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COURT OF APPEALS
DECISION
DATED AND FILED
November 26, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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In re the termination of parental rights to Lydia J. R.,
a person under the age of 18:
Tricia L. B.,
Petitioner-Respondent,
v.
Chad K. R.,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Grant County: michael
kirchman, Judge. Reversed and
cause remanded with directions.
¶1 VERGERONT, J. Chad K. R.
appeals the order terminating his parental rights to Lydia J. R., d/o/b January
2, 2002. He contends the circuit court
erroneously granted the guardian ad litem’s motion for partial summary judgment
on the ground of failure to assume parental responsibility under Wis. Stat. § 48.415(6). We conclude there are genuine issues of
material fact that entitle Chad
to a trial and therefore reverse.
BACKGROUND
¶2 Tricia L. B., the mother of Lydia,
filed this petition for termination of Chad’s parental rights in April
2007. The grounds alleged are abandonment
under Wis. Stat. § 48.415(1)
and failure to assume parental responsibility under § 48.415(6). The petition alleges that Chad had “failed to visit or
communicate with the child for more than one year and has failed to communicate
about the child with the petitioner, who has had custody and placement of the
child for more than one year.”
¶3 The guardian ad litem moved for partial summary judgment on both
grounds. Tricia’s accompanying affidavit
stated the following. She was Chad’s
girlfriend from 2001 until October 12, 2004.
She is Lydia’s
custodial parent and has lived with Lydia all her life. During the first part of Lydia’s life, Lydia
lived with both Tricia and Chad. Chad
has had no contact with Lydia
since October 12, 2004, and has never called Lydia at Tricia’s home. Tricia has never received any cards, letters,
presents, pictures, or other communication from Chad
to Lydia, and was never
contacted by anyone from social services regarding Chad’s
wish to see or otherwise contact Lydia. Tricia has not been served with any papers
saying Chad wants to see Lydia
or have contact with her. She receives
no child support from Chad,
only $93 a month in SSI.
¶4 Tricia’s affidavit further stated that on November 30, 2004,
the Grant County
court granted her a harassment injunction against Chad, which expired on November 30,
2006. Even after the expiration of the
injunction, Chad did not
contact her to see or communicate with Lydia, or for any other
purpose. There was a bail condition in Grant County
case no. 04-CF-157 that Chad
was not to have any direct contract with Tricia and that third-party contact
was allowed only on issues directly relating to Lydia,
but no person contacted her with any sort of communication to the effect that Chad wanted to see or communicate with Lydia. At sentencing in that case, which occurred on
February 10, 2006, Chad was placed on probation and a condition was that
he not have any contact with Tricia, but visitation was to be arranged through
social services or someone approved by social services until Chad and Tricia
could agree upon a mutual person to arrange visitation. Chad’s
probation was almost immediately revoked, but even when he was no longer under
that condition of probation, he did not contact Tricia to see or communicate
with Lydia
or “for any other purpose.”
¶5 Chad,
with appointed counsel, opposed the motion for partial summary judgment. He also filed an affidavit, which states as
follows. From the date of Lydia’s birth until he was incarcerated, he was Lydia’s
primary caretaker. Tricia worked long
hours and while she worked, and even when she was not working, he fed, bathed,
changed diapers, and otherwise nurtured Lydia and took primary
responsibility for her care. Lydia
received social security benefits because he applied for the benefits for her
and for himself due to his disability.
He has never stopped loving and caring for Lydia
and since his physical separation, he has maintained an interest in her well-being
and has regularly contacted his family members who have contact with Lydia’s mother or grandparents to “monitor [Lydia’s]
health and well-being.” Since his
separation from Lydia, when
he has been able to, he has forwarded sums of money to his mother to buy gifts
or clothing for Lydia.
¶6 The circuit court granted the motion for partial summary
judgment. With respect to failure to
assume parental responsibility, the court concluded that, while Chad’s affidavit established that he had a
substantial parental relationship with Lydia
while he lived with Tricia and Lydia,
in the two years and eleven months since then the affidavit did not show a
substantial parental relationship. With
respect to abandonment, the court concluded that Chad’s affidavit did not establish
any material dispute of fact.
