The circuit court granted the Department’s motion for summary judgment and terminated M.J.A.’s parental rights on continuing CHIPS grounds. The court should not have done that, because the parties’ summary judgment submissions show there is a genuine issue of material fact for trial.
The dispute centered on the requirement that the Department prove there is a substantial likelihood that M.J.A. will not meet the conditions for the safe return of the child within the nine-month period after the fact-finding hearing, § 48.415(2)(a)3. (2015-16). To grant summary judgment at the grounds phase of a TPR case, the moving party must establish that “there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, … taking into consideration the heightened burden of proof specified in Wis. Stat. § 48.31(1) and required by due process….” Steven V. v. Kelley H., 2004 WI 47, ¶6, 271 Wis. 2d 1, 678 N.W.2d 856. Steven V. cautioned that summary judgment will “ordinarily be inappropriate” when it comes to grounds such as the continuing CHIPS ground that “involve the adjudication of parental conduct vis-à-vis the child.” Id., ¶36.
That caution proves especially appropriate here:
¶17 Drawing all reasonable inferences in favor of M.J.A., and taking into account the Department’s heightened burden of proof, see Steven V., 271 Wis. 2d 1, ¶6, I conclude that M.J.A.’s affidavit raises a genuine issue of material fact as to whether there was a substantial likelihood that M.J.A. would not meet the return conditions in the pertinent nine-month period. As noted, M.J.A.’s affidavit provided evidence that M.J.A. had met, or had made progress in meeting, several conditions. This included the condition requiring M.J.A. to have a safe, suitable, and stable home; the condition requiring M.J.A. to have visits with J.S.; the condition that M.J.A. resolve any criminal charges; and the condition relating to employment. Notably, M.J.A.’s affidavit also provided support for the view that M.J.A. met or made progress in meeting several return conditions that could put M.J.A. in a better position to meet other conditions going forward.
¶18 The Department argues that M.J.A. is wrong when she asserts that there are several underlying factual disputes as to M.J.A.’s past performance on particular conditions. I agree that M.J.A. does not dispute several specific factual allegations in the social worker’s affidavit. But that argument loses sight of M.J.A.’s broader overarching issue: M.J.A.’s affidavit creates a factual dispute regarding the extent of her past failings and efforts. This means there are competing views of some aspects of the past behavior and efforts and, thus, competing reasonable inferences remain as to the ultimate fact of whether there is a substantial likelihood that M.J.A. would not meet the return conditions going forward.