J. H. v. J. L. B.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 3, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP85 Cir. Ct. No. 2023TP17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE TERMINATION OF PARENTAL RIGHTS TO R.J.H.,
A PERSON UNDER THE AGE OF 18:

J.H.,

PETITIONER-RESPONDENT,

V.

J.L.B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for La Crosse County:
GLORIA L. DOYLE, Judge. Reversed and cause remanded with directions.
No. 2025AP85

¶1 GRAHAM, J.1 J.L.B. appeals a dispositional order, entered at the
conclusion of this termination of parental rights (TPR) proceeding, that terminated
her rights with respect to her younger son, R.H. In addition to challenging the
circuit court’s exercise of discretion at the dispositional phase, J.L.B. also
challenges the court’s grant of partial summary judgment at the grounds phase of
the proceeding.

¶2 I conclude that there are genuine issues of fact as to the alleged
grounds for termination and, therefore, that the circuit court erred by granting
partial summary judgment. I reverse the summary judgment order, and because
there has not yet been a finding of unfitness, I also reverse the dispositional order
terminating J.L.B.’s parental rights. I remand the matter for a fact-finding hearing
in accordance with WIS. STAT. § 48.424 and other proceedings consistent with
State v. Bobby G., 2007 WI 77, ¶6, 301 Wis. 2d 531, 734 N.W.2d 81.

BACKGROUND

¶3 This TPR proceeding began in December 2023, when R.H.’s
biological father, J.H., filed a petition to terminate J.L.B.’s parental rights.

¶4 A TPR case proceeds in two phases: the grounds phase and the
dispositional phase. Steven V. v. Kelley H., 2004 WI 47, ¶¶24, 27, 271 Wis. 2d 1,
678 N.W.2d 856. WISCONSIN STAT. § 48.415 identifies statutory grounds of
parental unfitness, and during the grounds phase, if the petitioner proves the
existence of one or more grounds by clear and convincing evidence, “the court

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24)
and is given preference under WIS. STAT. § 809.107. All references to the Wisconsin Statutes are
to the 2023-24 version.

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shall find the parent unfit.” Steven V., 271 Wis. 2d 1, ¶¶24-25 (citing WIS. STAT.
§§ 48.31(1), 48.424(4)). The case then proceeds to the dispositional phase, in
which the court decides whether it is in the best interest of the child that the
parent’s rights be terminated. Steven V., 271 Wis. 2d 1, ¶27; WIS. STAT.
§ 48.426(2).

¶5 Here, J.H.’s petition alleged two grounds to terminate J.L.B.’s
parental rights: abandonment under WIS. STAT. § 48.415(1)(a)3. and failure to
assume parental responsibility under § 48.415(6). J.L.B. contested the petition,
and both parents were deposed.

¶6 J.H. then filed a motion for partial summary judgment on grounds.
In his opening brief, J.H. focused his argument on abandonment. Specifically,
J.H. argued that J.L.B. abandoned R.H. by failing to visit or communicate with
him since their last supervised visit, which occurred on September 18, 2022. In
his reply brief, J.H. also argued that J.L.B. failed to assume parental
responsibility.2 J.L.B. opposed the motion for summary judgment, and R.H.’s
guardian ad litem filed a letter in support of the motion.

2
J.H.’s summary judgment briefing includes citations to certain documents that were
apparently filed in the paternity case and in J.L.B.’s criminal case, but J.H. did not file copies of
those documents along with the summary judgment materials that were filed in the electronic
record for this case. There are at least two problems with this approach. First, a circuit court’s
decision on summary judgment should generally be limited to the documents filed in the case.
See WIS. STAT. § 802.08(2) (providing that summary judgment should be granted “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law”). Second, if a document is not filed in the
circuit court’s electronic record, it will not be part of the record on appeal. This presents a
problem for appellate review by this court—even if it were appropriate to take judicial notice of
documents filed in the other pending matters, the court of appeals does not have access to the
electronic docket used by circuit courts. Therefore, if J.H. had not filed some of the documents
that he intended as support for his motion as exhibits during the dispositional hearing, I could not
access those documents as part of my review of this appeal.

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¶7 The following undisputed facts are taken from the summary
judgment materials, and primarily from J.L.B.’s deposition testimony.

¶8 R.H. was born in 2021. J.L.B. had been using drugs during the
pregnancy, and there were drugs in R.H.’s system when he was born, requiring
treatment in the neonatal intensive care unit. J.H. was adjudicated R.H.’s father
several months later, and J.H. and J.L.B. were awarded joint legal custody, with
primary placement to J.H. J.L.B. was R.H.’s primary caregiver for the first ten
months of his life.

