COURT OF APPEALS
DATED AND FILED
October 7, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
IN COURT OF APPEALS
In re the
termination of parental rights to
from an order of the circuit court for
¶1 HIGGINBOTHAM, J. Tarik
T. appeals an order terminating his parental rights to Quincy C. based on a
petition brought by Nathan Y.,
¶2 Nathan Y. filed a petition for termination of Tarik’s
parental rights in April 2009, alleging abandonment as grounds for
termination. Nathan moved for partial
summary judgment as to grounds. Nathan submitted an affidavit from Lauren C.,
¶3 We review 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,
¶4 In a proceeding to terminate parental rights on abandonment
grounds, the petitioner must prove that the parent: (1) left the child with a relative or other
person; (2) knew or could have discovered the child’s whereabouts; and (3) failed
to visit or communicate with the child for a
period of six months or longer. See Wis. Stat. § 48.415(1)(a)3.;
¶5 On appeal, Tarik challenges only the court’s determination as
to grounds for termination. Tarik argues
that he was entitled to a trial on grounds because summary judgment is
inappropriate when the ground alleged is abandonment, citing Steven
V. v. Kelley H., 2004 WI 47, ¶36, 271 Wis. 2d 1, 678 N.W.2d 856. Tarik also argues that an issue of fact
exists concerning whether there was good cause for his acknowledged failure to
visit or contact
¶6 In Steven V., the supreme court
concluded that, when no material facts are in dispute and the applicable legal
standard has been satisfied, use of summary judgment procedure in the grounds
phase of a termination proceeding does not violate the parent’s right to a jury
trial or to procedural due process.
¶7 However, Steven V. makes clear that this
language does not establish a bright-line rule that summary judgment is always
inappropriate in abandonment cases.
First, Steven V. explained that its discussion of the use of summary
judgment procedure on grounds proven by documentary evidence versus those
proven by non-documentary evidence was not “mean[t] to imply that the general
categorization of statutory grounds in this and the preceding paragraph
represent a definitive statement about the propriety of summary judgment in any
¶8 In support of his motion for summary judgment, Nathan
submitted an affidavit from Lauren,
¶9 In response, Tarik submitted an affidavit in opposition to
summary judgment. Tarik avers that he
“did not have Lauren’s home address at any time while she has been in
¶10 As the parties acknowledge in briefs, the submissions demonstrate that Tarik had no contact with Quincy or Lauren from October 2007 to July 2008, a period of nine months. Nor does Tarik seriously dispute that he could have discovered the child’s whereabouts at this time, although he avers that he did not know Lauren’s home address until he received the petition in this case. The disputed issue, according to Tarik, is whether he had good cause not to contact Lauren and Quincy during this time period. Tarik argues that factual questions remain that are relevant to whether he had good cause not to contact Lauren and Quincy. In his brief-in-chief, Tarik argues:
Could Tarik T. have done more to see
¶11 We conclude that the submissions fail to raise an issue of
material fact concerning whether Tarik had good cause for failing to
communicate with Lauren or Quincy from October 2007 to July 2008. Tarik’s proposed reasons for failing to
contact Lauren and Quincy during this time are nothing more than speculation,
and are not supported by the summary judgment submissions. Accepting as true Tarik’s assertion as fact
that his communication with Quincy was controlled by Lauren, and that any gift
or communication to Quincy would have to go through Lauren, neither constitutes
good cause for failing to even attempt to contact Lauren about Quincy. If Tarik had reasons constituting good cause
for his failure to contact Lauren or Quincy, these reasons should have been
provided in his summary judgment submissions.
Thus, while summary judgment is ordinarily inappropriate in termination
of parental rights cases premised on a fact-intensive grounds for parental
unfitness such as abandonment, Bobby G., 301
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)(4).
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (2007-2008). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Nathan also alleged a second ground for termination, failure to assume parental responsibility under Wis. Stat. § 48.415(6), and moved for summary judgment on this ground as well. Having concluded that summary judgment was appropriate on abandonment grounds, the circuit court did not address whether Tarik had also failed to assume parental responsibility.
parties accept October 2007 as the starting date for this period of no contact.
Good cause arguably existed for Tarik not to have contacted Quincy and Lauren
up to October 2007 because the