Jackson County DHS v. A. M. N.

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.
July 10, 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. 2024AP1166 Cir. Ct. No. 2022TP3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

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

JACKSON COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

A.M.N.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Jackson County:
ANNA L. BECKER, Judge. Affirmed.
No. 2024AP1166

¶1 NASHOLD, J.1 A.M.N. appeals the termination of her parental
rights to her daughter, J.T.T. She argues that her attorney provided ineffective
assistance of counsel by failing to timely file affidavits opposing summary
judgment during the grounds phase. I conclude that although counsel performed
deficiently by missing the statutory deadline, there is no reasonable probability
that the affidavits, if they had been timely filed, would have changed the outcome
of the proceeding. Because A.M.N. was not prejudiced by counsel’s error, I
affirm.

BACKGROUND

¶2 J.T.T.’s father passed away when she was eight years old, after
which she resided solely with her mother, A.M.N. In December 2020, when
J.T.T. was ten years old, A.M.N. left J.T.T. and her siblings with a relative, saying
that if the relative did not wish to care for the children, she should take them to
social services. The County took custody of J.T.T. that same month. J.T.T. was
found to be a child in need of protection or services (“CHIPS”) in March 2021.

¶3 On April 21, 2021, A.M.N. had a virtual visit with J.T.T. After that,
A.M.N. did not visit or communicate with J.T.T. until April 25, 2022.

¶4 The County filed a petition to terminate A.M.N.’s parental rights in
July 2022. The petition alleged two grounds for termination: abandonment under
WIS. STAT. § 48.415(1)(a)2., and continuing CHIPS under § 48.415(2).

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

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No. 2024AP1166

¶5 A few months later, the County filed a motion for partial summary
judgment as to abandonment. A hearing was set for December 13, 2022. On the
date of the scheduled hearing, A.M.N.’s counsel filed two affidavits: one from
A.M.N., and one from a client services worker in counsel’s office. The affidavits
did not dispute that A.M.N. had failed to communicate with or contact J.T.T. for
the year between April 21, 2021 and April 25, 2022; rather, they sought to
demonstrate that A.M.N. had good cause for this failure. At the hearing, the
County objected to the affidavits and moved that they be struck. The circuit court
struck the affidavits as untimely because WIS. STAT. § 802.08(2) requires that
affidavits opposing summary judgment be filed at least five days before the
hearing.

¶6 The circuit court then concluded that there was no genuine issue of
material fact that J.T.T. had been placed outside the home by a court order
containing the notices required by WIS. STAT. § 48.356(2), that A.M.N. had not
visited or communicated with J.T.T. between April 21, 2021 and April 25, 2022,
and that A.M.N. had not established good cause for failing to visit or communicate
with J.T.T.2 Accordingly, the court granted partial summary judgment as to
abandonment and set the case for a dispositional hearing. After the dispositional
hearing, the court terminated A.M.N.’s parental rights.

2
The circuit court also appears to have concluded that there was an additional period of
abandonment, namely, from December 20, 2020, when J.T.T. was removed from the home,
through April 21, 2021. A.M.N. argues that this period cannot be considered as a period of
abandonment because J.T.T. was not removed from the home pursuant to a court order with the
statutory warnings until March 2021. Although the record suggests that A.M.N. is correct on this
point, I do not address this additional time period, given my determination with respect to the
longer period at issue: April 21, 2021 to April 25, 2022.

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No. 2024AP1166

¶7 A.M.N. filed a postdisposition motion. The motion alleged that
A.M.N. was denied the effective assistance of counsel when her lawyer filed
affidavits opposing summary judgment after the deadline to do so had elapsed,
resulting in the affidavits being struck.

¶8 After an evidentiary hearing, the circuit court issued a written
decision denying the postdisposition motion. The court concluded that counsel’s
failure to timely file the affidavits—which counsel testified resulted from her lack
of knowledge of the statutory deadline, as well as failure to adequately manage her
time—constituted deficient performance. However, the court concluded that the
two affidavits at issue would not, had they been timely filed and therefore
considered, have changed the result of the summary judgment hearing. Therefore,
the court concluded, counsel’s error did not prejudice A.M.N., and A.M.N. could
not demonstrate ineffective assistance of counsel. The court accordingly denied
the motion.