¶9 When R.H. was ten months old, he “overdosed” on an undetermined
substance while in J.L.B.’s care. J.L.B. was charged with criminal neglect, and
the conditions of the criminal bond initially prevented J.L.B. from having contact
with R.H. The bond was later modified to allow contact as ordered by the family
court commissioner.

¶10 In July 2022, the court commissioner entered an order that allowed
J.L.B. to have visitation with R.H., subject to certain conditions. Specifically,
J.L.B. was required to submit to testing for opiates and amphetamines, and she
would be allowed to have supervised visits with R.H. if the tests results were
negative. J.L.B. signed a stipulation in which she agreed to these terms as a
condition of continued visitation with R.H.

¶11 J.L.B. had visits with R.H. through September 2022, even though
she had not submitted to drug testing. However, the agency that had been
administering the supervised visits eventually determined that J.L.B. was not
compliant with the conditions of visitation. The last time that J.L.B. saw R.H. in
person was during the last supervised visit, which occurred on September 18,
2022. J.L.B. attributed her reasons for not submitting to drug testing to a

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“misunderstanding.” However, she did not take any steps to resume the
supervised visits after they ceased, and she never took any drug tests as ordered by
the court commissioner.

¶12 J.L.B. attempted to contact J.H. about R.H. after the supervised visits
ceased, but J.H. often did not respond to her messages. J.H. eventually blocked
J.L.B.’s phone number.

¶13 J.L.B. was able to obtain some information about R.H. from Jenny,
the grandmother of J.L.B.’s older son, who is R.H.’s half-brother. J.L.B.’s older
son lived with Jenny and her husband, and Jenny often cared for R.H. while J.H.
was at work.

¶14 On some occasions when J.L.B.’s older son and R.H. were in
Jenny’s care, the older son would initiate a video call with J.L.B. J.L.B. indicated
that one of the last times she saw R.H. was on December 23, 2023, when her older
son initiated a video call with J.L.B., and R.H. was present in the frame and
“participating” in the call. J.L.B. testified that this type of video contact occurred
multiple times when R.H. was in Jenny’s care. J.L.B.’s deposition testimony on
this point seemed to come as a surprise to J.H.—in his own deposition, J.H.
testified that he had not been aware of these contacts prior to hearing her
deposition testimony, and that he had stopped asking Jenny to babysit R.H. for
other reasons in early 2024.

¶15 In her deposition, J.L.B. acknowledged that she does not pay child
support or daycare costs, and that she does not provide food, care items, or
insurance for R.H. J.L.B. gave Jenny $40 for R.H.’s care on one occasion, and
clothing for R.H. on a couple of occasions.

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No. 2025AP85

¶16 The circuit court issued an oral ruling in which it granted partial
summary judgment, determining that there was no genuine dispute of fact
regarding abandonment and failure to assume parental responsibility. The court
acknowledged that summary judgment in a TPR proceeding is “disfavored” and
“rare,” but that it was warranted here because J.L.B. “had nothing to say in [her]
defense that would create a question with regard to the facts.” The court focused
on the fact that J.L.B. had not visited R.H. for nearly two years, since the last
supervised visit in September 2022. As the court explained, the placement order
allowed visitation if J.L.B. was compliant with drug testing, but J.L.B. had not
taken any steps towards compliance. The court did not address J.L.B.’s deposition
testimony about the video calls in its ruling.

¶17 The circuit court scheduled a dispositional hearing. The guardian ad
litem submitted a report that provided an analysis of the factors the court was to
consider under WIS. STAT. § 48.426, and the parties presented evidence and
argument at the hearing. Ultimately, the court found that it was in R.H.’s best
interest that J.L.B.’s parental rights be terminated, and it entered an order
terminating J.L.B.’s parental rights to R.H.

DISCUSSION

¶18 J.L.B. challenges the circuit court’s grant of partial summary
judgment in the grounds phase, and she also challenges the court’s exercise of
discretion at the dispositional phase. I begin with the arguments about summary
judgment.

