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Defense win! Court of appeals reverses summary judgment TPR due to fact issues on abandonment

Racine County DHS v. W.L.J., 2020AP197-198, October 14, 2020, District 2 (1-judge opinion, ineligible for publication); case activity

Good news for defense lawyers in TPR cases. The court of appeals means business. This is the third time in less than a year that it has reversed a termination of parental rights order due to a circuit court error on the question of whether a parent “abandoned” his or her child.

One ground for terminating a person’s parental rights is that he abandoned his child. However, the law allows the parent to defend himself by proving that he had “good cause” for the abandonment.  See Wis. Stat. §48.415(1)(c).

Three weeks ago, the court of appeals ordered a new TPR trial because the circuit court erroneously excluded evidence that would have bolstered a mother’s “good cause” defense on the issue of abandonment. Click here to see Brown County Human Services v. T.F.

Last February, the court of appeals carefully scrutinized summary judgment pleadings on whether a mother had “good cause” for failing to establish contact with her child, found issues of of material fact, and reversed the judgment.  Click here to see Racine County DHS v. S.J.A.

And now the court of appeals reverses again. In this case, the Department moved for summary judgment solely on the issue of whether a father abandoned his children by failing to visit or communicate with them for 9 months.

The father argued that he had “good cause” for the lack of contract. He submitted an affidavit averring that he was incarcerated, had limited privileges, and was indigent. He could send letters or make calls only if his family could put money into his inmate account. He did write to the children’s mother to inquire about their welfare. He also averred that the Department did not facilitate communication between him and his children. It did not provide him with postage, envelopes, or an address or a telephone number for his children.

The Department’s reply did not resolve these allegations. Rather, it focused on the father’s criminal history, which the court of appeals noted has little if any bearing on abandonment. A court must give the benefit of favorable facts and reasonable inferences to the party opposing summary judgment. Here, that led the court of appeals to conclude that material issues of fact as to “good cause” were in dispute, so summary judgment was inappropriate. Opinion, ¶11. It reversed and remanded the case for a fact-finding hearing. Opinion, ¶13.

The court of appeals noted that it in some cases it may be possible to determine parental unfitness at the summary judgment stage.  However, “abandonment” is a fact-intensive issue which usually cannot be resolved on summary judgment. Opinion, ¶8 (citing State v. Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81).

These 3 defense wins have an interesting point in common. In each case, one issue was whether the Department did something or failed to do something that interfered with the parent’s ability to have contact with his or her children.

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