¶7 After a dispositional hearing, the court determined that
termination of Chad’s
parental rights was in Lydia’s
best interests. The court ordered
termination with a finding that grounds for both abandonment and failure to
assume parental responsibility existed.
¶8 After Chad
filed a notice of intent to pursue post-disposition relief and a notice of
appeal, we remanded to the circuit court so that Chad could file a post-disposition
motion. Chad moved in the circuit court for
an order vacating the order terminating his parental rights and for a new trial
on the ground that his trial counsel had been ineffective. He asserted that trial counsel was
ineffective for failure to present any counter affidavits to the motion for
summary judgment “setting forth evidentiary facts to show there was a genuine
issue for trial on the abandonment claim.”
At an evidentiary hearing Chad
testified concerning letters that he wrote to Lydia
after he stopped living with her, telephone contacts with Tricia in which he
discussed Lydia and asked to
speak to her and was able to do so on one occasion in approximately March 2005,
and a visit with Lydia
in December 2005. He also testified
concerning his periods of incarceration after October 24, 2004, and the two-year
injunction Tricia obtained against him.
¶9 The circuit court granted Chad’s motion to vacate the order terminating
his parental rights on the grounds of abandonment and ordered a new trial. It determined that the telephone contact with
Lydia
in March 2005 and the in-person contact in December 2005 were not relevant to
the abandonment claim, which under Wis.
Stat. § 48.415(1)(a)3. requires that “the child [be] left … with any
person, the parent knows or could discover the whereabouts of the child and the
parent has failed to visit or communicate with the child for a period of 6
months or longer.” However, the court
concluded Chad’s testimony
was evidence of letters to Lydia
within six months of the filing of the petition. As for Chad’s
attorney’s knowledge of the letters, the court determined that in Chad’s
deposition, taken after his affidavit was submitted and before the hearing on
the partial summary judgment motion, he mentioned the letters and his attorney
should have brought this to the court’s attention in opposing the motion.
¶10 Although the court granted Chad’s motion, the order terminating
his parental rights on the ground of failure to assume parental responsibility
remained in effect. Chad filed a notice of appeal from
that order. We concluded that we had appellate
jurisdiction of the appeal, notwithstanding the circuit court’s order of a new
trial on the abandonment ground. We
explained in our order that the necessity of a new trial on the abandonment
ground was conditional in that it was not necessary unless something happened
on appeal to render the termination order infirm. We therefore ordered a stay of the new trial
on the abandonment ground pending this appeal.
This appeal concerns only the court’s partial summary judgment on the ground
of failure to assume parental responsibility.
DISCUSSION
¶11 Chad
contends on appeal that the circuit court erred in granting partial summary
judgment on the ground of failure to assume parental responsibility because
there are material issues of fact that entitle him to a trial. He emphasizes that the statutory language
requires that the parent “[has] not had a substantial parental
relationship with the child.” Wis. Stat. § 48.415(6)(a)
(emphasis added). He contends there is
no dispute that he had such a relationship with Lydia from the time she was
born until October 12, 2004, pointing out that the guardian ad litem conceded
that Chad did provide substantial care to Lydia, along with her grandparents,
in that time period. His affidavit shows,
he asserts, that he continued to be interested in her well-being, regularly had
family members to monitor her welfare, and provided some support through his
social security benefits.
¶12 The guardian ad litem concedes in response that for the first
two years and nine months of Lydia’s
life, Chad
did have a substantial parental relationship with her. However, the guardian ad litem contends that
the “few efforts” set forth in his affidavit during the next two years and
eleven months of her life do not, as a matter of law, “constitute the
assumption of parental responsibility” because they did not involve direct
contact and/or communication with the child.
