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COA clarifies summary judgment procedure and the “continuing denial of visitation” grounds for TPR

Juneau County D.H.S. v. S.G.M., 2019AP553-556, 6/6/19, District 4 (1-judge opinion; ineligible for publication); case activity

This appeal presents two issues of TPR law: (1) Whether a county must file an affidavit in support of its summary judgment motion; and (2) Whether Juneau County satisfied the requirement of §48.415(4)(a), which governs the “continuing denial of visitation.”

The answer to the first issue seems simple enough. No, the party moving for summary judgment need not file a supporting affidavit.

¶19 There is no requirement that a motion for summary judgment be supported by affidavits. Tews v. NHI, LLC, 2010 WI 137, ¶46, 330 Wis. 2d 389, 793 N.W.2d 860 (“The express language of the summary judgment statute does not always require a party moving for or opposing summary judgment to file an affidavit with the court.”); see also WIS. STAT. § 802.08(2) (“The judgment sought shall be rendered 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.”) (emphasis added). Accordingly, S.G.M.’s argument that affidavits are always required to admit the revision orders into evidence falls flat.

The answer to the second issue is more complicated.  To establish grounds for terminating parental rights based on a continuing denial of visitation, the County had to prove: (1) a revised CHIPS order denied S.G.M. visitation with each separate child under §48.363; (2) each revised order contained the requisite notice concerning termination of TPR rights; and (3) one year elapsed between the issuance of each order and the County’s filing of the TPR petition, and the court did not modify the order to permit periods of visitation. Opinion, ¶23. In this case, only the first requirement is in dispute.

Section 48.415(4)(a) specifies that grounds for terminating parental rights based on a revised CHIPS order must be entered pursuant to certain enumerated statutes. The revised CHIPS orders in this case refer to §48.355(3), which is not one of those enumerated statutes.  Despite the plain language of the statute, the court of appeals rules against S.G.M..The reasoning is, frankly, hard to summarize for folks who don’t know their way around Chapter 48, which is probably most of us. So here is the meat of the court’s decision:

¶24 A disposition in a CHIPS case is governed by WIS. STAT. § 48.345. In a CHIPS dispositional order under § 48.345, the judge “shall decide on a placement” for the child and may place the child outside of the home. WIS. STAT. §§ 48.355(1) and 48.345. If a child is placed outside of the home under the CHIPS dispositional order pursuant to § 48.345, the issue of parental visitation arises. See Diana P. v. P.P., 2005 WI 32, ¶31, 279 Wis. 2d 169, 694 N.W.2d 344. Notably, § 48.345 does not refer to parental visitation. Rather, it is § 48.355(3) that authorizes a circuit court to set reasonable rules for parental visitation as part of the CHIPS dispositional order. See id. (“The court has the discretion, based on the best interests of the child, to set reasonable rules regarding parental visitation within the dispositional order.”) (emphasis added) (citing § 48.355(3)(a)).

¶25 WISCONSIN STAT. 48.363 provides for the revision of CHIPS dispositional orders. Sec. 48.363. Similar to WIS. STAT. § 48.345, § 48.363 does not refer to parental visitation. Nevertheless, under § 48.363, a party bound by the dispositional order, such as S.G.M. or the County, may request a revision of the CHIPS dispositional order, “which would include a revision of the court-imposed rules regarding visitation.” Diana P., 279 Wis. 2d 169, ¶31 (emphasis added).

¶26 Based on the language used in these closely related statutes and the holding of the Wisconsin Supreme Court in Diana P., I conclude that WIS. STAT. § 48.355(3) grants the circuit court authority to set reasonable rules of visitation within a dispositional order. . . . That is, § 48.355(3) allows the circuit court to deny visitation under a dispositional order, such as a revision order under WIS. STAT. § 48.363. Therefore, such an order satisfies the requirements of WIS. STAT. § 48.415(4)(a). This conclusion is bolstered by the fact that, while neither WIS. STAT. § 48.345 nor § 48.363 explicitly refers to visitation, § 48.415(4)(a) specifies that the petitioner must prove that “the parent … has been denied visitation under an order under [§§] 48.345 [or] 48.363….” Sec. 48.415(4)(a).

 

 

 

 

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