¶9 A.M.N. appeals.

DISCUSSION

¶10 A parent facing the termination of his or her parental rights has a
right to counsel. WIS. STAT. § 48.23(2)(b). This right includes the guarantee of
“effective counsel.” A.S. v. State, 168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992).
Courts evaluate counsel’s effectiveness in the termination of parental rights
(“TPR”) context using the same two-prong inquiry used in criminal cases: that of
Strickland v. Washington, 466 U.S. 668 (1984). A.S., 168 Wis. 2d at 1005. The
Strickland test first asks whether counsel’s performance was deficient: whether
counsel made errors falling outside the “wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. If counsel has performed deficiently, the

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No. 2024AP1166

question becomes whether the deficiency has resulted in prejudice to his or her
client: whether there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A “reasonable probability” is a lower bar than the more-likely-than-not
preponderance of the evidence standard; it is “a probability sufficient to
undermine confidence in the outcome” of the proceedings. Id. at 693-94.

¶11 I conclude, along with the circuit court, the parties, and A.M.N.’s
trial counsel’s own candid testimony, that trial counsel performed deficiently.
Counsel’s professional obligations include knowing and complying with relevant
filing rules, including deadlines. See State v. Felton, 110 Wis. 2d 485, 506-07,
329 N.W.2d 161 (1983) (discussing lawyers’ duty to “inform themselves of the
relevant law prior to formulating a defense or determining a strategy or tactic”).
As the court noted, there was no conceivable strategic advantage to be gained from
late filing, so it is clear that the first Strickland prong is met here.

¶12 This leaves the question of whether this error prejudiced A.M.N.
Counsel’s error occurred during the first phase of the two-phase TPR procedure:
the “grounds” or “unfitness” phase. See Steven V. v. Kelley H., 2004 WI 47,
¶¶24-27, 271 Wis. 2d 1, 678 N.W.2d 856. During this phase, the circuit court
determines whether the parent is unfit based on one of grounds listed in WIS.
STAT. § 48.415, of which abandonment is one. Steven V., 271 Wis. 2d 1, ¶¶24-25;
§ 48.415(1)(a)2. If the parent is determined to be unfit, the case proceeds to the
dispositional phase, during which the court determines if termination is in the best
interests of the child. Steven V., 271 Wis. 2d 1, ¶27.

¶13 Here, counsel’s late filing of the affidavits resulted in their exclusion
from consideration during the grounds phase, and the circuit court granted partial

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No. 2024AP1166

summary judgment as to unfitness, concluding that A.M.N. had abandoned J.T.T.
This, in turn, led to the dispositional phase of the proceeding that ended with the
termination of A.M.N.’s parental rights. To decide whether A.M.N. was
prejudiced by the late filing, I must decide whether there is a “reasonable
probability” that, had counsel not erred—that is, if she had filed the affidavits on
time, making them part of the factual record the court would consider—summary
judgment would have been denied.

¶14 Parental unfitness may be decided by summary judgment when there
are no material facts in dispute. Id., ¶5. This court reviews a grant of summary
judgment de novo. Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 651, 476
N.W.2d 593 (Ct. App. 1991). Summary judgment is appropriate only when there
are no material facts in dispute and a party is entitled to summary judgment as a
matter of law. WIS. STAT. § 802.08; Tomlin v. State Farm Mut. Auto. Liab. Ins.
Co., 95 Wis. 2d 215, 218, 290 N.W.2d 285 (1980). A circuit court, or an appellate
court reviewing a grant of summary judgment, must take all facts pleaded by the
nonmoving party, as well as all inferences reasonably derived from these facts, as
true. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816
(1987).

¶15 In this case, the County moved for partial summary judgment as to
unfitness on the ground of abandonment: specifically, the minimum three-month
abandonment ground set forth in WIS. STAT. § 48.415(1)(a)2.3 This ground has

3
WISCONSIN STAT. § 48.415(1)(a)2. states that abandonment is established when “the
child has been placed, or continued in a placement, outside the parent’s home by a court order
containing the notice required by [WIS. STAT. §] 48.356(2) or [WIS. STAT. §] 938.356(2) and the
parent has failed to visit or communicate with the child for a period of 3 months or longer.”

