C. K. v. K. L. ( 2022 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1289 Cir. Ct. No. 2020TP18
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE TERMINATION OF PARENTAL RIGHTS TO B. K.,
A PERSON UNDER THE AGE OF 18:
C. K. AND A. K.,
PETITIONERS-RESPONDENTS,
V.
K. L.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Portage County:
THOMAS B. EAGON, Judge. Affirmed.
No. 2022AP1289
¶1 FITZPATRICK, J.1 Kate appeals an order of the Portage County
Circuit Court terminating her parental rights to her daughter, Beth.2 The circuit
court granted partial summary judgment in favor of April and Charles—Beth’s
paternal grandparents (“the Grandparents”)—on the ground that, pursuant to WIS.
STAT. § 48.415(1), Kate abandoned Beth without good cause. Kate argues that
partial summary judgment should not have been granted because there are genuine
issues of material fact as to whether she had good cause for abandoning Beth. I
affirm.
BACKGROUND
¶2 There is no dispute as to the following material facts.
¶3 Kate is Beth’s biological mother. In 2013, Beth was taken away
from her parents and into protective custody at the age of four months. A circuit
court found that Beth was a child in need of protection and services due to neglect
by her parents and ordered that she be placed with the Grandparents. Beth has
resided with the Grandparents since that time. In February 2015, after both Kate
and Beth’s father failed to meet court-ordered conditions for Beth’s return, a court
appointed the Grandparents as Beth’s guardians. At that time, the court did not
impose any supervision requirements on Kate’s visits with Beth.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
Consistent with the parties’ briefing and pursuant to the policy underlying WIS. STAT.
2
§ 809.19(1)(g), I use the pseudonyms “Kate” for appellant, K.L., “Beth” for the minor, B.K.,
“Charles” for the respondent, C.K., and “April” for the respondent, A.K.
2
No. 2022AP1289
¶4 Approximately four months after the Grandparents were appointed
as guardians, Kate was arrested for discharging a firearm in the direction of a
person at her residence. Kate was intoxicated at the time. Kate was convicted of
recklessly endangering safety as a result of that incident. Unsurprisingly, the
guardianship court then modified the guardianship order to require that Kate’s
visits with Beth be supervised.
¶5 At first, Kate’s visits were supervised by Kate’s aunt. However,
after an incident in which the aunt permitted Kate to take Beth to a hotel for a
weekend in violation of the guardianship court order, the Grandparents refused to
allow the aunt to supervise any more visits. After this incident, April began
supervising Kate’s visits. At one point, the guardianship court authorized Kate’s
parents to provide supervision for Kate’s visits with Beth, but they stopped
supervising after their relationship with Kate became “strained.” April then
resumed supervising Kate’s visits with Beth. In October 2017, the guardianship
court granted Kate supervised visits with Beth twice per month for ninety minutes
each.
¶6 In December 2018, April supervised one of Kate’s visits with Beth
and Kate’s three other children. During the visit, April heard one of the children
say “you bit me,” and April determined that Kate had disciplined one of Kate’s
children other than Beth by biting that child on the neck. April reported the
incident to the children’s father, law enforcement, and Child Protective Services.
April did not notify Kate that she did so. In January 2019, after Kate was
informed that April had reported the incident, Kate filed a petition to terminate the
Grandparents’ guardianship of Beth. However, the court dismissed that petition
for failure to prosecute because Kate failed to appear for a final pretrial conference
3
No. 2022AP1289
and the trial. The court ordered that, as a result of her failure to appear, Kate was
required to pay the $1,500 outstanding fees incurred by the guardian ad litem.
¶7 In 2020, in an action separate from the guardianship, the
Grandparents filed a petition to terminate Kate’s parental rights to Beth. The
Grandparents asserted that Kate had abandoned Beth under WIS. STAT.
§ 48.415(1)(a)3.3 According to the petition, Kate failed to visit or communicate
with Beth without good cause between December 19, 2018 and December 19,
2019. In support of the Grandparents’ partial summary judgment motion, April
filed an affidavit asserting, among other things, that she contacted Kate at least
three times in the spring of 2019 to schedule a visit, but Kate refused to visit or
talk to Beth. In response to one such communication to Kate from April, Kate
sent the following text message to April:
I will be refiling [a petition in the guardianship]. Either
give me my daughter and get out of my life, or figure out a
way that you can keep her, or you keep her and you get out
of my life, and I will have a relationship with her when
she’s an adult and can understand the emotional abuse
you’ve put on her.