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No. 2025AP85

I. Grounds

¶19 The determination of whether there are grounds for finding a parent
unfit is generally made by a jury, if one is requested. However, the statutory
summary judgment procedure is available during the grounds phase of a TPR
proceeding. Steven V., 271 Wis. 2d 1, ¶¶32-35. Partial summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment [on grounds] as a matter of law.” WIS. STAT. § 802.08(2). The
Steven V. court nonetheless cautioned that summary judgment would “ordinarily
be inappropriate in TPR cases premised on … fact-intensive grounds for parental
unfitness” such as abandonment and failure to assume parental responsibility.
Steven V., 271 Wis. 2d 1, ¶36.

¶20 The purpose of summary judgment is to avoid trials when there is
nothing to try. Tews v. NHI, LLC, 2010 WI 137, ¶42, 330 Wis. 2d 389, 793
N.W.2d 860. To that end, courts do not resolve issues of fact on summary
judgment—they instead decide whether there are genuine issues of material fact
that preclude a grant of judgment as a matter of law. Brown County v. B.P., 2019
WI App 18, ¶34, 386 Wis. 2d 557, 927 N.W.2d 560. In so doing, the court must
construe the facts in the nonmoving party’s favor. Id.

¶21 In a TPR proceeding, a petitioner moving for summary judgment has
the burden of showing that, taking into account the heightened burden of proof
that applies at the grounds phase, there are no genuine factual disputes regarding
the asserted grounds for unfitness. Id. When evaluating a summary judgment
request, the court first “examine[s] the [petitioner’s] submissions to determine

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whether they establish a prima facie case for [partial] summary judgment.” Id.,
¶33. If the petitioner makes such a showing, the court then “turn[s] to the
opposing party’s submission to determine whether they show material facts are in
dispute such that the opposing party is entitled to a trial.” Id. On appeal, I review
a grant of summary judgment de novo, applying the same methodology as the
circuit court. Id., ¶34.

A. Abandonment

¶22 Here, J.H.’s argument for summary judgment centered on WIS.
STAT. § 48.415(1)(a)3., which addresses abandonment. For abandonment, the
focus is “on the parent’s contact, or lack of contact, with the child.” Carla B. v.
Timothy N., 228 Wis. 2d 695, 704-05, 598 N.W.2d 924 (Ct. App. 1999) (citation
omitted). “The purpose of [the abandonment statute] is to permit a finding of
abandonment where there has been incidental or no contact for specified periods
of time.” Id. at 705 (citation omitted).

¶23 To make a prima facie case under WIS. STAT. § 48.415(1)(a)3., a
petitioner must show: (1) that the child was left with a relative or other person;
(2) that the parent contesting the termination of rights knew or could have
discovered the child’s whereabouts; and (3) that the parent failed to visit or
communicate with the child for a period of six months or longer. See
§ 48.415(1)(a)3.; see also WIS JI—CHILDREN 314. If those elements are satisfied,
the parent has an affirmative defense if the parent can show “good cause,” as
defined in § 48.415(1)(c), for having failed to visit and communicate with the
child throughout that period. See § 48.415(1)(c); see also WIS JI—CHILDREN 314
(addressing the requirements of a good cause affirmative defense).

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¶24 Of the three elements needed for J.H.’s prima facie case, only the
third—whether J.L.B. “failed to visit or communicate with [R.H.] for a period of
six months or longer”—is in dispute here. I note that J.H. does not specify a six-
month period, but from the pleadings and arguments, I infer it to be any six-month
period within the 15 months between J.L.B.’s last visit with R.H. in
September 2022 and the December 2023 filing of the petition.

¶25 It is undisputed that, because J.L.B. did not comply with the court-
ordered conditions that would have allowed supervised visitation, she did not visit
with R.H. at any point during those 15 months. J.H.’s prima facie case thus turns
on whether there is a genuine dispute about whether J.L.B. failed to communicate
with R.H. for six months or more during that time period.

¶26 Notably, the pertinent statutes provide that some contact is not
significant enough to constitute “communication” for purposes of WIS. STAT.
§ 48.415(1)(a)3. More specifically, § 48.415(1)(b) provides that “[i]ncidental
contact between parent and child [during the abandonment period] shall not
preclude [a] court [or jury] from finding that the parent has failed to visit or
communicate with the child.” In Rock County Department of Social Services v.
K.K., 162 Wis. 2d 431, 443-44, 469 N.W.2d 881 (Ct. App. 1991), this court
considered this statutory provision and defined “incidental contact” to mean
contact that is insignificant or occurred merely by chance. See also WIS JI—
CHILDREN 314.

¶27 As noted, during her deposition, J.L.B. testified that she
communicated with R.H. during video calls with her older son, when the older son
and R.H. were both in Jenny’s care. More specifically, J.L.B. testified about a
specific occasion right before Christmas 2023 in which she interacted with R.H.

