Green Cnty. Dep't of Human Servs. v. BARRET W. S. (In re Termination Parental Rights to Ella M. S.), 2014AP1155.
| Decision Date | 14 August 2014 |
| Docket Number | No. 2014AP1155.,2014AP1155. |
| Citation | 855 N.W.2d 721 (Table),356 Wis.2d 831 |
| Parties | In re the termination of parental rights to Ella M. S., a person under the age of 18: GREEN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. BARRET W. S., Respondent–Appellant, Steven D. and Deborah D., Interested Parties–Respondents. |
| Court | Wisconsin Court of Appeals |
Barret W.S. appeals the circuit court's order terminating his parental rights to Ella M.S. He argues that the circuit court erred by granting summary judgment against him on the “fact-intensive” grounds for termination in this case, allowing Ella's guardians to participate as a party, and selectively applying the rules of evidence during the dispositional phase. I reject Barret's arguments, and affirm.
¶ 2 On November 16, 2012, the Green County Department of Human Services petitioned to terminate Barret's parental rights to Ella.2 According to the petition allegations, Ella was six years old at the time and was living with her guardians, Steven and Deborah D. The circuit court granted a request by the guardians to participate as a party during both the grounds and dispositional phases of the proceedings.
¶ 3 In an amended petition, the County alleged three grounds for termination: three-month abandonment under Wis. Stat. § 48.415(1)(a)2. ; six-month abandonment under § 48.412(1)(a)3.; and failure to assume parental responsibility under § 48.415(6). As set forth in the statutes, these three grounds require the County to show, respectively:
Wis. Stat. § 48.415(1)(a)2. and 3. and (6). For the abandonment grounds, the County alleged multiple periods of abandonment.
¶ 4 The County filed a motion for summary judgment accompanied by evidentiary submissions, and asserted that there was no genuine issue of material fact as to any of the grounds. The circuit court agreed with the County, and granted the motion. After a dispositional hearing, the circuit court terminated Barret's parental rights to Ella.
¶ 5 I reference additional facts as needed below.
¶ 6 Barret argues that the circuit court erred by granting summary judgment on “fact-intensive” grounds for termination, by allowing Ella's guardians to participate as a party, and by selectively applying the rules of evidence against him during the dispositional phase. I explain below my reasons for rejecting each of Barret's three arguments.
¶ 7 Barret asserts that, in Steven V. v. Kelley H., 2004 WI 47, 271 Wis.2d 1, 678 N.W.2d 856, the “supreme court ... found that some grounds are amenable to resolution by summary judgment while others are not.” Barret contends that grounds such as abandonment and failure to assume parental responsibility are not amenable to summary judgment, whereas so-called “paper grounds” that may be proven by documentary evidence, such as the ground of continuing court-ordered periods of physical placement, are generally appropriate for summary judgment. Barrett misreads Steven V.
¶ 8 I begin by observing that I need not discuss both abandonment and failure to assume parental responsibility because either alone is a sufficient ground to support termination of Barret's parental rights. See Wis. Stat. § 48.415 ( “ . I focus on abandonment because, as we shall see, this ground is dispositive.
¶ 9 I return to Barret's argument that Steven V. creates a special rule for termination of parental rights cases by providing that some grounds are not amenable to resolution by summary judgment. In Steven V., the ground for termination was continuing court-ordered denial of periods of physical placement, which the court said could be proven by documentary evidence of a court order. Steven V., 271 Wis.2d 1, ¶¶ 2, 37, 678 N.W.2d 856. In contrast to grounds proven by documentary evidence, the court stated that summary judgment “will ordinarily be inappropriate in TPR cases premised on ... fact-intensive grounds for parental unfitness,” including abandonment, because in such cases “the determination of parental unfitness will require the resolution of factual disputes by a court or jury at the fact-finding hearing.” Id., ¶ 36, 678 N.W.2d 856. The court also said, however, that the court did not Id., ¶ 37 n. 4, 678 N.W.2d 856. “If a motion for summary judgment is made and supported as prescribed by Wis. Stat. § 802.08, the circuit court may properly conclude at the fact-finding hearing that there is no genuine issue of material fact in dispute and the moving party is entitled to partial summary judgment on parental unfitness as a matter of law.” Id., ¶ 34, 678 N.W.2d 856.
¶ 10 Thus, Steven V. does not prescribe a different summary judgment rule for certain types of termination of parental rights cases. Rather, the Steven V. court simply makes the observation that, when applying normal summary judgment principles, it will often be true that a material factual dispute will prevent summary judgment in certain types of termination of parental rights cases. The summary judgment methodology used does not change and, therefore, I reject Barret's argument that reversal is required under Steven V. because of the type of grounds alleged in this case.
¶ 11 What remains of Barret's argument is his assertion that there is a material factual dispute as to whether Barret communicated with Ella through third parties during three of four alleged abandonment periods. He asserts that “[t]hird party contacts, if successfully delivered, allow a fact-finder to determine that a parent did not abandon his child.” Barret does not argue that there is any other factual dispute as to the abandonment grounds.
¶ 12 Barret's factual dispute argument fails. As the County and guardians point out in their responsive briefs, the parties also litigated and the circuit court also ruled on the fourth abandonment period, during which Ella was placed with the guardians, May 27, 2011, to January 29, 2012, and Barret does not address this period of time in his brief-in-chief. I agree. As far as I can tell, Barret also fails to point to any evidence supporting an inference that, during that time period, he either visited with Ella or communicated with her, directly or through third parties, or that he attempted to do so.
¶ 13 I take Barret's failure to address the fourth period in his brief-in-chief as a concession that there is no material dispute of fact as to that period. I affirm the circuit court's grant of summary judgment on this basis. See Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d 99 (Ct.App.1994) ().
¶ 14 In his appellate reply brief, Barret belatedly asserts that he does not concede that he abandoned Ella during the fourth period. This argument is too late and too little. I reject it because Barret raises the argument for the first time in his reply brief, which is too late. However, even if I ignored the concession implicit in his brief-in-chief with respect to the fourth time period, I would still reject his argument because it is too little.
¶ 15 Barret's argument as to abandonment and the fourth time period is based on the proposition that abandonment is not proven if the fact finder believes the parent communicated with a child through a third party. Barret contends that State v. Lamont D., 2005 WI App 264, 288 Wis.2d 485, 709 N.W.2d 879, stands for the proposition that third-party contacts, if successfully delivered, allow a fact finder to determine that a parent did not abandon his or her child. Assuming for purposes of this decision that Barret accurately summarizes the holding in Lamont D., Barret's argument still falls short because he does not point to evidence showing that he attempted to communicate with Ella through a third party, much less that he successfully did so, during the fourth time period.
¶ 16 Barret first points to a particular section in his deposition testimony which he asserts shows that he testified about “ongoing attempts to contact Steven and Deborah [Ella's guardians] following his release from prison in March of 2011.” However, when I look to that section, Barret did not testify about ongoing attempts to contact Ella's guardians. More to the point, Barret did not testify about an attempt to communicate with Ella through the guardians. Rather, in this section of his deposition testimony, Barret describes a single conversation in which he communicated to the guardians his intent to be a part of Ella's life and to get his life in order.
¶ 17 Barret points to what he characterizes as confusing testimony about whether he telephoned the guardians on Father's Day 2011, or five months after his release from prison. According to Barret, regardless whether he spoke to the guardians on Father's Day 2011, or five months after his release from prison, either date falls within the fourth time period. I agree that it is reasonable to infer that this part of Barret's deposition testimony contains an assertion that he...
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