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Summary judgment in TPR case upheld

Adams County DHS v. S.D., 2018AP466, District 4, 11/8/18 (one-judge decision; ineligible for publication); case activity

Rejecting S.D.’s claims that she had raised genuine issues of material fact supporting a defense, the court of appeals affirms the summary judgment against S.D. on the grounds of the three-month abandonment provision in § 48.415(1)(a)2.

S.D. claims there were genuine issues of fact raised by her claims she had regularly communicated with her sister L.H., who had custody of her child, R.S.; that she left messages for the child’s case worker; and  that she could not visit the child during the period because she feared being taken into custody on a “bogus” probation hold. (¶8). But to defend against the three-month abandonment ground, § 48.415(1)(c)1. and 2. require S.D. to establish good cause for not visiting the child and good cause for not communicating with the child. Her allegations aren’t enough to do that:

¶9     S.D.’s focus on communication with L.H. and the case worker is misplaced, as she fails to assert two required elements—good cause for failing to visit with the child and good cause for failing to communicate with the child throughout the relevant time period. See Wis. Stat. § 48.415(1)(c)1.-2. First, S.D. seems to assume that the “bogus probation hold” assertion in her affidavit constitutes good cause for failing to visit with R.S. She provides no analysis or citation to support her position that avoiding the risk of arrest, wrongful or not, constitutes good cause in a termination of parental rights proceeding for failing to visit with one’s child. In short, S.D.’s argument is undeveloped.

¶10     In addition, S.D. does not argue that she had good cause for failing to communicate with R.S. And although the record reflects that R.S. was under eighteen months old at the time of the alleged period of abandonment, S.D. does not contend that R.S.’s age or condition would have rendered any communication with R.S. meaningless. Nor does she allege that she failed to communicate with R.S. because she believed R.S.’s age would render the communication meaningless. Without proving she had good cause for her failure to visit and communicate with R.S., or at least alleging as much, S.D.’s allegations regarding her attempts to communicate with L.H. and with the case worker are irrelevant.

In addition, the court rejects S.D.’s argument that summary judgment is inappropriate in abandonment cases because they are so fact intensive, citing Steven V. v. Kelley H., 2004 WI 47, ¶36, 271 Wis. 2d 1, 678 N.W.2d 856. But Steven V. also “made clear that, regardless of the ground, courts must decide whether summary judgment is proper on a case-by-case basis”; and based on the facts of this case, summary judgment was appropriate. (¶12).

S.D. also alleges her lawyer was ineffective for failing to use facts from discovery documents to: narrow the alleged period of abandonment; show S.D. had good cause for not visiting R.S. on two specific dates; and to show S.D. met with the case worker and left voice mails on specific dates. She also asserts her lawyer prejudged S.D.’s credibility. In a fact-intensive discussion, the court of appeals finds that, assuming trial counsel was deficient, the deficient conduct was not prejudicial. (¶¶13-28).

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