It would be interesting to see the briefs in this case, but of course they’re confidential, so we cannot. What we can see is the opinion, which shows commendable (and unfortunately uncommon) attention to detail. It’s easy to imagine a glib, slapdash affirmance of this summary judgment against the parent in a TPR; we don’t get one though. Instead we see a searching review of what was proved and what was not, and a (really all too uncommon) reversal.
S.J.A.’s children were in foster care, placed with her aunt. The petitioner (actually the state, not the county as the caption suggests, ¶7 n.4) alleged that she’d failed to communicate with them for at least three months without “good cause”. Wis. Stat. § 48.415(1)(a)2. & (c)1. Though the alleged period covers more than two years, all parties and the court view the operative time as after the Department first established conditions conditions for S.J.A. to reestablish contact; before this she was expressly prohibited from doing so, which all apparently agree was good cause. (¶16). As the court puts it:
That this was the focus of inquiry by the circuit court seems appropriate given that (1) beginning in May 2017, the Department expressly told S.J.A. that contact with the children would not be permitted; (2) there is virtually nothing in this record to indicate what she needed to do to change that directive; and (3) her affidavit and documents in the Department’s file suggest that she was continuously making efforts at communication.
(¶16). What’s at issue is whether S.J.A. had good cause for failing to meet those conditions (which resulted in her continuing non-contact) after they were established. We can’t improve on the court’s explanation of why the summary-judgment case for this period wasn’t there:
We conclude that this is not a question that can be decided on summary judgment. Put another way, there are facts and inferences that can be genuinely disputed as to whether S.J.A. was attempting to reestablish contact with her children. Pursuant to WIS. STAT. § 48.415(1)(c), S.J.A. had the burden of proof (by a preponderance of the evidence) as to good cause for abandonment, meaning she needed to present evidence that at least raised an issue of fact to support this defense. See Odd S.-G. v. Carolyn S.-G., 194 Wis. 2d 365, 372, 533 N.W.2d 794 (1995). In that regard, S.J.A. showed that she fulfilled at least one of the Department’s requirements (and arguably the only requirement that was set forth with specificity): she underwent a psychological evaluation. Although S.J.A. did not reference any other steps she took, the Department’s requirements are decidedly vague; as defense counsel put it, “[i]t is very ambiguous to say [S.J.A.] did not comply with services.” We find noteworthy the unrefuted fact that there is no record of the Department’s informing S.J.A. of any specific services she needed to obtain following her psychological evaluation. In addition, it was only (for the first time) in its reply brief to the circuit court that the Department raised the primary argument it presented at the summary judgment hearing and which formed the basis for the circuit court’s decision: that the Department’s decision to prohibit communication did not constitute per se “good cause” for not communicating with her children and that S.J.A.’s case for “good cause” required her to meet a “condition precedent” to reestablishing communication. Therefore, S.J.A. may not have had a fair opportunity to offer evidence as to her knowledge of and compliance with the “conditions” that ultimately led to the circuit court’s decision. See Leske v. Leske, 197 Wis. 2d 92, 97-98, 539 N.W.2d 719 (Ct. App. 1995) (noting that “[t]he burden is on the moving party to demonstrate a basis in the record” showing that nonmoving party lacks evidence on point on which nonmoving party bears burden of proof); Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 292, 507 N.W.2d 136 (Ct. App. 1993) (party moving for summary judgment must “explain the basis for its motion”).
(¶17). The court goes on to explain that there are several factual disputes that need resolution and observes that “the inherently fact-based nature” of the issue, along with “the fundamental rights at stake” “have led our supreme court and this court to generally discourage the use of summary judgment in TPR cases, and on this issue specifically.” (¶18).