Racine County HSD v. W.L.J.

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.
October 14, 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 Nos. 2020AP197 Cir. Ct. Nos. 2018TP33
2018TP34
2020AP198

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2020AP197

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

RACINE COUNTY HUMAN SERVICES DEPARTMENT,

PETITIONER-RESPONDENT,

V.

W.L.J.,

RESPONDENT-APPELLANT.

NO. 2020AP198

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

RACINE COUNTY HUMAN SERVICES DEPARTMENT,
Nos. 2020AP197
2020AP198

PETITIONER-RESPONDENT,

V.

W.L.J.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Reversed and cause remanded with directions.

¶1 REILLY, P.J.1 In these consolidated termination of parental rights
(TPR) cases, W.L.J. (the father) appeals from the circuit court’s orders
involuntarily terminating his parental rights to S.T.J. and W.L.J., Jr. (the children).
The circuit court granted partial summary judgment at the grounds phase,
declaring the father unfit on the ground of abandonment, pursuant to WIS. STAT.
§ 48.415(1)(a). As there are genuine issues of material fact concerning whether
the father had “good cause” for his failure to visit or communicate with the
children, we reverse and remand for a fact-finding hearing.

Facts

¶2 The children were first found to be children in need of protection or
services (CHIPS) in July 2015 and placed outside the parents’ home. The Racine
County Human Services Department (the Department) filed a petition to terminate

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-
18). All references to the Wisconsin Statutes are to the 2017-18 version.

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the father’s parental rights to the children on September 10, 2018. The petition
alleged three grounds for termination: (1) failure to assume parental
responsibility, pursuant to WIS. STAT. § 48.415(6); (2) continuing CHIPS,
pursuant to § 48.415(2); and (3) abandonment, pursuant to § 45.415(1)(a)2.
Shortly thereafter, the Department filed a motion for summary judgment solely on
the issue of abandonment, alleging that the father had “no contact with his children
since February 21, 2018, a period in excess of 9 months” 2 and that “[t]here is no
known good cause reason for [the father’s] failure to visit or communicate with his
children.” In response, the father argued that his “incarceration and barriers to
communication” provided good cause for his failure to contact his children.

¶3 The circuit court, despite the guardian ad litem opining that the
question was whether the father “had the ability to contact these children,” and
arguing that that question could not be answered “without some form of fact
finding hearing,” concluded that the Department established grounds for
abandonment pursuant to WIS. STAT. § 48.415(1)(a)2. and that the father failed to
raise a genuine issue of material fact sufficient to preclude summary judgment.
The court found the father unfit at the grounds phase. Following a dispositional

2
The circuit court signed an injunction prohibiting contact between the father and the
children on August 22, 2018, which was modified to allow written letters on January 7, 2019.
Pursuant to WIS. STAT. § 48.415(1)(b), the three-month time period under § 48.415(1)(a)2. “shall
not include any periods during which the parent has been prohibited by judicial order from
visiting or communicating with the child.” The time period alleged for abandonment is between
February 21, 2018, and August 22, 2018.

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hearing, the circuit court terminated the father’s rights to the children.3 The father
appeals.4

TPR Procedure

¶4 Under Wisconsin law, TPR proceedings involve a two-part statutory
procedure: the “grounds” phase and the “dispositional” phase. Steven V. v. Kelley
H., 2004 WI 47, ¶¶24, 26, 271 Wis. 2d 1, 678 N.W.2d 856. “In the first, or
‘grounds’ phase of the proceeding, the petitioner must prove by clear and
convincing evidence that one or more of the statutorily enumerated grounds for
termination of parental rights exist.” Id., ¶24; see also WIS. STAT. § 48.31(1). If
the court or a jury finds one of the twelve grounds under WIS. STAT. § 48.415, “the
court shall find the parent unfit.” Steven V., 271 Wis. 2d 1, ¶25 (quoting WIS.
STAT. § 48.424(4)). In the second, dispositional phase, the court must determine
what is in the “best interest of the child,” considering, at a minimum, the “best
interest” factors enumerated in WIS. STAT. § 48.426(3). Steven V., 271 Wis. 2d 1,
¶27.

3
The children’s mother was also subject to a TPR petition, which was granted by default
when she failed to respond to the Department’s motion for summary judgment. The mother is not
a party to this appeal.
4
The father filed his notice of appeal on January 9, 2020. On February 18, 2020, we
ordered these cases consolidated for purposes of briefing and disposition and remanded these
matters, pursuant to the father’s motion, to the circuit court for proceedings on a post-termination
motion, which included a claim of ineffective assistance of counsel. The father filed his post-
termination motion on March 3, 2020. Due to delays caused by the COVID-19 pandemic, the
circuit court held a post-termination evidentiary hearing on July 1, 2020, ultimately denying the
father’s motion.

