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Summary judgment in TPR case affirmed

Jefferson County DHS v. C.C., 2016AP1983, District 4, 12/21/16 (one-judge decision; ineligible for publication); case activity

The circuit court properly granted summary judgment on the petition terminating C.C.’s parental rights despite C.C.’s claims that the circuit court violated the mandatory notice provision under § 802.08(2) and that a genuine issue of material fact exists on the issue of grounds for termination.

Under § 802.08(2), a motion for summary judgment “shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing.” The County served its summary judgment motion on January 7 and the hearing took place 13 days later, on the 20th. (¶11). While that timeline doesn’t comport with the statute, C.C. didn’t object in the circuit court to the timing of the hearing, and in fact, says the court, agreed to the timeframe. Thus, she has forfeited this objection. (¶¶12-14). Re-configuring the argument as a claim that the summary judgment process wasn’t “carefully administered” doesn’t get around the forfeiture. (¶¶25-26).

Nor was there a genuine issue of material fact precluding summary judgment. In reviewing summary judgment, the court of appeals examines whether the moving party has made a prima facie case for summary judgment and, if so, whether the affidavits submitted by the opposing party create material factual disputes or allow reasonable conflicting inferences from the undisputed facts. (¶17). The County made a prima facie showing of grounds to terminate based on continuing CHIPS (¶¶18-20), but C.C.’s responsive affidavits fall short of refuting or genuinely contesting the County’s evidence showing there is not a substantial likelihood that C.C. will be able to complete the conditions of return within the required time period. (¶¶22-24).

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