¶13 In reply, Chad
asserts that, to the extent communication with his daughter is one of the
considerations under Wis. Stat. § 48.415(6),
the court’s decision vacating the judgment of termination on the abandonment
ground because of his evidence of communications with his daughter shows that
there are material issues of fact regarding his communication with his
daughter. Chad also replies that under § 48.415(6),
if a parent has had a substantial parental relationship with his child but then
no longer provides daily care, the parent’s expressions of concern and interest
in the child’s support, care, or well-being are sufficient to at least create a
material issue of fact whether the parent has “forfeited” a substantial
parental relationship. Chad emphasizes
again that § 48.415(6) contains the language “[has] not had a
substantial parental relationship” (emphasis added) and is not directed at “whether
that relationship now exists as defined in the statute or [whether] for some
period its nature had changed.” Chad
also asserts that the argument that a substantial parental relationship “is for
some reason forfeited may present a genuine issue of fact in this case,” but does
not show that Tricia is entitled to judgment as a matter of law.
¶14 This court reviews a circuit court’s grant of summary judgment
de novo, applying the same methodology as the circuit court. State v. Bobby G., 2007 WI 77, ¶36, 301
Wis. 2d 531,
734 N.W.2d 81. Summary judgment is
appropriate when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).
¶15 With respect to summary judgment in a proceeding for
termination of parental rights (TPR), the court in Bobby G. explains:
Partial
summary judgment at the grounds phase of a termination of parental rights
proceeding is permitted, although the court has also acknowledged that not all
termination of parental rights cases are suited for partial summary
judgment. The court has explained that
“[t]he grounds for unfitness most likely to form the basis of a successful
motion for partial summary judgment in a [termination of parental rights] case are
those that are sustainable on proof of court order or judgment of conviction,
the reliability of which is generally readily apparent and conceded.
The court has
cautioned that “[i]n many [termination of parental rights] cases, the
determination of parental unfitness will require the resolution of factual
disputes by a court or jury at the fact-finding hearing, because the alleged
grounds for unfitness involve the adjudication of parental conduct vis-à-vis
the child.” The court has further
explained that “summary judgment will ordinarily be inappropriate in
[termination of parental rights] cases premised on these fact-intensive grounds
for parental unfitness. The court has
identified Wis. Stat. § 48.415(6)
as a fact-intensive ground probably not suited for partial summary judgment,
but the court has not held that this ground could never form the basis for
partial summary judgment. The court has
instead stressed that “[t]he propriety of summary judgment is determined
case-by-case.”
Id. at ¶¶39-40 (footnotes omitted,
emphasis omitted).
¶16 In this case the analysis of whether summary judgment is
appropriate must begin with the interpretation of Wis. Stat. § 48.415(6), because that is the legal
standard against which the submissions are measured to determine if there are genuine
issues of material fact. This section
provides:
(6) Failure
to assume parental responsibility.
(a) Failure
to assume parental responsibility, which shall be established by proving that
the parent or the person or persons who may be the parent of the child have not
had a substantial parental relationship with the child.
(b) In this
subsection, “substantial parental relationship” means the acceptance and
exercise of significant responsibility for the daily supervision, education,
protection and care of the child. In evaluating whether the person has had a
substantial parental relationship with the child, the court may consider such
factors, including, but not limited to, whether the person has expressed
concern for or interest in the support, care or well-being of the child,
whether the person has neglected or refused to provide care or support for the
child and whether, with respect to a person who is or may be the father of the
child, the person has expressed concern for or interest in the support, care or
well-being of the mother during her pregnancy.
¶17 When we construe a statute we begin with the language of the
statute and give it its common, ordinary, and accepted meaning, except that
technical or specially defined words are given their technical or special
definitions. State ex rel. Kalal
v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. We interpret statutory language in
the context in which it is used, not in isolation but as part of a whole, in
relation to the language of surrounding or closely related statutes, and we
interpret it reasonably to avoid absurd or unreasonable results. Id., ¶46. We also consider the scope, context, and
purpose of the statute insofar as they are ascertainable from the text and
structure of the statute itself. See id., ¶48. If, employing
these principles, statutory language is ambiguous—that is, capable of being
understood by reasonably well-informed persons in two or more senses—then we
may employ sources extrinsic to the statutory text. Id., ¶¶47,
50. These extrinsic sources are
typically items of legislative history. Id., ¶50
¶18 Wisconsin Stat. § 48.415(6)(a)
requires proof that the parent “[has] not had a substantial parental
relationship.” The words “[has] … had” are
repeated in para. (b), which defines a substantial parental relationship and
factors the court may consider in determining whether the parent “has had a substantial parental
relationship with the child.” (Emphasis
added.) Chad’s
position is that this language means that the court must consider the early
years of Lydia’s
life when he was living with her, as well as the time period after he stopped
living with her.
