Brown County Department of Health and Human Services v. T. R.

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.
January 20, 2023
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. 2022AP1094 Cir. Ct. No. 2021TP18
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN RE THE TERMINATION OF PARENTAL RIGHTS TO A. P.,
A PERSON UNDER THE AGE OF 18:
BROWN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
T. R.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.
No. 2022AP1094
¶1 GILL, J.1 Talia appeals an order involuntarily terminating her
parental rights to her daughter, Ashley.2 During the grounds phase of the
termination of parental rights (TPR) proceedings, the Brown County Department
of Health and Human Services filed a motion for partial summary judgment on the
three-month abandonment ground. The circuit court granted the County’s motion.
Talia argues that the partial summary judgment motion was untimely filed and
surpassed the eight-month time period prescribed in WIS. STAT. § 802.08(1). In
response, the County argues that the motion was filed pursuant to WIS. STAT.
§ 48.297(1)-(2) and, as such, could be filed at any time prior to trial.
¶2 We conclude that WIS. STAT. § 48.297(2) governs the timing of the
motion. As a result, we reject Talia’s arguments and affirm the court’s order
terminating Talia’s parental rights.3
BACKGROUND
¶3 Ashley was born to Talia on June 2, 2014. On September 26, 2014,
Ashley was adjudicated to be a child in need of protection or services (CHIPS) due
to Talia’s incarcerated status, and she was placed outside of Talia’s home. Since
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reading, we refer to the appellant and her child in this confidential matter
using pseudonyms, rather than their initials.
3
Cases appealed under WIS. STAT. RULE 809.107 are “given preference and shall be
taken in an order that ensures that a decision is issued within 30 days after the filing of the
appellant’s reply.” See RULE 809.107(6)(e). Conflicts in this court’s calendar have resulted in a
delay. It is therefore necessary for this court to sua sponte extend the deadline for a decision in
this case. See WIS. STAT. RULE 809.82(2)(a); Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680,
694, 530 N.W.2d 34 (Ct. App. 1995). Accordingly, we extend our deadline to the date this
decision is issued.
2
No. 2022AP1094
that time, Ashley has not been returned to Talia’s care and has resided in
out-of-home care. In March 2021, the County filed a petition to terminate Talia’s
parental rights to Ashley on the grounds that Talia had abandoned Talia for
three-months, six-months, continuing CHIPS, and Talia’s failure to assume
parental responsibility for Ashley.4
¶4 During Talia’s initial appearance in June 2021, Talia contested the
petition and she requested a jury trial. After multiple status conferences and
multiple instances where the circuit court rescheduled the trial dates—due
primarily to outstanding discovery owed by Talia—the court set the matter for a
trial in December 2021. On December 6, 2021, the County filed a motion for
partial summary judgment. The motion was based on the three-month
abandonment ground under WIS. STAT. § 48.415(1)(a)2.
¶5 In December 2021, the circuit court held another status conference.
At this hearing, the County advised the court that it had filed a prior-acts motion,
exhibit and witness lists for trial and a partial summary judgment motion on the
three-month abandonment ground. The County further indicated that it was
waiting for discovery responses from Talia and asked the court to find good cause
to adjourn the hearing. Talia’s counsel confirmed that there was outstanding
discovery and did not object to adjournment. The court granted the request for an
adjournment.
4
The County also filed a petition to terminate the parental rights of Ashley’s biological
father, but because his rights are not implicated in this appeal, we will not discuss him in any
substantive fashion.
3
No. 2022AP1094
¶6 A hearing on the County’s partial summary judgment motion was
held on December 15, 2021. The circuit court heard arguments from both parties
on the County’s partial summary judgment motion and, thereafter, granted the
County’s motion and found Talia unfit under WIS. STAT. § 48.424(4).
¶7 Because grounds for a TPR had been established and a jury trial was
no longer necessary, the circuit court held a dispositional hearing in February
2022. At the conclusion of the hearing, the court ordered Talia’s parental rights to
be terminated.
¶8 In July 2022, Talia filed a motion “to deny summary judgment
motion and vacate the order terminating parental rights,” arguing that the County’s
motion for partial summary judgment was untimely under WIS. STAT. § 802.08(1)
and thus was improperly granted. In August 2022, the circuit court held a hearing
on Talia’s motion and heard arguments from both parties. After further briefing
from the parties, the court issued a written decision denying Talia’s motion,
concluding that WIS. STAT. § 48.297(2) governed the timing of the filing of the
motion for partial summary judgment; thus, the motion was timely filed. Talia
now appeals.5
DISCUSSION
¶9 This matter involves a question of statutory interpretation. Statutory
interpretation is a question of law that this court reviews de novo. St. Croix Cnty.
