Portage County DH & HS v. C.S., 2022AP1090, District 4, 02/23/2023, (one-judge decision, ineligible for publication) case activity
In what appears to be a first, the court of appeals addresses a grant of partial summary judgment against a parent specifically related to whether the county made a “reasonable effort” to provide services pursuant to a CHIPS order. See Wis. Stat. § 48.415(2)(a). One caveat being that the issue arises within the context of a postdisposition claim of ineffective assistance after trial counsel failed to file any response or affidavit opposing the county’s motion for summary judgment. Nevertheless, the court affirms the summary judgment order and holds that no genuine issue of material fact existed as to whether the county made a “reasonable effort” to provide services to C.S. that would have assisted him in meeting the conditions of return. (Opinion, ¶35).
In Steven V. v. Kelly H., 2004 WI 47, ¶44, 271 Wis. 2d 1, 678 N.W.2d 856, the Wisconsin Supreme Court held that neither the fundamental rights at issue nor due process prohibit the use of summary judgment at the grounds stage in TPR proceedings. In doing so, the court recognized that several TPR grounds are “expressly provable by official documentary evidence” while others are “fact-intensive” and “ordinarily” not appropriate for summary judgment, such as abandonment, failure to assume parental responsibility, and continuing CHIPS. Id., ¶¶36-37.
In this case, C.S.’s attorney failed to file any response to the county’s motion for summary judgment and later explained that he reviewed the record and discovery and had not been able to identify any issues of material fact. After the court granted the county’s unopposed motion and subsequently terminated C.S.’s parental rights, C.S. filed a postdisposition motion challenging the court’s summary judgment order through the rubric of ineffective assistance of counsel. In short, C.S. argued that trial counsel was ineffective for not asserting that whether the county’s effort to provide services to C.S. under the CHIPS order was “reasonable” was a question for the jury to decide at trial. C.S. argued that he never conceded or admitted that the county’s efforts were reasonable and that a jury could have concluded that the county’s efforts weren’t reasonable because (1) C.S. was incarcerated for the majority of the CHIPS order; (2) C.S. blamed “the system” for his inability to meet the conditions of return and believed that the county wasn’t helping him get his child back; and (3) a third-party AODA evaluation provided to trial counsel in discovery opined that the “system” had failed C.S. by not ensuring that he received AODA and mental health services while incarcerated.
The court of appeals decision focuses heavily on C.S.’s ineffective assistance of counsel claim and all but ignores the Steven V. court’s distinction between paper and fact-intensive TPR grounds. The court specifically faults C.S. for devoting much of his briefs to the argument that summary judgment should rarely be granted in fact-intensive TPR grounds. Instead, the court cites to Steven V.’s observation that the propriety of summary judgment is to be determined “case by case.” (¶18, n.3).
With respect to C.S.’s ineffective assistance claim, the court holds that C.S.’s trial counsel did not perform deficiently because no genuine issues of material fact exist as to whether the county made a reasonable effort to provide services to C.S. (¶¶21-35). In doing so, the court rejects each of C.S.’s three arguments noted above. Notably, the court rejects C.S.’s complaints about the county’s efforts as merely his “opinions rather than a failure on the part of the county to make reasonable efforts.” (¶32). Likewise, the court rejects C.S.’s reliance on the AODA evaluation because the evaluation was conducted related to an alternative to revocation in C.S.’s criminal case and rejects C.S.’s complaints about the county’s efforts while he was incarcerated by concluding that C.S. failed to establish that the county had the authority or the ability to provide AODA services to C.S. while he was in custody. (¶¶25-28, 33-34).
While it took close two decades for a continuing CHIPS summary judgment order to be reviewed (and affirmed) by the court of appeals, there is reason to believe that some TPR petitioners have in recent years become more aggressive in moving for summary judgment in fact-intensive TPR cases, including on continuing CHIPS grounds. While the ineffective assistance of counsel aspect of C.S.’s case somewhat clouds the underlying legal issue, the court’s ultimate holding is troubling: a parent’s “opinion” about the county’s efforts to provide services under the CHIPS order does not establish a genuine issue of fact for the jury to decide at trial. However, in most of these cases, the parent is likely the best and maybe the only witness available to testify about the parent’s perspective on the county’s efforts to provide services pursuant to the CHIPS order. At trial, the county will invariably call a social worker to set forth the county’s “reasonable efforts.”
If a parent’s contrary “opinions” about those efforts, about which they have direct and personal knowledge, are insufficient to establish a genuine issue of material fact, it would appear that summary judgment will be granted (and affirmed) much more “ordinarily” than envisioned by the Steven V. court. 271 Wis. 2d 1, ¶36. Moreover, in a situation where the parent contests the TPR petition and affirmatively asserts that the county’s efforts were not reasonable or did not help them meet the conditions of return, how can it be said that no reasonable jury could have concluded that the county’s efforts were not reasonable? See id., ¶43 (reasoning that mandating “a jury trial where the parent does not dispute the facts regarding unfitness alleged in the petition is a complete waste of judicial resources.”).
Wasn’t Jefferson County DHS v. C.C., 2016AP1983, also a case affirming a grant of summary judgment for a continuing CHIPS case?
Good catch, thanks. The post has been edited to narrow the comment to “reasonable effort” specifically. In Jefferson County DHS v. C.C., the parent conceded the first three elements of the prior version of Wis. Stat. § 48.415(2)(a), including the county’s reasonable efforts.