¶19 The guardian ad litem does not explain why Chad’s proposed
interpretation of the statute is unreasonable, nor does the guardian ad litem
offer an alternative interpretation that is grounded in the language of the
statute. The interpretation of the
statute that is implicit in the guardian ad litem’s argument, as we understand
it, is that if a parent has not had a substantial parental relationship with
the child for some significant period of time before the petition, then it is
irrelevant whether the parent previously had a substantial parental
relationship with the child.
¶20 We conclude Chad’s
proposed interpretation of the statute is a reasonable one. With respect to the interpretation we
understand the guardian ad litem to be implicitly proposing, we have
significant questions. The guardian ad
litem does not explain why it is reasonable to read the statutory language to
permit disregarding evidence that the parent has had a substantial parental
relationship with the child at one time, nor is there an explanation of the
basis on which the court is to decide that a sufficient time has passed so that
that evidence can be disregarded. In the
absence of a developed argument on these points, we cannot conclude that the
guardian ad litem’s proposed construction is reasonable. Even if we were to assume it is reasonable,
we cannot conclude it is more reasonable than Chad’s.
¶21 Accordingly, based on the arguments presented to us, we
conclude that Chad is
correct that, in deciding whether the petitioner has proved that he “[has] not
had a substantial parental relationship” with Lydia under Wis. Stat. § 48.415(6), evidence of his relationship
with Lydia
both when he lived with her and after he stopped living with her is relevant.
¶22 We now turn to the evidence before the court, bearing in mind
that the ground of failure to assume parental responsibility under Wis. Stat. § 48.415(6) is fact-intensive
and one not ordinarily suited for summary judgment. Bobby G., 301 Wis. 2d 531, ¶40. We also keep in mind that the petitioner has
the burden of proving this ground is met by clear and convincing evidence. See
Wis. Stat. § 48.31(1). Although Chad’s
affidavit is brief and general, it does present evidence that he was providing
some financial support to Lydia,
sent money to his mother to buy gifts and clothing for her, and kept in touch
with people on how Lydia
was doing. Taking those averments
together with his averment that from Lydia’s birth until his incarceration he
was her primary caretaker and had primary responsibility for her care, we
conclude Chad is entitled to a jury trial on whether the petitioner has proved
by clear and convincing evidence that Chad “[has] not had a substantial
parental relationship” with Lydia. Section
48.415(6).
¶23 We also note that, at the time of the summary judgment motion,
Chad’s deposition, which was not then submitted to the court, referred to letters
he wrote to Lydia that were not mentioned in his affidavit. In addition, Chad’s
testimony at the post-disposition hearing added more details to the letters,
their timing, and his circumstances after he stopped living with Lydia. He also testified on phone calls to Tricia in
which he discussed Lydia and
asked to speak to her, one phone call in which he did speak to Lydia,
and an in-person visit. We conclude this
additional evidence is relevant to whether Chad “expressed concern for or
interest in the support or well-being of the child,” a factor that the fact
finder may take into account in deciding if the parent “has had a substantial
parental relationship with the child.” See Wis.
Stat. § 48.415(6). We
recognize this evidence was not brought to the court’s attention before it
ruled on the partial summary judgment motion. However, we refer to it as an illustration of
the reason why there is a particular need for the circuit court, in TPR cases
involving fact-intensive grounds such as § 48.415(6), to probe the
submissions offered on partial summary judgment to make sure there are no
disputed issues of fact. See Bobby G., 305 Wis. 2d 531, ¶¶4 n.5, 90-93.
CONCLUSION
¶24 We reverse the partial summary judgment entered under Wis. Stat. § 48.415(6) on the
ground that there are material issues of fact that entitle Chad to a trial. As a result, we reverse the order terminating
Chad’s
parental rights and remand for further proceedings consistent with this
opinion.
By the Court.—Order reversed and cause
remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.