3
WISCONSIN STAT. § 48.415 provides in pertinent part:
(1) Abandonment.
(a) Abandonment … shall be established by proving any
of the following:
….
3. The child has been left by the parent 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.
Sec. 48.415(1)(a)3.
4
No. 2022AP1289
April’s affidavit also stated that Kate asked April for pictures of Beth in October
2019, but Kate did not ask to visit or talk to Beth in that communication. April
provided the requested pictures to Kate.
¶8 In her response concerning the Grandparents’ partial summary
judgment motion, Kate did not dispute that: she failed to visit or communicate
with Beth during the applicable time period; and April contacted her in the spring
of 2019 to schedule a visit.4 Kate does not dispute those facts on appeal. Instead,
Kate contended to the circuit court, and contends on appeal, that she had “good
cause” for failing to do so pursuant to WIS. STAT. § 48.415(1)(c).5
¶9 The circuit court granted the Grandparents’ motion for partial
summary judgment. The court determined that there was at least a six-month
period in which Kate failed to visit or communicate with Beth, and that failure was
without good cause. The court then held a dispositional hearing and entered an
order terminating Kate’s parental rights to Beth.6 Kate appeals the circuit court’s
order.
¶10 Additional material facts are discussed in the following discussion.
4
I note that Kate’s response in the circuit court explicitly declined to concede the ground
for abandonment. Nonetheless, Kate’s response, and affidavit, did not dispute that she failed to
visit or communicate with Beth from December 19, 2018, to December 19, 2019.
5
The text of the “good cause” defense under WIS. STAT. § 48.415(1)(c) is reproduced in
pertinent part later in this opinion.
6
Beth’s biological father agreed to the voluntary termination of his parental rights and is
not a party to this appeal.
5
No. 2022AP1289
DISCUSSION
¶11 On appeal, Kate argues that the circuit court erred in granting partial
summary judgment because there remain genuine issues of material fact regarding
her good cause defense. I begin by setting forth governing principles and this
court’s standard of review regarding termination of parental rights proceedings.
I. Governing Principles Regarding Termination of Parental Rights
and This Court’s Standard of Review.
¶12 Termination of parental rights proceedings involve two phases.
Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648
N.W.2d 402. In the first, or “grounds,” phase of the proceeding, the court
determines “whether grounds exist for the termination of parental rights.” Id.(citing WIS. STAT. § 48.424(1)). During this phase, “the petitioner must prove by
clear and convincing evidence that one or more of the statutorily enumerated
grounds for termination of parental rights exist.” Steven V. v. Kelley H., 2004 WI
47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856 (citing WIS. STAT. § 48.31(1)). If the
petitioner proves one or more grounds for termination by clear and convincing
evidence, “the court shall find the parent unfit.” Id., ¶25 (citing WIS. STAT.
§ 48.424(4)). In the second, or “dispositional,” phase the court must determine
“whether it is in the best interest of the child that the parent’s rights be
permanently extinguished.” Id., ¶27 (citing WIS. STAT. § 48.426(2)).
¶13 This appeal involves the circuit court’s grant of partial summary
judgment in favor of the Grandparents with respect to the ground for termination
of Kate’s parental rights to Beth. This court reviews a grant of partial summary
judgment independently, applying the same methodology as the circuit court.
L.L.N. v. Clauder, 209 Wis. 2d 674, 682, 563 N.W.2d 434 (1997). Summary
6
No. 2022AP1289
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2). “A factual issue is
‘genuine’ if the evidence is such that a reasonable jury could return a verdict in
favor of the nonmoving party.” Schmidt v. Northern States Power Co., 2007 WI
136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. “A ‘material fact’ is one that is ‘of
consequence to the merits of the litigation.’” Id. (citation omitted).
¶14 In determining whether to grant summary judgment, “a court first
examines the pleadings to determine whether a claim for relief is stated and
whether a material issue of fact is presented.” L.L.N., 209 Wis. 2d at 682. Here,
the parties do not dispute that the pleadings state a claim and present the existence
of factual issues.
¶15 A court “next considers the moving party’s affidavits or other proof
to determine whether the moving party has made a prima facie case for summary
judgment under [WIS. STAT.] § 802.08(2).” Id. at 683. As noted, Kate does not
dispute that the Grandparents have established that she did not visit or
communicate with Beth from December 19, 2018, to December 19, 2019. As a
result, the Grandparents have made a prima facie case for partial summary
judgment based on the abandonment ground set forth in WIS. STAT.
