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In re Termination of Parental Rights to M. J.

Court of Appeals of Wisconsin, District III

December 28, 2017

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,
v.
R. I., Respondent-Appellant.

         APPEAL from an order of the circuit court for Kewaunee County Cir. Ct. No. 2016TP7: KEITH A. MEHN, Judge. Affirmed.

          Before Stark, P. J., Hruz and Seidl, JJ. [1]

          STARK, P.J.

         ¶1 R.I. appeals an order terminating his parental rights to M.J., his biological daughter who is an Indian child.[2] 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.

         ¶2 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.

         BACKGROUND

         ¶3 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.

         ¶4 R.I. was incarcerated at the time of M.J.'s birth and was adjudicated M.J.'s father in November 2014.[3] 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.

         ¶5 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.

         ¶6 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.[4] R.I. contested the TPR petition.

         ¶7 The County eventually moved for partial summary judgment, alleging no genuine disputes of material fact existed on the elements of abandonment.[5] On R.I.'s stipulation, the circuit court entered an order for partial summary judgment on that ground.

         ¶8 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.

         ¶9 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.

         STANDARD OF REVIEW

         ¶10 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.[6] 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.

         ¶11 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 ...


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