Court: Court of Appeals of Wisconsin; February 28, 2019; Wisconsin; State Appellate Court
B.P. and T.F. appeal partial summary judgments regarding the termination of their parental rights for their daughter, Allie, based on abandonment under WIS. STAT. 48.415(1)(a)3. T.F. argues that the Brown County Human Services Department (the Department) improperly claimed abandonment, asserting that the law only allows for termination under WIS. STAT. 48.415(1)(a)2 when a Child in Need of Protection or Services (CHIPS) order is in place. She contends that the element of abandonment—specifically that a child is "left" by a parent—cannot be satisfied since Allie was involuntarily removed from her custody under a CHIPS order. T.F. also raises a constitutional equal protection challenge against the Department's petition but did not properly preserve this argument in the circuit court. Both parents claim the court erred in granting summary judgment due to genuine issues of material fact regarding their good cause defenses for abandonment.
The court concludes that the Department can pursue termination under subd. 3, even with a CHIPS order in effect, and that involuntary placement can fulfill the "has been left" requirement. The court affirms the partial summary judgment against B.P. due to insufficient factual issues regarding his defense. However, it reverses the judgment against T.F. because there are material questions of fact regarding her good cause defense, remanding her case for a fact-finding hearing. Allie was born in June 2014, and CHIPS proceedings began in July 2014, with Marinette County granted temporary custody.
In October 2014, the circuit court determined that Allie required protection and services, leading to a CHIPS dispositional order that placed her in a foster home in Marinette, Wisconsin. In March 2015, the case was transferred to Brown County, along with Allie's placement to a different foster home. A June 2016 order returned Allie to her original foster parent, now in Madison. Since her removal in July 2014, Allie has not returned to the care of her biological parents, T.F. or B.P. On October 30, 2017, the Department filed petitions to permanently terminate their parental rights, alleging abandonment for over six months as per WIS. STAT. 48.415(1)(a)3. T.F. and B.P. contested the petitions, with T.F. arguing that the Department's grounds for termination were legally inapplicable due to Allie's involuntary removal under a CHIPS order. Both parents claimed good cause for their lack of contact with Allie during the alleged abandonment period. The circuit court granted the Department's motion for partial summary judgment, concluding that T.F. and B.P. had abandoned Allie and did not meet the good cause defenses. The appeal raised two main issues: T.F.'s argument regarding the applicability of the abandonment ground under CHIPS orders, and claims from both parents that genuine issues of material fact existed concerning their good cause defenses. T.F. contended that the Department was required to plead abandonment under a specific subdivision related to CHIPS orders and challenged the sufficiency of the Department's claim under the abandonment ground cited. Statutory interpretation questions were approached by examining the text of the statute, its context, and purpose.
The statute WIS. STAT. 48.415(1)(a) allows the Department to plead any grounds for abandonment in termination of parental rights (TPR) cases. The court emphasizes that statutory interpretation must rely on the plain language of the statute without adding language that does not exist. Specifically, T.F. argued that when an out-of-home CHIPS (Child in Need of Protection or Services) order is in effect, the Department is obligated to plead abandonment solely under subdivision 2, which directly references CHIPS orders. However, the court disagrees, stating that the statute does not impose such a limitation and that the word "any" in the statute indicates the Department can plead any applicable abandonment ground. The interpretation of the statute must consider the full legislative intent, and both subdivisions 2 and 3 serve distinct purposes, with different elements based on the specifics of each case. The court therefore concludes that allowing the Department to plead various grounds for abandonment does not render any provisions of the statute superfluous.
The Department may initiate termination of parental rights (TPR) if it can demonstrate that a child under a Child in Need of Protection or Services (CHIPS) order has been placed outside the parent's home, that the parent received the requisite notice per WIS. STAT. 48.356(2) or WIS. STAT. 938.356(2), and that the parent failed to visit or communicate with the child for three months or more. Alternatively, if a parent leaves their child with another person, knows the child's whereabouts, and does not visit or communicate for six months or more, the Department can also proceed under a different provision, subd. 3, without needing to prove that notice was given.