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Abandonment

¶5 This appeal involves only the grounds phase, specifically the
statutory ground for abandonment pursuant to WIS. STAT. § 48.415(1)(a)2.
Section 48.415(1)(a)2. provides that abandonment may be established where a
“child has been placed, or continued in placement, outside the parent’s home by a
court order” and “the parent has failed to visit or communicate with the child for a
period of 3 months or longer.” In this case, the father does not challenge the
finding that he had not visited or communicated with his children in over three
months. At issue before this court is whether there is a genuine issue of material
fact regarding whether the father satisfied § 48.415(1)(c), which provides that
“[a]bandonment is not established … if the parent proves” “[t]hat the parent had
good cause for having failed to visit with the child throughout the time period” and
“[t]hat the parent had good cause for having failed to communicate with the child
throughout the time period.” If the parent shows good cause for having failed to
communicate with the child, he or she must prove that one of the following
occurred:

a. The parent communicated about the child with the
person or persons who had physical custody of the child
during the time period specified … or … with the agency
responsible for the care of the child during the time period
specified in par. (a) 2.

b. The parent had good cause for having failed to
communicate about the child with the person or persons
who had physical custody of the child or the agency
responsible for the care of the child throughout the time
period specified ….

Sec. 48.415(1)(c)3.

¶6 The statute does not define “good cause.” In evaluating the claim of
good cause, the finder of fact may consider (1) “whether [the child’s] age or

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condition would have made any communication meaningless”; (2) “whether [the
parent] had a reasonable opportunity to visit or communicate with [the child] or
communicate with [the person] who had physical custody of [the child] [or the
agency responsible for the care of the child during the time period]”; (3) “attempts
to contact [the child]”; (4) “whether person(s) with physical custody of [the child]
prevented or interfered with efforts by [the parent] to visit or communicate with
[the child]”; (5) “any other factors beyond [the parent’s] control which prevented
or interfered with visitation or communication”; and (6) “all other evidence
presented at this trial on this issue.” WIS JI—CHILDREN 313.

Standard of Review

¶7 This case comes before the court on summary judgment, and the
methodology is well known. We review a grant of summary judgment de novo,
benefiting from the circuit court’s analysis. State v. Bobby G., 2007 WI 77, ¶36,
301 Wis. 2d 531, 734 N.W.2d 81. Summary judgment is appropriate where “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); Steven V., 271 Wis. 2d 1, ¶6. Importantly, on summary
judgment review, “the nonmoving party is entitled to the benefit of all favorable
facts and reasonable inferences drawn in his or her favor.” Oddsen v. Henry,
2016 WI App 30, ¶26, 368 Wis. 2d 318, 878 N.W.2d 720. Here, the burden rests
with the Department to show that it is entitled to judgment as a matter of law,
“taking into consideration the heightened burden of proof specified in WIS. STAT.
§ 48.31(1) and required by due process.” See Steven V., 271 Wis. 2d 1, ¶6.

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¶8 Our supreme court has determined that a grant of partial summary
judgment at the grounds phase of a TPR proceeding is permitted, but has
acknowledged that “[i]n many TPR cases, the determination of parental unfitness
will require the resolution of factual disputes by a court or jury at the fact-finding
hearing, because the alleged grounds for unfitness involve the adjudication of
parental conduct vis-a-vis the child.” Id., ¶¶5, 34-36. As relevant to this case,
abandonment was identified as “one of the fact-intensive grounds for parental
unfitness” for which “[s]ummary judgment will ordinarily be inappropriate in TPR
cases.” Id., ¶36; see also Bobby G., 301 Wis. 2d 531, ¶40. While “the court has
not held that this ground could never form the basis for partial summary
judgment,” the court has “stressed that ‘[t]he propriety of summary judgment is
determined case-by-case.’” Bobby G., 301 Wis. 2d 531, ¶40 (citation omitted).

Discussion

¶9 We conclude that the question of whether the father has
demonstrated good cause for his failure to communicate with his children, the
Department, or the individual that had custody of the children cannot be decided
on summary judgment under the circumstances in this case. As our supreme court
explained, “If the applicable statutory basis for unfitness indeed provides for a
‘defense’ or ‘explanation’ that would preclude a finding of unfitness, and there are
material facts in dispute regarding a parent’s asserted ‘defense’ in this regard, then
summary judgment will not be appropriate.” Steven V., 271 Wis. 2d 1, ¶48 n.8;
see also Racine Cnty. Human Servs. Dep’t v. S.J.A., Nos. 2019AP2160 and
2019AP2161, unpublished slip op. ¶17 (WI App Feb. 5, 2020); J.M.W. v. J.R.P.,
No. 2017AP1390, unpublished slip op. ¶18 (WI App Sept. 20, 2017) (“[W]e

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strongly caution against the use of summary judgment at a TPR proceeding where
the parent is present and objecting.”).

