Defense Wins: COA reverses summary judgment at grounds phase of TPR proceeding.
Sawyer County Health & Human Services v. D.K., 2025AP2832, 3/12/26, District III (ineligible for publication); case activity
The COA reversed the order terminating “Daniel’s” parental rights after summary judgment was granted at the grounds phase because genuine issues of material fact exist whether the County made reasonable efforts to provide services.
Sawyer County filed a petition to terminate Daniel’s and “Susan’s” parental rights (TPR) to “Gina” in 2023, which alleged that Gina had a continuing need of protection and services (CHIPS) as defined by Wis. Stat. § 48.415(2)(a). The circuit court held an evidentiary hearing regarding the County’s motion for summary judgment on the grounds for TPR.
Gina’s former caseworker testified that she was removed from Daniel and Susan’s care in 2018 after law enforcement found drugs in their home and within Gina’s reach. Gina eventually returned to Daniel and Susan’s care, and they were directed to participate in treatment for drug use and mental health. (¶ 4). The caseworker said Gina was removed again in 2020 due to reports that Daniel and Susan’s drug use was escalating and the County filed a permanency plan with conditions for Daniel’s reunification with Gina. The plan required Daniel to undergo drug and alcohol assessments, maintain all rules of probation, incur no criminal charges, demonstrate appropriate parenting, providing financial means to care for Gina, and participate in mental health treatment if necessary. The caseworker testified that Daniel and Susan did not maintain regular contact with the County, missed drug tests, and frequently tested positive for methamphetamine. (¶ 6). The caseworker, who stopped working for the County in 2022, said she believed Daniel and Susan failed to meet the conditions for reunification because of their drug use, trauma, and mental illness. (¶ 7).
Gina’s subsequent caseworker testified that Daniel and Susan fulfilled the conditions for reunification requiring them to sign all documents the County provided and updating the County with new contact information, but they did not complete AODA counseling or contact the County weekly. (¶ 9). The caseworker said Daniel and Susan did not cooperate with the County’s attempts to provide services because they rescheduled or canceled visits and sometimes refused to speak to the County. However, she said the County stopped providing services to Daniel and Susan in 2023 because it was seeking a TPR and it had three caseworkers on staff, who were “very, very strapped for attempting to get things done.” (¶ 10). The circuit court found no genuine issue of material fact that the County proved grounds for TPR. (¶ 11). Daniel and Susan’s parental rights were terminated at the dispositional hearing. (¶ 12).
Daniel argued on appeal that the County did not meet its burden to show there was no genuine issue of material fact whether the County made a reasonable effort to provide him with services necessary to meet the requirements of his permanency plan. (¶ 14).
As an initial matter, the COA rejected the County’s argument that the law of the case doctrine controlled because the order terminating Susan’s parental rights to Gina was affirmed on appeal. The Court noted that the only issue addressed in Susan’s appeal was whether the circuit court erroneously exercised its discretion during the dispositional phase and it did not decide whether the circuit court erred by granting summary judgment during the grounds phase. (¶ 18).
To terminate parental rights based on a child’s continuing need of protection and services, the County needed to prove by clear and convincing evidence that it made a reasonable effort to provide the services ordered by the court. Wis. Stat. § 48.215(2)(a)2.b. Viewing the evidence in the light most favorable to Daniel, the COA concluded that a genuine issue of material fact exists whether the County made a reasonable effort to provide Daniel with the court-ordered services needed to comply with the permanency plan. (¶ 21).
The COA explained that the County did not present evidence whether services were provided to Daniel from May 2023 to June 2024 and the caseworker testified that the pending TPR action obviated the County’s duty to make reasonable efforts to provide services; however, there is no such exception in the statute. (¶ 22). The COA also noted that the caseworker testified that the County did not provide services while she supervised his case because it had only three workers and was “strapped” to “get things done,” which is the type of “fact-intensive case” that is inappropriate for summary judgment: “We conclude that . . . a reasonable juror could have found that the County did not make reasonable efforts to provide Daniel with the necessary services.” (¶ 25).
The Court cautioned that summary judgment is ordinarily not appropriate in TPR cases based on the “fact-intensive” continuing CHIPS ground because determining parental unfitness generally requires resolving factual disputes regarding “parental conduct vis-a-vis the child.” (¶ 20).