The distinction between the two subdivisions does not imply a heavier burden of proof for the Department under subd. 3; rather, it reflects differing factual circumstances. When a CHIPS order is active, the legislature allows for an earlier TPR under subd. 2, necessitating notice about the consequences of failing to maintain contact within a three-month timeframe. This shorter period is justified by the presumed peril to the child under an active CHIPS order. Conversely, under subd. 3, a six-month non-communication period is deemed sufficient to establish abandonment without the need for prior notice.
The legislature’s framework thus allows the Department to plead for abandonment under either subdivision in TPR cases involving out-of-home CHIPS placements, affirming that both legal bases for abandonment may be applicable depending on the circumstances. The document concludes by indicating that the Department may pursue the elements of subd. 3 even when a CHIPS order is in effect.
The Department can establish abandonment in out-of-home CHIPS cases under WIS. STAT. 48.415(1)(a)3. T.F. initially claimed that the Department must file a TPR petition based solely on abandonment under subdivision 2 but has since shifted her argument to question whether the Department can prevail on any grounds listed under WIS. STAT. 48.415. T.F. contends that the Department did not adequately state a claim because one element of subdivision 3—that the parent "left" the child with another person—is not satisfied in this context. She argues that a child placed in a CHIPS action cannot be considered as having been "left" by the parent, according to the term's ordinary meaning. The Department counters this, citing the case Rhonda R.D. v. Franklin R.D., where the court interpreted the "has been left by the parent" element and found that "left" could mean either that a parent allowed the child to remain with someone or placed the child there. The court concluded that subdivision 3 applies to scenarios where a parent actively places a child with another or fails to communicate with a child whose whereabouts they could ascertain. T.F. argues that Rhonda R.D. is not applicable but does not provide sufficient reasoning for her position regarding the differences between a divorce order and an out-of-home CHIPS order.
A unique power disparity exists when the government is the petitioner in termination of parental rights (TPR) cases, but this assertion does not affect the application of the holding in Rhonda R.D. regarding out-of-home CHIPS orders. A child's placement outside a parent's home under a CHIPS order fulfills the “has been left by the parent with any person” requirement of subdivision 3, regardless of whether the parent actively placed the child, provided the parent is aware of the child's whereabouts and fails to maintain contact. The focus of subdivision 3 is on the parent's lack of contact post-removal, not the reason for the removal itself.
T.F. argues that allowing the Department to proceed under subdivision 3 in her case would result in unconstitutional outcomes, violating her substantive due process and equal protection rights by enabling arbitrary treatment of similarly situated parents. However, the Department counters that T.F. did not notify the Wisconsin Attorney General of her constitutional claims, which is necessary for the court to address such issues, as established in Wisconsin law. T.F. contends that this requirement does not apply because she is not contesting the statute's constitutionality but rather its application, arguing for a statutory construction that would limit the Department to petitioning under subdivision 2. Nonetheless, her argument relies on an analysis that inherently requires evaluation of whether proceeding under subdivision 3 would infringe on her equal protection rights.
T.F. did not notify the attorney general regarding her challenge to the constitutionality of the Department's claim under subdivision 3, and she did not contest the Department's assertion of this failure. Although not providing such notice does not constitute a jurisdictional barrier to appellate review in non-declaratory judgment cases, the court declines to consider T.F.'s equal protection argument, which she raised for the first time on appeal. The Department did not address the constitutional merits due to T.F.'s lack of notice to the attorney general, and the court feels it would benefit from input from the attorney general, the Department, and the circuit court.
T.F. argues that allowing the Department to proceed under subdivision 3 undermines her good cause defense by requiring direct communication with the child or the child's custodian, rather than just the Department. She claims that the CHIPS order only necessitated communication with the Department to regain custody of her child, Allie. However, the court finds that T.F.'s communication with the Department remains relevant to her good cause defense, as it can demonstrate good cause for her failure to communicate with Allie's foster parent, despite not fulfilling the statutory requirement to do so. This relevance holds true regardless of whether the Department pursued abandonment under subdivision 2 or 3.
