In re the termination of parental rights to M. J., a person under the age of 18: Kewaunee County Department of Human Services, Petitioner-Respondent,
R. I., Respondent-Appellant.
from an order of the circuit court for Kewaunee County Cir.
Ct. No. 2016TP7: KEITH A. MEHN, Judge. Affirmed.
Stark, P. J., Hruz and Seidl, JJ. 
R.I. appeals an order terminating his parental rights to
M.J., his biological daughter who is an Indian
child. R.I. is not of Native American heritage.
During the grounds phase of this termination of parental
rights (TPR) action, the parties stipulated R.I. had
abandoned M.J. However, R.I. argued that prior to determining
if grounds existed to terminate his parental rights, the
circuit court was required to hold an evidentiary hearing.
R.I. asserted the hearing was necessary to determine the
likelihood of serious emotional or physical damage from his
continued custody of M.J. and if any active efforts were made
to prevent breakup of an Indian family, pursuant to 25 U.S.C.
§ 1912(f) and (d) of the Indian Child Welfare Act of
1978, 25 U.S.C. §§ 1901-1963 (ICWA), and WIS. STAT.
§ 48.028(4)(e)l. and 2. of the Wisconsin Indian Child
Welfare Act, WIS. STAT. § 48.028 (WICWA). The circuit
court granted partial summary judgment in favor of the
Kewaunee County Department of Human Services (the County)
after the court concluded the respective provisions of ICWA
and WICWA did not apply to R.I.
On appeal, R.I. contends the circuit court's grant of
partial summary judgment was improper because genuine issues
of material fact existed regarding damage to M.J. from
R.I.'s continued custody and whether active efforts were
made to prevent breakup of the Indian family as required by
ICWA and WICWA. We conclude 25 U.S.C. § 1912(f) and (d)
are inapplicable because R.I. never had custody of M.J.
See Adoptive Couple v. Baby Girl, 570 U.S.__, 133
S.Ct. 2552, 2560-63 (2013). We also reject R.I.'s
argument that WIS. STAT. § 48.028(4)(e)l. and 2. apply
to him regardless of his lack of custody and conclude WICWA
does not establish a higher level of protection for
R.I.'s parental rights than ICWA. Accordingly, we affirm
the TPR order.
M.J. was born in November 2010 to J.J., a member of the Lac
du Flambeau Band of Lake Superior Chippewa. M.J. was removed
from her mother's care in May 2013 pursuant to a
continuing need for protective services order. The order
provided that M.J. was subject to ICWA as an Indian child.
M.J. was placed with her uncle-J.J.'s step-brother and a
non-Indian-with whom M.J. and J.J. had been living since
August 2012. M.J.'s uncle was ultimately granted legal
custody of M.J. in 2015.
R.I. was incarcerated at the time of M.J.'s birth and was
adjudicated M.J.'s father in November 2014. The paternity
order specified that legal and physical custody of M.J. had
been held open due to M.J. residing in foster care. While in
prison, R.I. wrote M.J. several letters, sent her gifts, and
participated in life skills training and parenting courses.
After his release from prison in March 2015, R.I. moved to
Florida. R.I. contacted M.J.'s uncle and said he wanted
to send a care package to M.J. M.J.'s uncle provided R.I.
with his address, but he never received a package from R.I.
R.I. scheduled-but then cancelled-visits with M.J. in June
and July 2015. R.I. has never visited M.J. in person. R.I.
failed to communicate with M.J. in any way between July 2015
and May 2016.
J.J. died in May 2016. The County petitioned for termination
of R.I.'s parental rights to M.J. on December 20, 2016,
alleging grounds for unfitness existed due to abandonment and
failure to assume parental responsibility under WIS. Stat.
§ 48.415(1) and (6). The County additionally filed a
"Statement of Active Efforts" pursuant to ICWA and
WICWA. R.I. contested the TPR petition.
The County eventually moved for partial summary judgment,
alleging no genuine disputes of material fact existed on the
elements of abandonment. On R.I.'s stipulation, the circuit
court entered an order for partial summary judgment on that
The County also asserted the provisions of ICWA and WICWA
that required additional findings of fact-i.e., regarding the
likelihood of serious emotional or physical damage from
R.I's continued custody, and whether any active efforts
were made to prevent breakup of an Indian family-were
inapplicable because R.I. never had legal or physical custody
of M.J. R.I. argued the findings under ICWA and WICWA were
required regardless of his lack of custody or placement, and
he requested a bench trial on those issues.
The circuit court subsequently entered another order granting
partial summary judgment. It concluded the applicable
provisions under ICWA and WICWA were "nearly identical,
" and under the Supreme Court's decision in
Adoptive Couple, fact finding was unnecessary
because R.I. never had physical or legal custody of M.J.
After a dispositional hearing, the circuit court entered an
order terminating R.I.'s parental rights to M.J. R.I.
appeals the TPR order.
Summary judgment is available during the grounds phase of a
TPR action if the moving party establishes that there is no
genuine issue as to any material fact and that it is entitled
to judgment as a matter of law. Steven V. v. Kelley H.,
2004 WI 47, ¶6, 271 Wis.2d 1, 678 N.W.2d 856');">678 N.W.2d 856; WIS. STAT.
§ 802.08. We independently review a decision to grant or
deny summary judgment. Oneida Cty. DSS v. Nicole W.,
2007 WI 30, ¶8, 299 Wis.2d 637, 728 N.W.2d 652.
Whether partial summary judgment was proper here involves
statutory interpretation, which is a question of law that we
also independently review. Id., ¶9.
"Statutory interpretation begins with the language of
the statute. If the meaning of the words of a statute is
plain, we ordinarily stop our inquiry and apply the words
chosen by the legislature." Id., ¶\6
(citing State ex rel. Kalal v. Circuit Court for Dane
Cty.,2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d
110). We must interpret statutes "in the context in
which they are used, as part of ...