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TPR – Summary Judgment on Grounds (Abandonment)

Nathan Y. v. Tarik T., 2010AP992, District IV, 10/7/10

court of appeals decision (1-judge, not for publication); for Tarik T.: Philip J. Brehm

The court rejects the argument that under Steven V. v. Kelley H., 2004 WI 47, ¶36, summary judgment is inappropriate when the ground alleged is abandonment.

¶7        …  First, Steven V. explained that its discussion of the use of summary judgment procedure on grounds proven by documentary evidence versus those proven by non-documentary evidence was not “mean[t] to imply that the general categorization of statutory grounds in this and the preceding paragraph represent a definitive statement about the propriety of summary judgment in any particular case.”  Id., ¶37 n.4.  The court added:  “The propriety of summary judgment is determined case-by-case.”  Id.  Second, Steven V.’s holding that use of summary judgment procedure in the grounds phase does not violate the parent’s right to a jury trial or to procedural due process was not limited to certain grounds for termination.  Accordingly, we reject Tarik’s argument that summary judgment is always inappropriate when the alleged grounds for termination is abandonment.  We now turn to the submissions to determine whether summary judgment was appropriately granted in this case.

SJ was appropriate on the facts: the mother removed the child from Iowa to Madison, to escape abuse from Tarik, and Tarik failed to have any contact with them for a number of months. Although he asserted, in effect, that the mother obstructed his efforts to see the child, he didn’t deny that he knew where she worked, and had her email address and her parents’ residential address.

¶11      We conclude that the submissions fail to raise an issue of material fact concerning whether Tarik had good cause for failing to communicate with Lauren or Quincy from October 2007 to July 2008.  Tarik’s proposed reasons for failing to contact Lauren and Quincy during this time are nothing more than speculation, and are not supported by the summary judgment submissions.  Accepting as true Tarik’s assertion as fact that his communication with Quincy was controlled by Lauren, and that any gift or communication to Quincy would have to go through Lauren, neither constitutes good cause for failing to even attempt to contact Lauren about Quincy.  If Tarik had reasons constituting good cause for his failure to contact Lauren or Quincy, these reasons should have been provided in his summary judgment submissions.  Thus, while summary judgment is ordinarily inappropriate in termination of parental rights cases premised on a fact-intensive grounds for parental unfitness such as abandonment, Bobby G., 301 Wis. 2d 531, ¶40, the submissions in this case fail to present any factual dispute from which a reasonable inference could be drawn that Tarik had good cause for not communicating with Lauren about Quincy or with Quincy during this nine-month period.  Accordingly, we conclude that the circuit court properly granted Nathan’s motion for summary judgment as to grounds for termination.

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