T.F. and B.P. acknowledge the Department's successful demonstration of abandonment under subdivision 3, which allows for termination of parental rights. However, they contest the circuit court's grant of partial summary judgment on the grounds that genuine issues of material fact remain regarding their good cause defenses for not visiting or communicating with their child, Allie, during a six-month period. The court had concluded that both T.F. and B.P. failed to present sufficient evidence for good cause under WIS. STAT. 48.415(1)(c).
Summary judgment is appropriate when there are no genuine issues of material fact, as established through various legal documents and affidavits. The court must first assess the moving party's evidence to determine if a prima facie case exists, then evaluate the opposing party's evidence to identify any factual disputes that warrant a trial. The essence of summary judgment is to prevent unnecessary trials when no facts are in dispute; however, if reasonable inferences can be drawn from the evidence, summary judgment should be denied.
In this case, T.F. argues she had good cause for her lack of communication and visits with Allie from January 1 to July 1, 2017. The court finds there is indeed a factual dispute regarding T.F.'s good cause, indicating that the circuit court erred in granting summary judgment on that point.
T.F. claimed that her lack of transportation was a valid reason for her inability to visit her child Allie, who was placed over 100 miles away. She testified that the Department required her to complete unspecified services before visits could resume, yet did not inform her of these requirements or arrange for the services. Evidence was presented that raised material facts regarding whether T.F. had good cause for not visiting. The Department contended that T.F.'s transportation issues did not justify her failure to visit since they allegedly offered transportation services, asserting that T.F. was aware of this offer but did not pursue it. However, the case worker's testimony indicated only that there had been discussions about future transportation, not a concrete plan in effect during the relevant six months.
Additionally, T.F. argued she had good cause for failing to communicate with Allie, citing Wisconsin law that permits such a defense if communication would be deemed meaningless due to the child's age or condition. Allie turned three in June 2017, which T.F. believed supported her defense. The circuit court, however, ruled against her, citing a response from T.F. to an interrogatory that indicated she never found communication meaningless. T.F. clarified that she interpreted the interrogatory as asking if communication was meaningless to her as a mother, hence her answer of "no." She contended that the interrogatory was vague and argued that her response should not be used against her. The Department did not address this argument on appeal, which could imply a concession.
A failure to refute an argument is deemed a concession, yet the merits of T.F.'s argument are considered. Under Wisconsin Statute 48.415(1)(c)3, a parent's lack of communication with a child can be excused if the child is too young or has a condition that makes communication meaningless. The statute aims to provide a defense for parents whose attempts at communication would not be comprehensible to the child, instructing them to communicate with the child's custodian instead.
The Department's interrogatory regarding whether communication with the child, Allie, was meaningless is found to be vague, as it does not clarify the intended audience or the method of communication. A reasonable fact-finder could conclude that T.F.'s communication efforts were indeed meaningless due to Allie's young age, despite T.F.'s assertion that her communications were meaningful. This ambiguity creates a genuine dispute about the meaning of T.F.'s contact with Allie, leading to the conclusion that the circuit court erred in granting partial summary judgment against T.F. A remand for a fact-finding hearing is directed.
B.P. also claims disputed material facts exist regarding his good cause defense for abandonment, citing mental health issues and emotional strain following the deaths of his family members shortly after Allie's birth. He details his diagnoses and the impact of these events on his ability to communicate or visit Allie. Although he claims to have attempted contact with her caregiver, the Department argues that B.P. did not adequately demonstrate the relevance of his facts to his good cause defense, suggesting that partial summary judgment was appropriate.