§ 48.415(1)(a)3.
¶16 Next, “the opposing party must show, by affidavit or other proof, the
existence of disputed material facts or undisputed material facts from which
reasonable alternative inferences may be drawn that are sufficient to entitle the
opposing party to a trial.” L.L.N., 209 Wis. 2d at 683. Here, Kate asserts that she
7
No. 2022AP1289
had good cause for failing to visit or communicate with Beth for more than six
months between December 19, 2018, and December 19, 2019, and a trial is
necessary on that issue.
¶17 Affidavits and other proof submitted by the parties are viewed in a
light most favorable to the party opposing summary judgment, and any doubts as
to the existence of a genuine issue of material fact are resolved against the moving
party. Id. at 684. Additionally, this court “draw[s] all reasonable inferences from
the evidence in the light most favorable to the non-moving party.” Pum v.
Wisconsin Physicians Serv. Ins. Corp., 2007 WI App 10, ¶6, 298 Wis. 2d 497,
727 N.W.2d 346.
¶18 Partial summary judgment can be granted in the grounds phase of a
termination of parental rights proceeding. Steven V., 271 Wis. 2d 1, ¶6. A court
may grant partial summary judgment during this phase if the moving party
establishes that “there is no genuine issue as to any material fact regarding the
asserted grounds for unfitness under WIS. STAT. § 48.415, and, taking into
consideration the heightened burden of proof specified in WIS. STAT. § 48.31(1)
and required by due process, the moving party is entitled to judgment as a matter
of law.” Id.; see WIS. STAT. § 802.08(2). Our supreme court has stated that “[t]he
propriety of summary judgment is determined case-by-case” and emphasized that
summary judgment procedures may be used for any statutory ground for
termination of parental rights. Steven V., 271 Wis. 2d 1, ¶37 n.4; see also State v.
Bobby G., 2007 WI 77, ¶40, 301 Wis. 2d 531, 734 N.W.2d 81.
II. The Circuit Court Properly Granted Partial Summary Judgment.
¶19 As noted, Kate argues on appeal that there are genuine issues of
material fact as to whether she has demonstrated, pursuant to WIS. STAT.
8
No. 2022AP1289
§ 48.415(1)(c), a “good cause” defense to the abandonment ground established by
the Grandparents. This statutory defense as advanced by Kate requires her to
prove the following by a preponderance of the evidence:
(c) Abandonment is not established under par. (a)
… 3. if the parent proves all of the following by a
preponderance of the evidence:
1. That the parent had good cause for having failed
to visit with the child throughout the time period specified
in par. (a) … 3.
2. That the parent had good cause for having failed
to communicate with the child throughout the time period
specified in par. (a) … 3.
3. If the parent proves good cause under subd. 2.
that one of the following occurred:
a. The parent communicated about the child with
the person or persons who had physical custody of the child
during the time period specified in par. (a) … 3.
b. The parent had good cause for having failed to
communicate about the child with the person or persons
who had physical custody of the child … throughout the
time period specified in par. (a) … 3.
Sec. 48.415(1)(c).7 Accordingly, in order to have a trial, it is Kate’s burden to
establish that there are genuine issues of material fact regarding each of the
following for a time period of more than six months from December 19, 2018, to
December 19, 2019: (1) Kate had good cause for having failed to visit with Beth;
and (2) Kate had good cause for having failed to communicate with Beth and for
having failed to communicate about Beth with the Grandparents.
7
Kate does not contend that Beth’s age or condition would have rendered Kate’s
communication with Beth meaningless. Accordingly, a portion of WIS. STAT. § 48.415(1)(c)3.
which concerns that statutory defense was removed from the statutory subpart quoted above.
9
No. 2022AP1289
¶20 The term “good cause” is not defined in this statute, but a standard
jury instruction regarding abandonment, WIS JI—CHILDREN 314, sets forth the
following factors pertinent to this situation which may aid in determining whether
a parent had good cause for failing to visit or communicate: (1) “whether [the
parent] had a reasonable opportunity to visit or communicate with [the child] or
communicate with [the person] who had physical custody of [the child]”;
(2) “attempts to contact [the child]”; (3) “whether person(s) with physical custody
of [the child] prevented or interfered with efforts by [the parent] to visit or
communicate with [the child]”; and (4) “any other factors beyond [the parent’s]
control which prevented or interfered with visitation or communication.”8
¶21 For the following reasons, I conclude that Kate has not demonstrated
a genuine dispute of material fact as to her good cause defense.9
8
In her brief-in-chief, rather than referring to WIS JI—CHILDREN 314, Kate refers to
WIS JI—CHILDREN 313 which concerns a statutory subpart not applicable in this matter.