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No. 2025AP85

through a video call. When asked whether R.H. was “participating in a
conversation with [her] or is [R.H.] in the background,” J.L.B. clarified: “He was
participating. He doesn’t talk very well, but he’s participating.” And, when asked
about other video calls she had with R.H. when he was in Jenny’s care, J.L.B.
testified to having had approximately 20 video calls in which her older son and
R.H. were involved. Thus, the question is whether, making all reasonable
inferences in J.L.B.’s favor, I can determine as a matter of law that the video
contact between J.L.B. and R.H. was “incidental,” such that it would not preclude
J.H. from showing that J.L.B. failed to communicate with R.H. over a six-month
period.

¶28 The circuit court did not address the video contact when it explained
its reasons for granting summary judgment in J.H.’s favor. And J.H. does not
develop any robust argument about the video contact on appeal. At best, J.H.
attempts to minimize J.L.B.’s deposition testimony as involving “indirect
communication,” with R.H. “merely in the background” of the video frame and
“not communicating” with J.L.B. That characterization is at odds with J.L.B.’s
deposition testimony. J.H. also cites to the statutory provision on incidental
contact, and he labels the video contact “incidental.” But J.H. misses the point—it
is his burden to show that there is no genuine dispute that J.L.B. failed to
communicate with R.H., and J.L.B.’s uncontroverted testimony suggests that there
was at least some degree of communication between J.L.B. and R.H. during the
relevant time period. A properly instructed jury might well determine that the
contact between J.L.B. and R.H. was “incidental,” but J.H. cites no authority to
support the proposition that this is a determination that a court, rather than a jury,
can make on summary judgment.

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¶29 Indeed, the parties do not cite any cases that address allegedly
incidental contact in the summary judgment context. My own independent
research suggests that, if I were to conclude on summary judgment that the video
contact was “incidental” such that it falls under WIS. STAT. § 48.415(1)(b) as a
matter of law, I would be the first court to reach such a conclusion.3 Under the
circumstances and resolving all inferences in J.L.B.’s favor, as I must, I conclude
that there is a genuine dispute of fact about whether J.L.B. failed to communicate
with R.H. during the relevant time period. See Steven V., 271 Wis. 2d 1, ¶36
(providing that summary judgment would “ordinarily be inappropriate in TPR
cases premised on … fact-intensive grounds for parental unfitness” such as
abandonment).

3
In my independent research, I identified two published opinions and two opinions that
are unpublished but citable that address the incidental contact standard in any depth. In three of
the opinions, this court affirmed determinations made by a judge or jury following a fact-finding
hearing on grounds. See Rock Cnty. DSS v. K.K., 162 Wis. 2d 431,443-44, 469 N.W.2d 881 (Ct.
App. 1991) (reviewing a jury verdict, and concluding that a constitutional challenge to the
“incidental contact” standard would have failed because the standard is not unconstitutionally
vague); P.S. v. G.O., 168 Wis. 2d 259, 263, 265, 483 N.W.2d 591 (Ct. App. 1992) (reviewing a
determination following a bench trial that a father’s contacts with his child were not incidental);
Brown Cnty. DHS v. K.Y.T., No. 2022AP531, unpublished slip op. ¶18 (Sept. 27, 2022)
(reviewing a jury’s finding of abandonment, and concluding that contact such as being in the
same courtroom and relatives bringing the child to visit the parent in prison could be considered
incidental and does not prevent a jury from finding that a parent failed to visit or communicate).
The fourth case, Racine County Human Services Department v. R.E., No. 2016AP2039,
unpublished slip op. (Mar. 15, 2017), briefly addressed the standard in the context of a grant of
summary judgment. However, the facts in R.E. are materially distinguishable and do not support
an argument that I could affirm the grant of summary judgment under these facts. In R.E., it was
undisputed that the parent did not visit or communicate with the child during the relevant time
period, but the parent did at one point give a gift to a social worker to be given to the child. Id.,
¶¶8, 10. The court of appeals determined that, if the indirect giving of this gift could be
considered contact with the child, it was, at most, “incidental contact” that did not preclude a
finding that the parent failed to visit or communicate with the child. Id., ¶10 n.2.

I cite K.Y.T. and R.E. for their persuasive value, consistent with WIS. STAT.
§ 809.23(3)(b).