B.P. must provide expert testimony to demonstrate that his mental health diagnoses and emotional strain directly interfered with his ability to visit or communicate with Allie. The Department's position is supported; B.P. is required to allege specific facts showing how these factors caused his failure to engage with Allie. He incorrectly cites jury instruction WIS JI- CHILDREN 314 (2015), which states that factors beyond a parent's control should be considered in determining a "good cause" defense. However, merely asserting the existence of mental health issues and emotional strain is insufficient; B.P. must establish a causal connection.
The record does not contain evidence linking B.P.'s mental health issues to his failure to visit or communicate with Allie during the relevant period from January 1 to July 1, 2017. Although B.P. claims to have faced mental health problems and emotional strain, any conclusions regarding their impact on his ability to engage with Allie would be speculative. Consequently, summary judgment was deemed appropriate, as there was insufficient evidence for a reasonable jury to rule in B.P.'s favor.
Additionally, B.P.'s claim of making two unanswered calls to Allie's caregiver lacks specificity and fails to create a material question of fact regarding his communication efforts. He did not provide details about the timing of these calls, nor could a reasonable inference place them within the relevant time frame. Furthermore, the necessity of expert testimony is a legal question, and in situations where causation involves complex or technical matters, the absence of such testimony renders B.P.'s proof insufficient. The court emphasizes the distinction between matters that require expert explanation versus those that are within common knowledge.
Expert testimony is necessary when addressing issues that require specialized knowledge beyond common experience, particularly relating to B.P.'s claims regarding his mental health and its impact on his ability to interact with Allie. B.P. did not provide adequate explanations or expert support regarding his emotional state, memory loss, or the effects of his family members' deaths, making it impossible for a reasonable jury to find good cause for his lack of communication or visits without speculation. B.P. also contends that the circuit court improperly assessed his credibility and argues against the appropriateness of summary judgment in cases of parental unfitness. While the court's credibility assessment was indeed inappropriate for summary judgment, it ultimately did not affect the outcome, as B.P. failed to present sufficient facts or expert opinions to warrant a favorable jury verdict. Additionally, the court affirmed that the Department could invoke any applicable grounds for abandonment in a TPR action, regardless of the specific statutory basis, and that the out-of-home placement satisfied the statutory requirement regarding abandonment.
The circuit court's decision to allow the Department to plead and demonstrate grounds for terminating T.F.'s and B.P.'s parental rights under Wis. Stat. § 48.415(1)(a)3 is affirmed. The court also upheld the partial summary judgment against B.P. but reversed the judgment against T.F., remanding her case for a fact-finding hearing per Wis. Stat. § 48.424. The appeal was consolidated and transitioned from a one-judge to a three-judge panel due to procedural requirements, with the court extending the decision deadline due to scheduling conflicts. The CHIPS order was entered on October 9, 2014, following a hearing on September 26, 2014. The relevant statutes regarding abandonment were noted to be substantively similar between the 1993-94 and 2017-18 versions, with the abandonment periods being longer in the former. The court evaluated T.F. and B.P.'s claims of "good cause" for failing to visit or communicate with their child, focusing on a six-month period from January 1 to July 1, 2017, during which T.F. was believed to be not incarcerated, although the record suggests she may have been incarcerated until early 2017. Neither party challenged the court's determination of the abandonment period or argued that incarceration impacted their defenses.
Assessment of potential abandonment regarding T.F. and B.P.'s relationship with Allie is appropriate for the period between January 1 and July 1, 2017. The specific residence of T.F. during this timeframe remains unclear, but all reasonable inferences are made in her favor, as established in Oddsen v. Henry. T.F. was incarcerated in Marinette County and other locations, with her last known residence being in Appleton in June 2018, suggesting she lived over 100 miles from Madison during the relevant period. While expert testimony may not always be necessary to demonstrate the emotional impacts of trauma from a loved one's death, the circuit court determined that B.P.'s claimed inability to communicate with Allie, stemming from the deaths of his relatives, does not logically connect to his actions over two-and-a-half years later, indicating a departure from common human experience.