¶10 It is clear from the record that there are material facts in dispute.
While the father did not contest that the Department had met the statutory
requirements under WIS. STAT. § 48.415(1)(a)2., he did object based on the
purported good cause for his failure to visit or communicate with his children.
Namely, his incarceration, his indigency, and the failure of the Department to
facilitate communication. In his affidavit, the father averred that he had been in
custody since February 20, 2018, and that he is “currently indigent and the
institutions where I have been limit my privileges.” According to the father, he
was “only able to send letters or make phone calls if family or friends put money
into [his] inmate account” and his “financial resources have been extremely
limited since [his] incarceration.” The father also stated in his affidavit that during
his incarceration he wrote to the children’s mother to “inquire[] about the well-
being of my children and often asking about their whereabouts.” He claimed that
he was not provided postage or envelopes from the Department to facilitate
communication with his children, nor was he provided the telephone number or
address of his children’s placement.

¶11 The Department provided no evidence to resolve the father’s claims
on these issues. Instead, the Department argues that the father sent letters to the
children’s mother, when he “claims that he did not have enough money to

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correspond with the Department regarding his children.”5 The Department also
alleges that the children were placed with the same person “they were placed
[with] before being reunified with [the mother] in November 2017,” but there is no
assertion that contact information for this person was provided to the father.6 The
rest of the Department’s reply attempts to recount the details of the father’s recent
criminal history, which the father does not appear to contest and has very little
bearing, if any, on the abandonment factors. The Department’s arguments do not
resolve any factual disputes and, at best, merely suggest that material facts as to
the father’s defense were not fully developed. We must give the benefit of all
favorable facts and reasonable inferences to the father, leading to the conclusion
that material facts as to good cause are in dispute and summary judgment is
inappropriate.

5
At the post-termination hearing, the father expanded upon this information, testifying
that “[n]ot all” the letters he sent to the children’s mother were “sent by postage.” Instead, he
claimed that he sent the letters to her while they both were in the Racine County Jail and he
would “just fold [the letters] up and write the person[’s] name on it and if we know the door
number, and then we slide it under the door.”
6
At the post-termination hearing, the father explained that the children were placed at
the time with their mother’s family member, and the children’s mother was “talking to her
family” and she was “able to give [the father] updates on the kids.” He explained that while he
did know who the children were with, he “didn’t know exactly where [the mother’s family
member] lived,” and when he asked the mother for the phone number to speak with the children
he was “denied” the information and told “they won’t give out their number or something.” The
father also testified that while he was in custody, he asked the mother’s family member to have
contact with the children: “Every court date when I walked past her. When I was incarcerated
they’ll take me past her, she’ll be sitting [in the gallery of the courtroom] and I ask her can she
bring the kids to see me or either send some pictures or something.” He explained that the family
member said “‘Yes, I’ll do it,’ but it never get done.” While we do not rely on the father’s
testimony at the post-termination hearing on summary judgment, this testimony supports our
position that there were material facts in dispute concerning the father’s good cause for not
communicating with the children. See Racine Cnty. Human Servs. Dep’t v. S.J.A.,
Nos. 2019AP2160 and 2019AP2161, unpublished slip op. ¶18 n.10 (WI App Feb. 5, 2020).

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¶12 “Terminations of parental rights affect some of the parents’ most
fundamental human rights.” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246
Wis. 2d 1, 629 N.W.2d 768. At the grounds phase, “the parent’s rights are
paramount” and, therefore, “require heightened legal safeguards to prevent
erroneous decisions.” Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶60, 346
Wis. 2d 396, 828 N.W.2d 198 (citation omitted). “One of the purposes of Chapter
48, the Children’s Code, is to provide for procedures through which all interested
parties are assured fair hearings that enforce their legal rights.” Id., ¶61. The
father was denied his right to a fact-finding hearing.

¶13 To be clear, we do not take a position on whether the father will
prevail upon a proper fact-finding hearing at the grounds phase. Our conclusion in
this case has no bearing on the strength of the father’s case or whether the
Department could succeed on the other grounds for unfitness asserted in the TPR
petition. Our decision rests entirely upon an analysis of the circumstances in this
particular case and whether the father’s affidavit demonstrated that disputed issues
of material fact exist as to whether he had good cause for failing to visit and
communicate with his children.7

7
The father also presents an ineffective assistance of counsel claim, arguing that trial
counsel performed deficiently by presenting “a confusing and imprecise defense to the” motion
for summary judgment. As we decide this case on different grounds, we need not reach the
father’s ineffective assistance claim. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005
WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (we decide cases on the narrowest
possible grounds).

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Conclusion

¶14 For the foregoing reasons, as the Department did not establish
grounds for termination, we reverse the orders involuntarily terminating the
father’s parental rights to the children. We direct the court on remand to hold a
fact-finding hearing pursuant to WIS. STAT. § 48.424, and, if necessary, a new
dispositional hearing in accordance with WIS. STAT. § 48.427 on whether the
father’s parental rights should be terminated. See Bobby G., 301 Wis. 2d 531, ¶6.

By the Court.—Orders reversed and cause remanded with directions.

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

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