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No error in granting summary judgment in TPR case as to one period of abandonment

Juneau County DHS v. L.O.O., 2018AP654, District 4, 11/8/2018 (one-judge decision; ineligible for publication); case activity (including briefs)

The County filed a TPR petition alleging as grounds that L.O.O. abandoned his child under § 48.415(1)(a)2.  The County alleged 6 three-month periods of abandonment. (¶4). Because there was no issue of material fact as to one of the periods (from January 1 to May 2, 2016), summary judgment was appropriate.

¶14     L.O.O. admitted in his deposition that he had no contact with A.D.O. while an active child support warrant was issued against him, from January 28, 2016 to April 27, 2016. L.O.O. visited with A.D.O. on January 28, 2016, so L.O.O.’s admission, standing alone, established abandonment from January 29, 2016 to April 27, 2016, two days short of the required three-month period.

¶15     L.O.O.’s admission does not stand alone in the record. The County’s motion for partial summary judgment included an affidavit from A.D.O.’s foster parent, with whom A.D.O. was placed for the entirety of the relevant period. The affidavit stated that L.O.O. did not have contact with A.D.O. from January 28, 2016 to May 2, 2016. The County’s motion also included an affidavit from the case worker assigned to A.D.O.’s case. …. The case worker’s affidavit states that L.O.O. did not have contact with A.D.O. between January 28, 2016 and May 2, 2016. Thus, the County set forth specific information and dates and made a prima facie case of abandonment for the period from January 28, 2016 to May 2, 2016.

¶16     L.O.O. does not attempt to rebut the County’s prima facie case by arguing that he had good cause for having failed to visit or communicate with A.D.O. throughout the relevant time period. Wis. Stat. § 48.415(1)(c)1., 2.; see also Odd S.-G. [v. Carolyn S.G.], 194 Wis. 2d [365,] 372[, 533 N.W.2d 794 (1995)]. Instead, L.O.O. argues that the County relied only on L.O.O.’s admission to establish the dates of the period of abandonment. But, as shown, the record includes two affidavits in which the affiants stated that L.O.O. did not visit or communicate with A.D.O. between January 28, 2016 and May 2, 2016. Even though L.O.O.’s admission, standing alone, did not establish the requisite three-month period of abandonment, the County set forth other specific facts in support of the alleged period of abandonment. L.O.O., on the other hand, has not alleged any visitation or communication with A.D.O. during this period. The closest that L.O.O. comes to alleging visitation or communication with A.D.O. around this period is his allegation that he visited with A.D.O. on or about May 7, 2016, but that date falls outside of the relevant period. Therefore, L.O.O.’s argument rests solely on what he claims is a deficiency in the County’s prima facie showing. That does not create a genuine factual dispute in this instance.

L.O.O. also claims that trial counsel was ineffective for failing to investigate information relating to another alleged three-month period of abandonment. Given that summary judgment was appropriate on one period, any failure by trial counsel to investigate a different period didn’t prejudice L.O.O. (¶19).

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