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No. 2024AP1166

two elements: (1) the child was placed, or continued in a placement, outside the
parent’s home pursuant to a court order that contained the TPR notice required by
law; and (2) the parent failed to visit or communicate with the child for a period of
three months or longer. WIS JI—CHILDREN 313 (2024). Even if both elements
are satisfied, abandonment is not proved if the parent can show good cause for
having failed to visit or communicate with the child during the relevant time
period. WIS JI—CHILDREN 313 (2024); § 48.415(1)(c).

¶16 There is no dispute that J.T.T. was placed outside A.M.N.’s home by
a court order containing the requisite notice from April 21, 2021 until April 25,
2022, nor that A.M.N. failed to visit or communicate with J.T.T. during this time.
The affidavits that A.M.N.’s counsel filed late were aimed at showing that A.M.N.
had good cause for not visiting or communicating with J.T.T. during this time.

¶17 The first of the two affidavits, from A.M.N., avers:

1. That during the years of 2021 and 2022 I had good
cause for any alleged failure to visit or to communicate
with [J.T.T.]

2. That my relocation to Minnesota was necessary in
order to have the greatest opportunity and possibility
of complying with my conditions so I could increase
my contact with [J.T.T.]

3. That since April 21, 2021, I have made multiple
attempts to contact [J.T.T.], both by calling multiple
family members and other individuals to seek
assistance in connecting more with [J.T.T.], and by
calling representatives of the Department in order to
try to remain in compliance and try to improve my
connection with [J.T.T.]

4. That I have been incarcerated in Minnesota and have
not had a reasonable opportunity to contact [J.T.T.]

5. That Jackson County did not provide me with the
services needed to have increased contact with [J.T.T.]

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No. 2024AP1166

as required by law, such as the Department’s failure to
provide transportation for visits or additional
scheduling of video visits.

6. That I have mailed letters to [J.T.T.] from custody in
Minnesota.

7. That I have inquired into and attempted to establish
services pursuant to my conditions here while in
custody in Minnesota and have been denied; this
prevented and interfered with my ability to visit and
otherwise communicate with [J.T.T.], as the Jackson
County Department refused to continue working with
me for [J.T.T.] in substantial part because I was not
receiving services in Minnesota. This factor was
outside of my control.

8. That placement providers have cancelled or
rescheduled planned telephone visits with [J.T.T.] in
such a way as to ultimately extinguish planned
telephone visits; that this resulted in my not having a
reasonable opportunity to visit or to otherwise
communicate with my daughter, [J.T.T.]

9. That I have been informed by Department
representatives that [J.T.T.] has experienced trauma,
and that because of this the Department representatives
required me to manage my attempts to communicate
with [J.T.T.] within the boundaries of what the
Department or the placement providers scheduled or
arranged; this is outside of my control.

10. That while in custody I along with other incarcerated
people have been on additional lock-down hours not
due to behavior and have only limited hours during
which I can make attempts to contact [J.T.T.] or a
worker or placement provider regarding whether a
visit has been set up or scheduled for me with [J.T.T.]

¶18 The second affidavit was from a client services worker in trial
counsel’s office. It pertained to records obtained from the jail in Minnesota where
A.M.N. had been confined, and documented that A.M.N. had made phone calls to
relatives regarding her children, including J.T.T. The first such call noted in this
affidavit was placed on July 14, 2022, several months after the time period during
which A.M.N. was alleged to have abandoned J.T.T.: again, April 21, 2021 to

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No. 2024AP1166

April 25, 2022. The affidavit also appears to suggest that, according to the jail
records, the County scheduled no visits between A.M.N. and J.T.T. after April 2,
2021, but the affidavit does not provide information about why visits were
allegedly not scheduled.

