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Partial summary judgment in TPR case affirmed

C.K. and A.K. v. K.L., 2022AP1289, District 4, 12/22/22 (one-judge decision; ineligible for publication); case activity

The circuit court didn’t err in granting partial summary judgment on the termination of parental rights petition filed against K.L. by C.K. and A.K., the grandparents and guardians of K.L.’s daughter B.K., because there were no genuine issues of material facts as to whether K.L. established a good cause defense to the ground of abandonment alleged in the petition.

The petition alleged K.L. abandoned B.K. between December 2018 and December 2019 by failing to visit or communicate with B.K. or B.K.’s grandparents, with whom B.K. resided and who supervised K.L.’s visitation. (¶¶3-7). K.L. didn’t dispute the allegation, but asserted that she had “good cause” as defined in § 48.415(1)(c) for her lack of visitation and communication. (¶¶8, 19). The circuit court granted partial summary judgment, holding there was no genuine issue of material fact that for at least a 6-month period K.L. failed to visit or communicate and she had no good cause for that failure. (¶9).

The pertinent factors for determining whether a parent had good cause include: 1) whether the parent had a reasonable opportunity to visit or communicate; 2) the parent’s attempts to contact the child; 3) whether a person with physical custody of the child prevented or interfered with efforts by the parent to visit or communicate; and 4) “any other factors beyond [the parent’s] control which prevented or interfered with visitation or communication.” (¶20, citing Wis. J.I.–Children 314 at 3).

K.L.’s good cause defense is based primarily on her subjective discomfort with the supervision of visits by C.K., the grandmother—which arose because C.K. had reported K.L. to police for an incident with another of K.L.’s children; her assertion that C.K. interfered with K.L.’s ability to visit or communicated because C.K. exercised complete and unreasonable control over her access to B.K.; and the lack of any alternative person to supervise the visits. (¶¶22, 25). The court of appeals holds that, even when the facts about C.K.’s actions asserted by K.L. are viewed most favorably to her, she doesn’t explain why C.K.’s actions caused her not to communicate and visit for an entire year, and absent such an explanation no reasonable fact-finder could find K.L. had good cause. (¶¶23-24, 26).

K.L. also argues that her good-cause defense is supported by the fact that, during the relevant 12-month period, she was trying to terminate the grandparents’ guardianship. This effort would presumably be a source for, or at least exacerbate, the strained, contentious relationship with the grandparents that is the primary basis for K.L.’s good-cause defense. Again, the court says, K.L. doesn’t explain how her actions in the guardianship proceeding prevented or interfered with her ability to visit or communicate with B.K. or communicate with the grandparents about B.K. for 12 months; thus, any inference or conclusion as to how he actions in the guardianship proceeding affected her ability to visit or communicate with B.K. would be based on speculation and do not raise a genuine issue of material fact regarding her good faith defense. (¶27).

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