However, that minor error is easily overlooked because Kate’s brief clearly intends to refer to the
applicable jury instruction.
9
The Grandparents assert in their response brief that, in her brief-in-chief, Kate relies on
portions of her testimony from the dispositional phase of the proceedings that occurred after the
circuit court granted partial summary judgment. In her reply brief, Kate refers to that assertion
from the Grandparents as “puzzling and false.” It is neither. Accordingly, I do not rely on the
dispositional hearing testimony because that hearing occurred after the circuit court decided the
partial summary judgment motion. See Super Valu Stores, Inc. v. D-Mart Food Stores, Inc.,
146 Wis. 2d 568, 573, 431 N.W.2d 721 (Ct. App. 1988) (stating that this court reviews summary
judgment motions “on the record as it existed when [the motions] were decided by the trial court,
not on a record expanded by the testimony at trial”). Counsel should not continue this practice.
In addition, Kate asserts in her reply brief—which I note has a different author than the author of
her brief-in-chief—that those portions of the dispositional hearing testimony referenced facts that
had already been established by Kate’s deposition testimony that occurred prior to the court’s
partial summary judgment ruling. That is not correct. Those portions of the deposition transcript
relied on by Kate, in an attempt to backfill on appeal her dispositional hearing testimony, refer to
events outside the time period in dispute or are so vague as to be of no use in the analysis.
(continued)
10
No. 2022AP1289
¶22 First, Kate argues that she had good cause for failing to visit or
communicate with Beth because of her subjective feelings about April’s
supervision of visits with Beth. Kate supports this argument with the following
statement from her affidavit: “I didn’t feel comfortable with [April] supervising
the visits. My mother was not a reliable supervisor. [April] no longer wanted
[Kate’s aunt] to supervise. I had no other options for supervision. I wanted to see
my daughter.” According to Kate’s argument on appeal, she was uncomfortable
with April’s supervision because April had reported Kate to the police and Child
Protective Services after the biting incident in December 2018, and Kate was
worried that April would file similar reports if April continued to supervise
visits.10
The Grandparents also assert that record citations to the testimony from the dispositional
hearing in Kate’s brief-in-chief are inaccurate. The Grandparents are correct. For the reasons
stated above, I do not consider Kate’s testimony from the dispositional hearing. Nonetheless, I
remind counsel who authored the brief-in-chief to provide accurate citations to the record. Forest
Cnty. Potawatomi Cmty. v. Township of Lincoln, 2008 WI App 156, ¶14 n.8, 314 Wis. 2d 363,
761 N.W.2d 31 (Arguments not supported by accurate citations to the record do not comply with
WIS. STAT. RULE 809.19(1)(e), and “this court may refuse to consider such arguments.”).
10
Kate supports her good cause arguments with her testimony from a deposition.
However, Kate does not mention her deposition testimony until her reply brief on appeal and did
not mention her deposition testimony in argument or briefing in the circuit court. Normally, this
court “do[es] not consider matters argued for the first time in a reply brief because that precludes
the respondent from being able to address those arguments.” Techworks, LLC v. Wille, 2009 WI
App 101, ¶28, 318 Wis. 2d 488, 770 N.W.2d 727. Kate’s failure to address that testimony in her
brief-in-chief may be unfair to the Grandparents because they did not have an opportunity to
respond to the specifics of that testimony. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis.
2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an appellant to
withhold an argument from its main brief and argue it in its reply brief because such conduct
would prevent any response from the opposing party.”). At any rate, most of the deposition
testimony of Kate that she relies on for this particular argument concerns events outside the
applicable time period of December 2018 to December 2019 and, for the rest, the bases for her
actions enunciated at Kate’s deposition are essentially the same as those already summarized for
this argument.
