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Partial TPR summary judgment upheld

Racine County HSD v. R.E., 2016AP2039, 3/15/2017, District 2 (one-judge decision; ineligible for publication); case activity

The record supported the circuit court’s grant of partial summary judgment on grounds of abandonment because there was no genuine issue of material fact as to whether R.E. had failed to visit or communicate with her child, S.E., for a period of three or more months, § 48.415(1)(a)2.

R.E. argues there’s a genuine issue of material fact based on her affidavit averring that, during the three-month time period being considered, she gave two county employees a gift for S.E. and asked to schedule an appointment to set up visitation. (¶8). This doesn’t suffice:

¶9     The plain language of Wis. Stat. § 48.415(1) provides that abandonment has occurred if the child “has been placed, or continued in a placement, outside the parent’s home by a court order … and the parent has failed to visit or communicate with the child for a period of 3 months or longer.” Sec. 48.415(1)(a)2. (emphasis added). [Case worker] Kaskin’s affidavit established that this was the situation between R.E. and S.E. R.E.’s contention she communicated with County employees during the relevant time period “about” S.E., “both about [R.E.’s] Christmas present for [S].E., and about scheduling an appointment to discuss visitation” does not save her from the circuit court’s finding of abandonment.

¶10     Communicating with others “about” S.E. is not communicating “with” S.E., which is what Wis. Stat. § 48.415(1)(a)2. requires to stave off a finding of abandonment. Under the statutory scheme of § 48.415(1), communicating “about” a child only comes into play “[i]f the parent proves good cause” for failing to communicate “with” the child during the relevant time period. See § 48.415(c)2., 3. (emphasis added); ... Because R.E. has not even attempted to argue she had good cause for failing to communicate with S.E. during the relevant time period, the fact that she may have communicated about S.E. does nothing to undermine summary judgment.

R.E. doesn’t contend that giving the present to the county employees itself constituted communication “with” S.E., and if she had that is still insufficient to defeat summary judgment. It would amount to “incidental contact” only, and that’s not enough under § 48.415(1)(b). (¶10 n.2).

R.E. also complains that the circuit court erred in denying a continuance of the dispositional hearing so that she could present the testimony of a witness who was a possible alternative placement for S.E. The hearing had been set over once before to allow more time for R.E.’s witnesses, but it turned out this witness was not available at the rescheduled hearing. (¶¶14-17). The circuit court refused to reschedule, citing the best interests of the child in finalizing the proceeding, noting the new date was set with R.E.’s input, and that the witnesses unavailability wasn’t due to an emergency. (¶18). This was not an erroneous exercise of discretion and the court of appeals won’t disturb it. (¶¶19-21).

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