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No. 2025AP85

¶30 Having reached this conclusion, I need not address J.L.B.’s
arguments about her “good faith” affirmative defense. I nevertheless pause to
briefly comment on the matter, so as to provide guidance for the proceedings on
remand. To establish the affirmative defense, J.L.B. would have the burden to
prove all of the following: that she had good cause for having failed to visit with
R.H. during the period in question; that she had good cause for having failed to
communicate with R.H. during the period in question; and that she communicated
about R.H. with the person who had physical custody of R.H. during the period in
question, or, if not, that she had good cause for having failed to communicate with
that person during that period. See WIS. STAT. § 48.415(1)(c); see also WIS JI—
CHILDREN 314. Here, J.L.B. makes some arguments about the later factors, but
she does not squarely address the first. If there was not a genuine dispute of fact
about whether J.L.B. communicated with R.H. during the relevant period, I would
agree with the circuit court that J.L.B.’s failure to take any steps that would allow
her to resume visitation with R.H. is significant in the analysis, and that it would
slant heavily in favor of a determination that J.L.B. did not have good cause for
having failed to visit with R.H. See Carla B., 228 Wis. 2d at 706 (addressing
circumstances in which a court order set a condition precedent that provided a
parent “keys to the door” to resuming visitation and the parent failed to take steps
towards satisfying the condition precedent).

B. Failure to Assume Parental Responsibility

¶31 The circuit court also granted J.H.’s motion for partial summary
judgment based on a second ground, J.L.B.’s failure to assume parental
responsibility under WIS. STAT. § 48.415(6). But here, too, there are genuine
disputes of material fact.

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¶32 Failure to assume parental responsibility is established by “proving
that the parent … [has] not had a substantial parental relationship with the child.”
WIS. STAT. § 48.415(6)(a). A substantial parental relationship is defined as “the
acceptance and exercise of significant responsibility for the daily supervision,
education, protection and care of the child.” See § 48.415(6)(b). The fact-finder is
allowed to consider, among other things, whether the parent has expressed concern
for or interest in the support, care, or well-being of the child, and whether the
person has neglected or refused to provide care or support for the child. See
§ 48.415(6)(b). When assessing this ground for termination, “[t]he fact-finder …
is permitted to look at the child’s life as a whole, and to decide whether, given all
the facts, there has been an assumption of parental responsibility.” Tammy W-G.
v. Jacob T., 2011 WI 30, ¶35, 333 Wis. 2d 273, 797 N.W.2d 854.

¶33 Here, as the circuit court recognized, many of the relevant facts are
undisputed and cut in J.H.’s favor, but there is also undisputed evidence that J.L.B.
was R.H.’s primary caretaker during the first 10 months of his life. There is also
some evidence that J.L.B. may have provided a small amount of money and
clothing for R.H.’s care on a couple of occasions. Given that parental
responsibility is assessed by reviewing the circumstances throughout the child’s
entire life, I cannot conclude that J.H. is entitled to judgment as a matter of law on
this ground.

II. Disposition

¶34 Finally, J.L.B. contends that the circuit court erred at the
dispositional phase because the court did not consider the “best interest of the
child” factors identified in WIS. STAT. § 48.426. At disposition, “[t]he court
should explain the basis for its disposition, on the record, by alluding specifically

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to the factors in WIS. STAT. § 48.426(3) and any other factors that it relies upon in
reaching its decision.” Sheboygan Cnty. DH&HS v. Julie A.B., 2002 WI 95, ¶30,
255 Wis. 2d 170, 188, 648 N.W.2d 402; see also Darryl T.-H. v. Margaret H.,
2000 WI 42, ¶35, 234 Wis. 2d 606, 610 N.W.2d 475 (“[W]hile it is within the
province of the circuit court to determine where the best interests of the child lie,
the record should reflect adequate consideration of and weight to each factor.”).
Here, the circuit court did not explicitly refer to any of the factors when it rendered
its decision, yet some of the court’s comments could be read as an implicit
consideration of at least some of the factors. In the end, I need not resolve
whether the court’s discussion was sufficient because, as stated, partial summary
judgment should not have been granted during the grounds phase of the
proceeding.

¶35 For all these reasons, I reverse the order granting partial summary
judgment in J.H.’s favor, and because there has not yet been a finding of unfitness,
I also reverse the dispositional order terminating J.L.B.’s parental rights. I remand
the matter for a fact-finding hearing in accordance with WIS. STAT. § 48.424 and
other proceedings consistent with Bobby G., 301 Wis. 2d 531, ¶6.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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