11
No. 2022AP1289
¶23 In response, the Grandparents argue that Kate’s argument is similar
to an argument rejected by this court in Brown County Human Services v. B.P.,
2019 WI App 18, 386 Wis. 2d 557, 927 N.W.2d 560. In that case, the Brown
County Human Services Department (“the Department”) petitioned to terminate
the parental rights of B.P. and T.F. on the ground that they abandoned their
daughter pursuant to WIS. STAT. § 48.415(1)(a)3. B.P., 386 Wis. 2d 557, ¶6. On
appeal, this court affirmed the circuit court’s grant of summary judgment as to
B.P., but reversed as to T.F.11 Id., ¶¶42, 45. B.P. argued on appeal that he had
good cause for failing to visit or communicate with his daughter because he had
mental health issues and “emotional strain” during the applicable time period. Id.,
¶43. This court explained that there was no genuine issue regarding these facts
because B.P. failed to demonstrate a causal connection between his mental health
issues and emotional strain and his failure to visit or communicate with his
daughter. Id., ¶45. Even if the facts were viewed “in a light most favorable to
B.P.,” this court concluded that “any inference or conclusion as to how these
issues affected his ability to visit or communicate with [his daughter] would be
based upon sheer speculation.” Id., ¶46.
¶24 Even when viewed in a light most favorable to her, Kate’s assertions
do not constitute a genuine issue of material fact as to Kate’s good cause argument
because no reasonable jury could return a verdict in Kate’s favor on this particular
issue. See id. Kate does not explain why a single report filed by April—which
Kate admits did not lead to “any further action” by the police or Child Protective
Services—was a reasonable basis to avoid visiting or attempting to visit Beth for
11
I address this court’s decision regarding T.F. later in this opinion.
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No. 2022AP1289
an entire year. See WIS JI—CHILDREN 314 n.2 (a parent raising a good cause
defense must prove that he or she had “good cause for having failed to visit …
with the child during the period in issue”). Also, Kate articulates no arguable
basis as to how her subjective feelings about April’s supervision of visits
prevented her from communicating with Beth for an entire year in ways that did
not involve supervised visits, such as calling or sending a letter. Moreover, Kate’s
argument does not raise a material issue of fact regarding her failure to
communicate with the Grandparents about Beth for an entire year, December 2018
to December 2019. See WIS. STAT. § 48.415(1)(c)3.b. Thus, because there is no
evidence that would permit a reasonable jury to return a verdict in Kate’s favor on
this portion of her good cause argument, and, among other things, her argument
would require a finder of fact to speculate, Kate has not shown a genuine issue of
fact that defeats summary judgment. See B.P., 386 Wis. 2d 557, ¶46; Schmidt,
305 Wis. 2d 538, ¶24 (“A factual issue is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict in favor of the nonmoving party.”).
¶25 Second, Kate argues that she had good cause for failing to visit or
communicate with Beth because April interfered with Kate’s ability to do so. The
evidentiary support Kate provides for this argument is reasonably summarized in
the following statement from her affidavit: “[April] has complete control over
access to my daughter and she is unreasonable in her decisions about access to my
daughter.”
¶26 However, even when viewed most favorably to Kate, the assertions
on which she relies do not demonstrate that April’s actions caused Kate’s failure
to visit or communicate with Beth during the applicable time period. See B.P.,
386 Wis. 2d 557, ¶45. Put another way, Kate does not identify any evidence that
April actually prevented her from visiting or communicating with Beth. See WIS.
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No. 2022AP1289
STAT. § 802.08(3) (“[T]he adverse party’s response, by affidavits or as otherwise
provided in this section, must set forth specific facts showing that there is a
genuine issue for trial.” (emphasis added)). Indeed, Kate does not dispute that
April reached out to her three times during the applicable time period to arrange a
visit with Beth. Kate does not dispute that she sent the following text message to
April in the spring of 2019:
I will be refiling [a petition in the guardianship]. Either
give me my daughter and get out of my life, or figure out a
way that you can keep her, or you keep her and you get out
of my life, and I will have a relationship with her when
she’s an adult and can understand the emotional abuse
you’ve put on her.
These facts demonstrate that April did not prevent Kate from visiting or
communicating with Beth but, rather, provided Kate with multiple opportunities to
visit or communicate with Beth. With respect to April’s actions, Kate does not
explain or point to any evidence to demonstrate that those actions completely
prevented Kate from visiting or communicating with Beth during this time period.
Moreover, Kate does not attempt to explain away her failure to communicate with
the Grandparents about Beth from December 2018 to December 2019 (the text
message just quoted and an October 2019 request for pictures of Beth cannot
reasonably be seen as such a “communication”). There is no basis to conclude
that Kate’s allegations about April’s purported “complete control” and
“unreasonable” decisions regarding visitation would permit a reasonable jury to
return a verdict in Kate’s favor, and there is no genuine issue of fact as to this
portion of Kate’s good cause defense. See B.P., 386 Wis. 2d 557, ¶46; see also
Schmidt, 305 Wis. 2d 538, ¶24.
