Steven V. v. Kelley H.

2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856 · Supreme Court of Wisconsin · April 28, 2004 · No. 02-2860

Summary

The Wisconsin Supreme Court held that partial summary judgment may be used during the unfitness phase of a termination-of-parental-rights proceeding when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court overruled the categorical prohibition on summary judgment in such proceedings and concluded that the procedure did not violate the parent's statutory jury-trial right or constitutional due process. The court also held that the circuit court was not required to advise a nonpetitioning party of the statutory right to a continuance to consult counsel about judicial substitution.

Holdings

  1. Partial summary judgment is available in the unfitness phase of a termination-of-parental-rights proceeding when the summary judgment requirements and the applicable standards under Wis. Stat. §§ 48.415 and 48.31 are satisfied.
  2. Partial summary judgment on parental unfitness does not violate the statutory right to a jury trial or procedural due process when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, taking into account the clear-and-convincing-evidence standard.
  3. The circuit court properly granted partial summary judgment on unfitness because the undisputed Brown County order established that Kelley had been denied physical placement and visitation for more than one year without modification.
  4. Wis. Stat. § 48.422(1) does not impose an affirmative duty on the circuit court to advise a party of the right under § 48.422(5) to a continuance to consult counsel concerning judicial substitution.

Questions Presented

  1. Whether partial summary judgment is available during the unfitness or grounds phase of a termination-of-parental-rights proceeding when the material facts supporting a statutory ground are undisputed.
  2. Whether use of partial summary judgment in the unfitness phase violates a parent's statutory right to a jury trial or constitutional right to procedural due process.
  3. Whether Wis. Stat. § 48.422 requires the circuit court to advise a nonpetitioning party of the right to a continuance to consult counsel concerning judicial substitution.
  4. Whether Kelley's explanations for failing to satisfy conditions for restoring visitation were relevant at the unfitness phase.

Disposition

affirmed

Cases Cited (14)

  • Steven V. v. Kelley H., 2003 WI App 10, 263 Wis. 2d 241, 663 N.W.2d 817(affirmed)
  • Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994)(overruled)
  • M.W. and I.W. v. Monroe County Dep't of Human Servs., 116 Wis. 2d 432, 342 N.W.2d 410 (1984)(limited)
  • Fredrick H., 2001 WI App 141, 246 Wis. 2d 215, 630 N.W.2d 734(overruled)
  • Burnett County Dep't of Soc. Servs. v. Kimberly M.W., 181 Wis. 2d 887, 512 N.W.2d 227 (Ct. App. 1994)(overruled)
  • Santosky v. Kramer, 455 U.S. 745 (1982)(followed)
  • Mathews v. Eldridge, 424 U.S. 319 (1976)(followed)
  • Sheboygan County DHHS v. Julie A.B., 2002 WI 95, 255 Wis. 2d 170, 648 N.W.2d 402(followed)
  • Brandon S.S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993)(followed)
  • Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768(followed)

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