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COA affirms summary judgment finding abandonment in TPR

L.E.H. v. R.E.M., 2022AP713-715, 11/22/11, District 1; (1-judge opinion, ineligible for publication); case activity

“Luke” and “Rebecca” had 3 children together. After their relationship ended, Rebecca struggled with addiction and was charged with a number of crimes. Luke married and successfully petitioned to terminate Rebecca’s parental rights.  Rebecca appealed the TPR arguing the circuit court (1) improperly granted summary judgment on the grounds that she abandoned her children, and (2) created the appearance of bias during the disposition hearing.

A circuit court may grant summary judgment when there are no genuine issues of material face and the moving party is entitled to judgment as a matter of law. Wis. Sta. §802.08(2). In this case, the circuit court held that as a matter of law Rebecca abandoned her children by failing to communicate or visit with them from late 2017 through 2018.

Rebecca’s argument appears to be that there would have been issues of material fact regarding whether she had good cause for not contacting her children. Specifically, trial counsel should have presented evidence of Luke’s history of domestic violence and evidence that Luke’s wife refused to facilitate contact between Rebecca and the children. Opinion, ¶13.

The court appeals held that if trial counsel had presented this evidence, it would not have created a genuine issue of material fact. Rebecca failed to demonstrate that she even attempted contact during the period of abandonment let alone that her attempts failed due to Luke’s domestic violence in 2015 when he choked her, stabbed her, and held her head under water. Opinion, ¶23.

The court of appeals seems to have missed the point here. Rebecca appears to be arguing that trial counsel failed to present evidence that due to Luke’s past assaults she was was afraid to even attempt contact with her children.

In any case, the circuit court and court of appeals are supposed to construe facts in favor of the party opposing summary judgment (i.e. Rebecca) which they did not do. Compare this case to Racine County DHS v. W.L.J. where District 2 reversed a summary judgment in a TPR case and noted “abandonment” is a fact intensive issue that usually can’t be resolved on summary judgment.

The court of appeals also held that Rebecca only tried to communicate with Luke’s wife to obtain the children’s contact information once during the period of abandonment. The wife told Rebecca that she had no rights.  This one exchange did not provide Rebecca with good cause for not communicating with her children.  Opinion, ¶24.

Rebecca also claimed that the circuit court judge showed objective bias against her. Even before the disposition hearing and before it issued a decision, it scheduled time at the end of the hearing for a proceeding allowing Luke’s wife to adopt Rebecca’s children. Right after terminating Rebecca’s rights, the judge said that she would “love” to get the kids on Zoom so she could conduct the adoption proceeding.

Postdisposition the judge denied any bias. She said she simply left time at the end of the hearing to effectuate the adoption. The court of appeals agreed.

¶32 This court agrees that there is no indication of objective bias here. Over the course of two days, the circuit court heard extensive testimony during the disposition hearing from Luke, his wife, Rebecca, and the children’s therapists. Then, following the testimony, the circuit court provided a lengthy analysis of that testimony and applied the factors found in WIS. STAT. § 48.426(3). Any comment that the circuit court made following the conclusion of the disposition hearing about moving forward with the petitions to have Luke’s wife adopt the children does not rise to the level of objective bias



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