¶27 Third, Kate alleges that she had good cause for failing to visit or
communicate with Beth during the applicable time period because she attempted
14
No. 2022AP1289
to terminate the Grandparents’ guardianship of Beth as it was her only option as a
person of purportedly limited resources. Even when viewed most favorably to
Kate, however, Kate’s attempt to obtain a termination of the guardianship does not
create a genuine issue of fact because no reasonable jury could return a verdict in
Kate’s favor on her good cause defense based on those facts. See B.P., 386 Wis.
2d 557, ¶46. Significantly, Kate does not explain how her actions in the
guardianship proceeding prevented or interfered with her ability to visit or
communicate with Beth (or communicate with the Grandparents about Beth).
Kate’s only discernible explanation regarding a causal connection is a vague
assertion that her actions in the guardianship proceedings are “relevant” to “factors
beyond [Kate’s] control which prevented or interfered with visitation or
communication.” Any possible inference or conclusion as to how these facts
affected Kate’s ability to visit or communicate with Beth for an entire year would
be based on “sheer speculation.” See id. Therefore, Kate’s actions in the
guardianship proceeding do not raise a genuine issue of material fact regarding her
good faith defense.12
¶28 Fourth, Kate relies on a portion of this court’s analysis in B.P. In
that case, T.F. argued that she had good cause for failing to visit with her daughter
because she testified that she was unable to obtain transportation to travel the over
100-mile distance between her residence and her daughter’s placement. Id., ¶35.
T.F. also testified that the Department wanted her to receive “services” before she
12
In her reply brief on appeal, and for the first time, Kate argues that the guardianship
court erroneously required Kate to pay outstanding guardian ad litem fees. I decline to consider
this argument because it is undeveloped in that the order complained of was entered in an action
separate from this case, and Kate did not appeal that decision in the separate guardianship action.
See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (holding that this
court may decline to address undeveloped arguments).
15
No. 2022AP1289
visited her daughter, but did not advise her of what those “services” entailed, and
the Department failed to arrange for those to be provided. Id. This court stated
that T.F.’s testimony created a genuine issue of material fact as to whether T.F.
had good cause for failing to visit her daughter. Id., ¶36.
¶29 Kate argues that the facts concerning her good cause defense are “far
more compelling” than the facts supporting T.F.’s good cause defense. I disagree.
As explained above, Kate has not shown a genuine issue of material fact that April
caused Kate to not visit or communicate with Beth, or that anyone caused Kate not
to communicate with the Grandparents about Beth, for an entire year and,
therefore, has not demonstrated that a jury could reasonably find that Kate’s
allegations about April’s actions constitute good cause. Also, Kate has not
explained how her inability to obtain a termination of the Grandparents’
guardianship of Beth prevented her from visiting or communicating with Beth.
Thus, this court’s holding regarding T.F.’s good cause defense in B.P. does not
alter the conclusion that Kate has failed to demonstrate a genuine issue of fact as
to her good cause defense.
¶30 Fifth, Kate argues that partial summary judgment should not have
been granted because the circuit court “weighed the evidence” in evaluating her
good cause defense. According to Kate, the circuit court “made its own
determination about whether the facts alleged amounted to good cause,” not only
because the court minimized Kate’s concerns about April’s supervision, but also
because the court’s final order failed to apply the proper standard for summary
judgment. This argument fails because this court’s review of the circuit court’s
partial summary judgment ruling is de novo. L.L.N., 209 Wis. 2d at 682. I am not
concluding that the circuit court erred in this regard but, even if it did, any such
error makes no difference. This court does not give any deference to the circuit
16
No. 2022AP1289
court’s reasons for granting or denying summary judgment and must
independently decide whether the evidence presented by the parties demonstrates a
“genuine issue as to any material fact” and whether “the moving party is entitled
to a judgment as a matter of law.” WIS. STAT. § 802.08(2); Hall v. Turtle Lake
Lions Club, 146 Wis. 2d 486, 487, 431 N.W.2d 696 (Ct. App. 1988) (“On review
of a summary judgment, the court of appeals applies the same methodology as the
trial court and no deference is paid to the decision of the trial court.”). Thus, this
argument does not affect the conclusion that partial summary judgment was proper
in these circumstances.
CONCLUSION
¶31 For the foregoing reasons, the order of the circuit court is affirmed.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
17