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Defense Win! COA reverses summary judgment order in private TPR

K.W. & D.W. v. S.L., 2023AP1582, 2/13/24, District 3 (one-judge decision, ineligible for publication); case activity

The summary judgment issue here turned on one simple question: did a genuine issue of fact exist as to whether S.L. (“Susan”) knew or could have reasonably discovered the whereabouts of her son (Alex) during the relevant period of alleged abandonment? Upon consideration of Susan’s multiple affidavits and drawing reasonable inferences in the light most favorable to the Susan, as the non-moving party, the court of appeals reverses the circuit court’s order granting summary judgment on grounds.

K.W. and D.W. (the foster parents) petitioned to terminate Susan’s parental rights to Alex on grounds of abandonment. Shortly thereafter, they filed motion for summary judgment. At issue was a period of time from March 2022, when the foster parents obtained guardianship over Alex, and October 2022, when they filed the TPR petition. The foster parents asserted that Susan knew where they lived based on a prior CHIPS case and because the guardianship paperwork clearly informed Susan where Alex resided.

However, Susan filed affidavits disputing those claims. First, Susan claimed that she did not know where Alex resided and she never communicated directly with the foster parents and during the CHIPS case her communications to Alex went through her social worker. Second, Susan asserted that she never received the guardianship petition or other paperwork because it was mailed to her brother’s residence where she no longer resided. While Susan admitted that her brother sent her a “screenshot of the upcoming [c]ourt date,” and she thereafter appeared in court for the guardianship hearing, she asserted that she never received any paperwork informing her of Alex’s specific whereabouts. Further, Susan asserted that she sent a book to Alex in November 2021, but that it was returned to sender. Finally, the fact that Susan sent a letter to Alex at the foster parents’ residence in November 2022 after she received a copy of the TPR petition does not establish that she knew where Alex was during the alleged abandonment period. Op., ¶¶14-17.

Next, the foster parents argued that even if Susan did not know Alex’s whereabouts prior to October 2022, she could have discovered this information. Again though, the court of appeals concludes that a “genuine dispute of this material fact exists on this point, preventing summary judgment.” Op., ¶18. Refusing to simply assume Susan could have discovered Alex’s whereabouts, the court of appeals rightly relies on Susan’s affidavits wherein Susan explained the efforts she went through to obtain the foster parents’ contact information prior to October 2022. Susan stated that she sought and tried to obtain the foster parents contact information from the Department that handled her prior CHIPS case, but the Department’s response was that they were not involved in the guardianship petition (or the TPR petition). Susan also explained that she contacted Alex’s father, but was likewise not provided any information. As the court must, it views Susan’s asserted facts in the light most favorable to her and concludes that a “reasonable jury could find that Susan made reasonable efforts to obtain Alex’s foster parents’ contact information but was unable to do so.” Op., ¶20.

Because genuine issues of fact exist regarding a dispositive issue, whether Susan knew or could have (reasonably) discovered Alex’s whereabouts during the alleged abandonment period, the court concludes as it must that summary judgment is inappropriate and reverses the circuit court.

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