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TPR summary judgment motion may be filed anytime before trial

Brown County DHHS v. T.R., 2022AP1094, District 3, 1/20/23 (one-judge decision; ineligible for publication); case activity

In a TPR proceeding a motion for summary judgment may be filed any time before trial, as prescribed in § 48.297(1) and (2), and is not governed by the time limit for summary judgment motions prescribed in § 802.08(1).

The County filed a motion for partial summary judgment about 9 months after it filed the TPR petition against T.R. The circuit court granted the motion. T.R. argues the motion was untimely because § 802.08(1) requires summary judgment motions to be filed within 8 months of the filing of a summons and complaint. (¶¶3-8).

The court of appeals rejects T.R.’s claim and holds that the applicable deadline is the one in § 48.297(1) and (2), which allows motions “capable of determination without trial” to be filed “any time” before trial. Though § 802.08(1) refers specifically to summary judgment motions, § 801.01(2) provides that the civil procedure code “govern[s] [the] procedure and practice in circuit courts of this state in all civil actions … except where different procedure is prescribed by statute[.]” Because § 48.297(1) and (2) are specific to children’s court proceedings, they provide a different procedure for the timeliness of dispositive motions and therefore govern the timeliness of summary judgment motions in TPR proceedings. N.Q. v. Milwaukee County Dep’t of Social Services, 162 Wis. 2d 607, 612, 470 N.W.2d 1 (Ct. App. 1991) (the children’s code is of statutory origin and is controlled by the code of civil procedure unless a specific statute within the children’s code requires a different procedure). Because the County timely filed its motion for partial summary judgment before trial, as allowed by § 48.297, the circuit court didn’t err in considering it. (¶¶10-12).

T.R. relied on Steven V. v. Kelly H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, which, citing § 802.08, held that partial summary judgment is permissible in TPR proceedings. But Steven V. didn’t address the timing of summary judgment motions, and the decision acknowledged that the civil procedure statutes apply in TPR cases only if another statute does not prescribe a different procedure. (¶¶13-15).

Moreover, even if the § 802.08(1) deadline applied, a circuit court has the discretion to address a motion filed after a statutory deadline, and it would have been reasonable for the court to do so here. (¶¶16-17).

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