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Summary judgment on TPR grounds reversed

Marathon County DHS v. S.K., 2021AP1124 & 2021AP1125, District 3, 11/18/21 (one-judge decision; ineligible for publication); case activity

The circuit court granted partial summary judgment on the petitions to terminate the parental rights of S.K. (“Sarah”) for failure to assume parental responsibility of her two daughters. The court of appeals reverses, holding there are genuine issues of material fact that require a trial on the grounds for the petitions.

Sarah’s daughters were removed from her home due to her incarceration for various short periods totaling about 6½ weeks between December 2012 and November 2016. Sarah was incarcerated again after the children were removed, though she made numerous (if not all) scheduled visits to them and, after they were moved 150 miles away, she periodically called and wrote to them in their foster care placement. Based on the first foster parents’ affidavit alleging deficiencies in Sarah’s conduct, the circuit court granted summary judgment on the grounds of failure to assume parental responsibility. (¶¶3-12). Not so fast, says the court of appeals, which agrees with Sarah’s thorough dissection of the circuit court’s deficient reasoning.

First, the circuit court erred “by focusing on the nature and extent of her relationship with her children after their removal from her care, rather than considering the totality of the circumstances that occurred over the entirety of her daughters’ lives.” (¶19 (emphasis added)). The failure to assume parental responsibility ground is an assessment spanning the entirety of the child’s life, and Sarah’s summary judgment submissions evidenced the care, supervision, and continuing support that she alone provided to her children during the first four years of their lives; thus:

Differing reasonable inferences could be drawn from the nature of Sarah’s relationship with her daughters when considering the amount of parental supervision and care she provided over the entirety of her children’s lives. We therefore conclude the court erred by concluding that Sarah had no substantial relationship with her daughters, as a matter of law, based primarily on the quality of Sarah’s relationship with them after they were removed from her care. (¶20).

The circuit court also erred by evaluating the nature and extent of her relationship with the children after their removal from her care. “…[A] jury would be entitled to conclude that the inferences drawn from [the] facts [relating to Sarah’s relationship with the children after removal], interpreted in the light most favorable to Sarah, support a finding that Sarah assumed parental responsibility for her children. The court therefore erred by failing to draw those inferences in Sarah’s favor, as it was required to do in the context of the County’s partial summary judgment motion.” (¶24). In particular, the court agrees with Sarah that:

…the circuit court erred by choosing between reasonable inferences in concluding that the number of Sarah’s missed visits, or her failure to sometimes attend the children’s bedtimes or to schedule their medical appointments, outweighed the significance of the visits Sarah did attend and the love, care and supervision that she provided during those visits, and prior to the children’s removal from her care. This weighing of reasonable, differing inferences is not proper for a court in deciding a summary judgment motion. (¶26).

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