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An interesting opinion affirming summary judgment on grounds for a TPR

Manitowoc County Human Serv. Dep’t v. J.K., 2017AP2371, 2/21/18 (1-judge opinion, ineligible for publication); case activity

If you handle TPR cases, this opinion is worth reading because the appellant raised creative arguments regarding, for example, the proper legal standard for summary judgment and a court’s ability to take judicial notice  of its own records. She also lodged an “as applied” constitutional challenge to §48.415(6) regarding failure to assume parental responsibility. This decision has SCOW potential.

Summary judgment standard for TPRs.

J.K. argued that the circuit court erroneously granted summary judgment for the county on the grounds of continuing need of protection or services and failure to assume parental responsibility.  Because TPRs are confidential, we do not have access to the briefs. However, the court of appeals acknowledges J.K.’s point that in a TPR proceeding the county must prove its case by “clear and convincing” evidence.  In regular civil cases (i.e. no constitutional right at stake) the party seeking summary judgment must prove its entitlement to relief “beyond a reasonable doubt.” J.K. says the “beyond a reasonable doubt” standard to apply in TPR proceedings. When you think about, that only seems fair.  However the court of appeals rejects the argument for several reasons:

¶5 n.3  We recognize J.K.’s argument that the department’s burden is higher than “clear and convincing” based on our supreme court’s discussion in Grams v. Boss, 97 Wis. 2d 332, 294 N.W.2d 473 (1980). There, the court stated: “A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy; some courts have said that summary judgment must be denied unless the moving party demonstrates his entitlement to it beyond a reasonable doubt.” Id. at 338. We distinguish the court’s discussion as Grams was not a TPR case. Further, since Grams was decided, this court has decided Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856. In Steven V., this court clearly pronounced that “[b]y statute and as a matter of procedural due process, parental unfitness must be proved by clear and convincing evidence” and that “[a]n order granting partial summary judgment on the issue of parental unfitness where there are no facts in dispute and the applicable legal standards have been satisfied does not violate the parent’s statutory right to a jury trial.” Id., ¶¶4-5. There was no discussion of a “higher” burden of proof at summary judgment in Steven V., and further it would be antithetical to have a higher standard of proof at the summary judgment phase than at a jury trial. We are bound by the legal standard pronounced in Steven V. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

Continuing need for protection and services.

Apparently, the circuit court took judicial notice of the record from the CHIPS proceeding for this to confirm that J.K. in fact received notice of the conditions she had to satisfy in order to win return of her son. J.K. argued that this was improper on summary judgment under Perkins v. State, 61 Wis. 2d 341, 212 N.W.2d 141 (1973) (SCOW can’t take judicial notice of prior conviction for same conduct if it is not in records). The court of appeals held that Perkins concerned an appellate court’s ability to take judicial notice of documents outside the appellate record. Opinion ¶8. In contrast, a CHIPS proceeding and a TPR proceeding are interrelated and involve substantially the same parties.

¶9 Our supreme court has explained that “[g]enerally, a court may take judicial notice of its own records and proceedings for all proper purposes. This is particularly true when the records are part of an interrelated or connected case, especially where the issues, subject matter, or parties are the same or largely the same.” Johnson v. Mielke, 49 Wis. 2d 60, 75, 181 N.W.2d 503 (1970).

Based upon the unique facts of this case, the court of appeals also rejected J.K.’s argument that the county failed to make reasonable efforts to reunify her with her son. Id. ¶10.

“As applied” challenge to §48.415(6).

Sec. 48.415(6)(a) provides that a person fails to assume parental responsibility when she has not had “a substantial parental relationship with the child,” a term defined in 48.415(6)(b). J.K. challenged the constitutionality of the statute on the grounds that the CHIPS order, the conditions of return, and her incarceration prevented her from providing her son with daily care. See e.g. Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. The court of appeals held that unlike Jodie W., the circuit court here did not terminate J.K.’s rights solely due to her incarceration. Nor were the conditions of return impossible to satisfy. Rather, the totality of the circumstances showed that J.K.’s own behavior and choices (see ¶¶19-21) prevented her from developing a substantial relationship with her son.


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