¶19 Like the circuit court, I conclude that there is no reasonable
probability that the affidavits A.M.N.’s counsel failed to timely file would have
changed the outcome of the proceeding: that is, there is no reasonable probability
that the affidavits, even if considered by the circuit court, would have resulted in
the denial of the County’s partial summary judgment motion. This is primarily
because A.M.N., to defeat the County’s motion, needed to allege facts that could
support a conclusion that after J.T.T. was removed from A.M.N.’s home by a
court order containing the required warnings, no three-month period had elapsed
during which A.M.N. failed to visit or communicate with J.T.T. without good
cause for the failure. But the affidavits focus heavily on the time during which
A.M.N. was in jail in Minnesota. Notably, as in the circuit court, A.M.N. fails to
provide this court with any time frame for her incarceration. However, the circuit
court concluded—and A.M.N. does not dispute—that she was not incarcerated
until sometime in the summer of 2022—outside of the April 21, 2021 to April 25,
2022 time period that the circuit court considered A.M.N. to have abandoned
J.T.T. Because of this, paragraphs 4, 6, 7, and 10 of A.M.N.’s affidavit, all of
which relate to A.M.N.’s period of incarceration, cannot establish the existence of
a genuine issue of material fact as to good cause for A.M.N.’s lack of contact with
J.T.T. during the relevant time.

¶20 The other paragraphs in A.M.N.’s affidavit are ambiguous regarding
the time period to which they refer; it is possible that they refer to the relevant
time period of April 21, 2021 to April 25, 2022. Because I must construe the

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No. 2024AP1166

affidavit favorably to A.M.N., I will assume that these paragraphs do refer to this
period. The paragraphs are nevertheless insufficient to create a genuine issue of
material fact, because they make only general averments. Paragraph 1 of
A.M.N.’s affidavit avers that she “had good cause for any alleged failure to visit or
to communicate with [J.T.T.],” which is simply the conclusory claim that A.M.N.
satisfied the legal standard of WIS. STAT. § 48.415(1)(c). Paragraph 2 alleges that
A.M.N.’s move to Minnesota was intended to increase contact with J.T.T., but it
does not give any information about what cause A.M.N. may have had for not
contacting or visiting J.T.T. Paragraph 3 avers that “since April 21, 2021,”
A.M.N. made “multiple attempts” to contact J.T.T., but it provides nothing in the
way of specifics, and in particular it does not state that these attempts occurred
throughout the relevant time period of April 21, 2021 to April 25, 2022, such that
there was no three-month period of abandonment. The same is true of
paragraph 5, which alleges generally that the County failed to provide
transportation for visits or “additional” video visits; paragraph 8, which alleges
that some telephone visits were canceled or rescheduled; and paragraph 9, which
alleges that the County regulated A.M.N.’s attempts to contact J.T.T. because of
trauma J.T.T. had experienced.

¶21 To demonstrate a genuine issue of material fact, A.M.N. was
obligated to set forth “‘specific facts,’ evidentiary in nature and admissible in
form, showing that a genuine issue exists for trial.” See Helland v. Kurtis A.
Froedtert Mem’l Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (Ct.
App. 1999) (citation omitted). While portions of A.M.N.’s affidavit allege failings
of the County in facilitating contact with J.T.T., they do not assert that these
failings occurred with such frequency that they provide good cause for A.M.N.’s

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No. 2024AP1166

failure to have contact with J.T.T. for each three-month period between April 21,
2021 and April 25, 2022.

¶22 Although a circuit court must construe summary judgment filings
liberally, “with a view toward substantial justice to the parties,” Green Spring
Farms, 136 Wis. 2d at 317, “allegations of ultimate facts [or] conclusions of law
… do not meet the statutory requirements and will be disregarded,” Hopper v. City
of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139 (1977). The lack of “specific
facts” in the affidavits that A.M.N.’s counsel prepared, but did not timely file,
means that they do not demonstrate the existence of a genuine factual dispute as to
whether A.M.N. had good cause for failing to contact J.T.T. for every three-month
period between April 21, 2021 and April 25, 2022. From this, it necessarily
follows that A.M.N.’s counsel’s deficient performance—the late filing of the
affidavits, resulting in them being struck—did not prejudice A.M.N., because
there is no reasonable probability that the court’s considering the affidavits would
have changed its decision on summary judgment.

CONCLUSION

¶23 For the foregoing reasons, I affirm the order terminating A.M.N.’s
parental rights to J.T.T.

By the Court.—Order affirmed.

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

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