5
Talia challenges only the timing of the County’s motion for partial summary judgment.
Talia does not argue that the motion should have been denied due to any genuine issues of
material fact or due to the County not being entitled to judgment as a matter of law under WIS.
STAT. § 48.424(4). Therefore, we will not address the substance of the motion for partial
summary judgment.
4
No. 2022AP1094
Dep’t of Health & Hum. Servs. v. Michael D., 2016 WI 35, ¶15, 368 Wis. 2d 170,
880 N.W.2d 107. “[S]tatutory interpretation ‘begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted).
¶10 Within the civil procedure code, WIS. STAT. § 802.08(1) allows a
party to “within 8 months of the filing of a summons and complaint … move for
summary judgment on any claim.” Sec. 802.08(1). Within the Children’s Code,
WIS. STAT. § 48.297(1)-(2) allows for “[a]ny motion which is capable of
determination without trial of the general issue [to] be made before trial” and
“[o]ther motions capable of determination without trial may be brought any time
before trial.” Sec. 48.297(1)-(2).
¶11 Talia argues that the County’s untimely filing of its motion for
partial summary judgment effectively took away her statutory right to a trial. In
particular, Talia argues that the County’s motion was required to be filed in
accordance with the eight-month deadline specified in WIS. STAT. § 802.08(1),
found in Wisconsin’s civil procedure code, see WIS. STAT. chs. 801 to 847. Talia
acknowledges the existence of WIS. STAT. § 48.297 but she argues that WIS. STAT.
chs. 48 and 802 conflict as they relate to motion practice. She contends that
§ 48.297(1) and (2) refer to the procedures for “motions” generally, whereas
§ 802.08(1) specifically discusses the mechanics of a summary judgment motion.
Talia therefore argues that § 802.08(1)—the allegedly more detailed statutory
provision explicitly discussing summary judgment—must govern. Talia further
argues that the County made no request to enlarge the time period to file its
summary judgment motion under § 802.08(1), and failed to show reasonable
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No. 2022AP1094
grounds for noncompliance or excusable neglect to justify its failure to timely file
the motion.
¶12 The County conversely asserts that WIS. STAT. § 48.297(1)-(2)
governed the timing of its partial summary judgment motion, not WIS. STAT.
§ 802.08(1). We agree that based on the language of § 48.297(2), that statute
governs and the motion for partial summary judgment was timely filed and thus
appropriate for consideration by the circuit court. See Barron Cnty. Dep’t of
Health & Hum. Servs. v. M.S., No. 2020AP1257, unpublished slip op., ¶13 n.4
(WI App Dec. 17, 2020) (noting, but not concluding, that § 48.297 might relate to
the time period in which a summary judgment motion can be brought).6 This
conclusion is further supported by WIS. STAT. § 801.01(2), which states 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[.]” Sec. 801.01(2) (emphasis added). Because the Children’s Code
provides a different procedure under § 48.297(2) for the timeliness of dispositive
motions, that statute governs the timeliness of summary judgment motions in TPR
proceedings. See N.Q. v. Milwaukee Cnty. Dep’t of Soc. Servs., 162 Wis. 2d 607,
612, 470 N.W.2d 1 (Ct. App. 1991). Accordingly, the County timely filed the
motion for partial summary judgment prior to trial, as allowed by § 48.297(2), and
the court did not err in considering the motion.
¶13 Although Talia acknowledges that there is no case law addressing
the interplay between the two statutes, she argues that prior case law has
6
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
6
No. 2022AP1094
established that summary judgment proceedings in TPR cases are subject to WIS.
STAT. § 802.08(1). Talia points to Steven V. v. Kelly H., 2004 WI 47, 271 Wis. 2d
1, 678 N.W.2d 856, as being instructive. There, our supreme court stated:
The jury trial right, however, is entirely statutory, not
mandated by constitutional due process, and is therefore
generally subject to the provisions of the civil procedure
code, including the summary judgment statute, WIS. STAT.
§ 802.08, unless the TPR statutes provide otherwise. See
WIS. STAT. § 801.01(2). The TPR statutes do not provide
otherwise, either explicitly or implicitly.
