” See WIS. STAT. § 48.415(1)(a)2.

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¶34 Mark argues there are disputed material facts to whether he failed to
communicate with Laura for a period of three months or longer. In support of its
partial summary judgment motion, the Department submitted the affidavit of
Jessica Wager, a social worker from the Department. As relevant to the issue of
Mark’s failure to communicate with Laura, Wager averred to the following.

¶35 Wager had been the ongoing social worker assigned to Laura’s case
since approximately September 2017, and Wager had regular contact with Laura
and her foster parents. Wager’s job also included trying to provide visits between
Laura and her biological parents, and Wager “made repeated attempts at contact
with [Mark] to arrange for visits or otherwise arrange services, often to no avail.”
Mark knew how to reach Wager and the Department for the purpose of contacting
or visiting Laura, but he never did so. From approximately December 19, 2017,
until May 8, 2018, Mark “did not have contact with [Laura] or visit with her.”
Additionally, between November 2017 and July 2019,8 Mark failed to visit or
communicate with Laura, despite:

a. Knowing she was in out-of-home care;

b. Knowing the name and address of the foster parents
providing the out-of-home care;

c. Knowing that she was under the jurisdiction of the Court
and under the supervision of the Department in the CHIPS
case; [and]

d. Knowing how to contact [Wager] and/or the foster
parents by coming to team meetings, coming to the office,
and/or calling on the phone.

8
Wager averred that Mark “finally decided to resume contact” in July 2019, which was
“nearly six (6) months or more after the TPR Petition was filed.”

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¶36 When opposing the motion for partial summary judgment, Mark
made the following averments regarding his communication with Laura. From
November 2017 until July 2019, Mark was “incarcerated at different times for [a]
total of about [one] year.” While he was incarcerated, he “sent two letters to
[Laura].” He sent one letter directly to her, and he sent the other letter to Laura’s
mother to give to Laura. Mark, however, did not know if Laura ever received the
two letters.

¶37 Additionally, Mark, “[w]hile incarcerated and out … frequently
talked on the phone to [Laura’s mother] and she kept [him] informed about
[Laura].” Mark talked with Laura over her mother’s phone “many times during
the November 2017 to July 2019 period” when Laura’s mother was visiting her.
Although Mark tried to reach Laura directly by phone on “several” occasions, he
was unsuccessful in doing so. Finally, from November 2017 through January
2019, “there was no period as long as three months when [Mark] did not have
conversations about [Laura] with her mother, or attempt to reach her by letter or
telephone call.”

¶38 We conclude, first, that the Department made a prima facie showing
that Mark failed to communicate with Laura for a period of three months or longer
and, second, that Mark’s averments regarding his communication with Laura
lacked the specificity necessary to demonstrate that genuine issues of material fact
are in dispute on the abandonment ground. Mark was required to “set forth
specific facts showing that there is a genuine issue for trial.” See WIS. STAT.
§ 802.08(3). He did not do so.

¶39 Mark’s general averment that he talked with Laura over the phone
“many times” between November 2017 and July 2019 (a twenty-one-month

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period) is insufficient to create a material question of fact as to whether there was
no three-month period in which he failed to communicate with Laura. Although
Mark described how he communicated with Laura, no reasonable finder of fact
would return a verdict in his favor based on Mark’s failure to aver more precise
dates of communication and a more precise period of time during which he
communicated with her. See B.P., 386 Wis. 2d 557, ¶34.

¶40 We reject Mark’s argument that our conclusion “is inconsistent with
human behavior and … with the deference that must be afforded the party
opposing summary judgment.” Indeed, our conclusion is supported by the fact
that Mark specifically averred that between November 2017 and January 2019,
“there was no period as long as three months [in which he] did not have
conversations about [Laura] with her mother, or attempt to reach her by letter or
telephone call.” Unlike that averment or, as another example, Wager’s averment
describing a five-month period in which Mark had no communication with Laura,
Mark’s general averment that he communicated with Laura an unknown number
of times, at unknown intervals between communications, using unknown methods
of communication, and during an approximately twenty-six-month time frame
cannot meet the specificity required to defeat summary judgment.

¶41 Mark also argues that genuine issues of material fact exist regarding
his good cause defense to abandonment. WISCONSIN STAT. § 48.415(1)(c)
provides parents an opportunity to show that they had good cause for both failing
to visit and failing to communicate with their child during the three-month period
when they had no contact.

¶42 We disagree with Mark that genuine issues of material fact exist
regarding his good cause defense to abandonment. His affidavit failed to set forth

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specific facts demonstrating why he had good cause for failing to communicate
with Laura. See WIS. STAT. § 802.08(3). No reasonable finder of fact would
conclude Mark had good cause for failing to communicate with Laura based upon
his averments regarding his unspecified periods of incarceration and his access to
a telephone. See B.P., 386 Wis. 2d 557, ¶34. Neither averment meets the
specificity requirement prescribed by § 802.08(3).

¶43 In particular, Mark does not explain how or why his incarceration
“at different times … of about a year” between November 2017 and July 2019,
without more, provided good cause for his failure to communicate with Laura.
Mark’s averments regarding his telephone access are similarly deficient. No
reasonable inference can be drawn in favor of Mark’s good cause defense
regarding his lack of communication because he failed to specify when he did not
have a telephone or did not have “ready access” to one during the same
twenty-six-month period. Consequently, the finder of fact would have to
speculate as to the periods of time when Mark did have access to a phone but did
not communicate with Laura. Further, the finder of fact would have to speculate
to why it was “difficult for [him] to remain in communication with people
involved in this proceeding” without additional, specific facts explaining the
difficulties he encountered and whether those difficulties occurred when he had
access to a phone. We also note that Mark makes no averment about his
communicating with Wager, including his inability to do so.

¶44 For the foregoing reasons, we conclude Mark has not demonstrated
that disputed issues of material fact exist as to his good cause defense for failing to
communicate with Laura. We therefore affirm the circuit court’s grant of partial
summary judgment against Mark, as well as its subsequent order terminating his
parental rights to Laura.

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By the Court.—Order affirmed.

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

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