Dane County DHS v. Wesley J., 2013AP1226, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, does not erect a general bar to summary judgment in TPR cases alleging abandonment as the grounds for termination:
¶15 I disagree with Wesley’s assertion that Steven V. prohibits summary judgment in a termination of parental rights case based on abandonment. Indeed, the Steven V. court itself made this clear. First, the observation quoted above includes the qualifier “ordinarily.” That is, the court is merely observing that there will ordinarily, but not always, be a factual dispute that prevents summary judgment when the issue is abandonment. Further, the Steven V. court noted that, by distinguishing between statutory grounds provable by documentary evidence and grounds provable by other types of evidence, like abandonment, the court did not “mean to imply that the general categorization of statutory grounds … represent a definitive statement about the propriety of summary judgment in any particular case. The propriety of summary judgment is determined case-by-case.” Steven V., 271 Wis. 2d 1, ¶37 n.4.
The court also rejects the argument that summary judgment was inappropriate because there was a genuine issue of material fact as to the grounds of abandonment due to the County’s failure to present evidence that Wesley had no good cause for abandonment:
¶18 Wesley fails to recognize that he has the burden of proof as to good cause for abandonment pursuant to Wis. Stat. § 48.415(1)(c). It is Wesley’s burden to produce evidence showing that he had good cause, not the Department’s burden to prove that he did not. Wesley failed to provide any summary judgment materials, in response to the Department’s motion, showing that he had good cause.
Finally, the court of appeals does not decide whether the circuit court erred in eliciting testimony from the social worker and Wesley at the summary judgment hearing. Even if Wesley is right that § 802.08(2) limits summary judgment materials to the pleadings, depositions, answers to interrogatories, admissions, and affidavits, the circuit court’s error doesn’t require reversal because there was sufficient and undisputed evidence presented in the affidavit of the social worker to support summary judgment. (¶¶19-20).
The TPR petition in this case alleged both abandonment and failure to assume parental responsibility (¶¶1-5), but the court discusses only abandonment because “[e]ither is a sufficient ground to support termination of Wesley’s parental rights. See Wis. Stat. § 48.415 (‘Grounds for termination of parental rights shall be one of the following ….’ (emphasis added)).” (¶14; see also ¶17 n.3).