Steven V., 271 Wis. 2d 1, ¶4.
¶14 Talia’s reliance on Steven V. is misplaced. The issue in Steven V.
concerned “specifically whether the use of summary judgment procedure under
WIS. STAT. § 802.08” during the grounds phase of a TPR case “violates the
parent’s rights under the TPR statutes or procedural due process.” Steven V., 271
Wis. 2d 1, ¶28. While Steven V. held that partial summary judgment is
permissible in TPR proceedings, it did not address the timing of when a summary
judgment motion must be filed. In fact, as noted above, Steven V. acknowledged
that the civil procedure statutes apply in TPR cases only if another statute does not
prescribe a different procedure. Id., ¶32; see also N.Q., 162 Wis. 2d at 612 (“The
Children’s Code, [WIS. STAT.] ch. 48, is of statutory origin, and thus, is controlled
by the [c]ode of [c]ivil [p]rocedure unless a specific statute within the Children’s
Code requires a different procedure.”).
¶15 Unlike in Steven V., where the circuit court concluded that the civil
procedure code governed the availability of a summary judgment motion in a TPR
case based upon the Children’s Code’s silence on that issue, see Steven V., 271
Wis. 2d 1, ¶4, in the case at hand, there is a separate statute in the Children’s Code
7
No. 2022AP1094
relating to the timing of a partial summary judgment motion in a TPR matter—
namely WIS. STAT. § 48.297(2). While the Children’s Code does not specifically
mention summary judgment motions, it does make specific reference to motions
that are “capable of determination without trial.” Sec. 48.297(2). Summary
judgment motions clearly fall within this category of motion, and the plain
language of § 48.297(1)-(2) reflects the goal of a summary-judgment-type
motion—i.e., to avoid an unnecessary trial. See Strasser v. Transtech Mobile
Fleet Serv., Inc., 2000 WI 87, ¶28, 236 Wis. 2d 435, 613 N.W.2d 142 (“The
purpose of summary judgment is to determine whether a controversy can be
resolved without a trial.”).
¶16 Notwithstanding the above, even if WIS. STAT. § 48.297 was not the
controlling statute, the circuit court could rationally exercise its discretion by
allowing the County to file the partial summary judgment motion after the WIS.
STAT. § 802.08 statutory deadline. “Wisconsin circuit courts have discretion to
control their dockets.” Hefty v. Strickhouser, 2008 WI 96, ¶31, 312 Wis. 2d 530,
752 N.W.2d 820. Courts also have discretion to depart from statutory summary
judgment deadlines. See Lentz v. Young, 195 Wis. 2d 457, 465, 536 N.W.2d 451(Ct. App. 1995), overruled on other grounds by Maple Grove Country Club Inc.
v. Maple Grove Ests. Sanitary Dist., 2019 WI 43, ¶¶46-48, 386 Wis. 2d 425, 926
N.W.2d 184 (explaining that the filing of a summary judgment motion within “the
eight-month deadline is not an inflexible rule that the [circuit] courts must blindly
apply”). A court is not required to explain its reasoning on the record for
departing from statutory deadlines for summary judgment motions. See Hefty,
312 Wis. 2d 530, ¶54. A discretionary decision of a court will be upheld as long
as the court’s exercise of discretion was not erroneous. Horizon Bank, Nat’l
Ass’n v. Marshalls Point Retreat LLC, 2018 WI 19, ¶29, 380 Wis. 2d 60, 908
8
No. 2022AP1094
N.W.2d 797. “[T]he exercise of sound judicial discretion by the [circuit] court and
its determinations will not be disturbed unless rights of the parties have been
prejudiced.” Alexander v. Riegert, 141 Wis. 2d 294, 298, 414 N.W.2d 636(1987).
¶17 If the circuit court had found WIS. STAT. § 802.08 applied here, there
was no requirement for the court to explain its reasoning for departing from that
statute’s deadline for filing a summary judgment motion. See Hefty, 312 Wis. 2d
530, ¶54. The court did not erroneously exercise its discretion in extending the
time for the County to file the partial summary judgment motion because doing so
was in the interest of judicial economy as the court was able to avoid the expense
and time of trying the grounds issues when there were no genuine issues of
material fact present. Additionally, Talia was not prejudiced and had adequate
time to prepare for the motion. As such, we conclude the court’s grant of the
partial summary judgment on the three-month abandonment ground was
appropriate, and we therefore affirm.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
9