COURT OF APPEALS

DECISION

DATED AND FILED

December 22, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1289 Cir. Ct. No. 2020TP18

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE TERMINATION OF PARENTAL RIGHTS TO B. K.,

A PERSON UNDER THE AGE OF 18:

C. K. AND A. K.,

 PETITIONERS-RESPONDENTS,

 V.

K. L.,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Portage County: 

THOMAS B. EAGON, Judge. Affirmed. 
No. 2022AP1289

2

¶1 FITZPATRICK, J.1 Kate appeals an order of the Portage County 

Circuit Court terminating her parental rights to her daughter, Beth.2 The circuit 

court granted partial summary judgment in favor of April and Charles—Beth’s 

paternal grandparents (“the Grandparents”)—on the ground that, pursuant to WIS.

STAT. § 48.415(1), Kate abandoned Beth without good cause. Kate argues that 

partial summary judgment should not have been granted because there are genuine 

issues of material fact as to whether she had good cause for abandoning Beth. I

affirm.

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 Kate is Beth’s biological mother. In 2013, Beth was taken away 

from her parents and into protective custody at the age of four months. A circuit 

court found that Beth was a child in need of protection and services due to neglect 

by her parents and ordered that she be placed with the Grandparents. Beth has 

resided with the Grandparents since that time. In February 2015, after both Kate 

and Beth’s father failed to meet court-ordered conditions for Beth’s return, a court 

appointed the Grandparents as Beth’s guardians. At that time, the court did not 

impose any supervision requirements on Kate’s visits with Beth. 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. 

2

 Consistent with the parties’ briefing and pursuant to the policy underlying WIS. STAT.

§ 809.19(1)(g), I use the pseudonyms “Kate” for appellant, K.L., “Beth” for the minor, B.K., 

“Charles” for the respondent, C.K., and “April” for the respondent, A.K.
No. 2022AP1289

3

¶4 Approximately four months after the Grandparents were appointed 

as guardians, Kate was arrested for discharging a firearm in the direction of a 

person at her residence. Kate was intoxicated at the time. Kate was convicted of 

recklessly endangering safety as a result of that incident. Unsurprisingly, the

guardianship court then modified the guardianship order to require that Kate’s 

visits with Beth be supervised. 

¶5 At first, Kate’s visits were supervised by Kate’s aunt. However,

after an incident in which the aunt permitted Kate to take Beth to a hotel for a 

weekend in violation of the guardianship court order, the Grandparents refused to 

allow the aunt to supervise any more visits. After this incident, April began 

supervising Kate’s visits. At one point, the guardianship court authorized Kate’s 

parents to provide supervision for Kate’s visits with Beth, but they stopped 

supervising after their relationship with Kate became “strained.” April then 

resumed supervising Kate’s visits with Beth. In October 2017, the guardianship

court granted Kate supervised visits with Beth twice per month for ninety minutes 

each. 

¶6 In December 2018, April supervised one of Kate’s visits with Beth 

and Kate’s three other children. During the visit, April heard one of the children 

say “you bit me,” and April determined that Kate had disciplined one of Kate’s 

children other than Beth by biting that child on the neck. April reported the 

incident to the children’s father, law enforcement, and Child Protective Services. 

April did not notify Kate that she did so. In January 2019, after Kate was 

informed that April had reported the incident, Kate filed a petition to terminate the

Grandparents’ guardianship of Beth. However, the court dismissed that petition 

for failure to prosecute because Kate failed to appear for a final pretrial conference 
No. 2022AP1289

4

and the trial. The court ordered that, as a result of her failure to appear, Kate was 

required to pay the $1,500 outstanding fees incurred by the guardian ad litem. 

¶7 In 2020, in an action separate from the guardianship, the 

Grandparents filed a petition to terminate Kate’s parental rights to Beth. The 

Grandparents asserted that Kate had abandoned Beth under WIS. STAT.

§ 48.415(1)(a)3.3 According to the petition, Kate failed to visit or communicate 

with Beth without good cause between December 19, 2018 and December 19, 

2019. In support of the Grandparents’ partial summary judgment motion, April 

filed an affidavit asserting, among other things, that she contacted Kate at least 

three times in the spring of 2019 to schedule a visit, but Kate refused to visit or 

talk to Beth. In response to one such communication to Kate from April, Kate 

sent the following text message to April: 

I will be refiling [a petition in the guardianship]. Either 

give me my daughter and get out of my life, or figure out a 

way that you can keep her, or you keep her and you get out 

of my life, and I will have a relationship with her when 

she’s an adult and can understand the emotional abuse 

you’ve put on her.

 

3

 WISCONSIN STAT. § 48.415 provides in pertinent part:

(1) Abandonment. 

(a) Abandonment ... shall be established by proving any 

of the following:

....

3. The child has been left by the parent with any person, 

the parent knows or could discover the whereabouts of the child 

and the parent has failed to visit or communicate with the child 

for a period of 6 months or longer.

Sec. 48.415(1)(a)3.
No. 2022AP1289

5

April’s affidavit also stated that Kate asked April for pictures of Beth in October 

2019, but Kate did not ask to visit or talk to Beth in that communication. April 

provided the requested pictures to Kate.

¶8 In her response concerning the Grandparents’ partial summary 

judgment motion, Kate did not dispute that: she failed to visit or communicate 

with Beth during the applicable time period; and April contacted her in the spring 

of 2019 to schedule a visit.4 Kate does not dispute those facts on appeal. Instead, 

Kate contended to the circuit court, and contends on appeal, that she had “good 

cause” for failing to do so pursuant to WIS. STAT. § 48.415(1)(c).

5

¶9 The circuit court granted the Grandparents’ motion for partial

summary judgment. The court determined that there was at least a six-month 

period in which Kate failed to visit or communicate with Beth, and that failure was 

without good cause. The court then held a dispositional hearing and entered an 

order terminating Kate’s parental rights to Beth.6 Kate appeals the circuit court’s 

order. 

¶10 Additional material facts are discussed in the following discussion.

 

4

 I note that Kate’s response in the circuit court explicitly declined to concede the ground 

for abandonment. Nonetheless, Kate’s response, and affidavit, did not dispute that she failed to 

visit or communicate with Beth from December 19, 2018, to December 19, 2019.

5

 The text of the “good cause” defense under WIS. STAT. § 48.415(1)(c) is reproduced in 

pertinent part later in this opinion. 

6

 Beth’s biological father agreed to the voluntary termination of his parental rights and is 

not a party to this appeal. 
No. 2022AP1289

6

DISCUSSION

¶11 On appeal, Kate argues that the circuit court erred in granting partial 

summary judgment because there remain genuine issues of material fact regarding 

her good cause defense. I begin by setting forth governing principles and this 

court’s standard of review regarding termination of parental rights proceedings.

I. Governing Principles Regarding Termination of Parental Rights 

and This Court’s Standard of Review.

¶12 Termination of parental rights proceedings involve two phases. 

Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 

N.W.2d 402. In the first, or “grounds,” phase of the proceeding, the court 

determines “whether grounds exist for the termination of parental rights.” Id.

(citing WIS. STAT. § 48.424(1)). During this phase, “the petitioner must prove by 

clear and convincing evidence that one or more of the statutorily enumerated 

grounds for termination of parental rights exist.” Steven V. v. Kelley H., 2004 WI 

47, ¶24, 271 Wis. 2d 1, 678 N.W.2d 856 (citing WIS. STAT. § 48.31(1)). If the 

petitioner proves one or more grounds for termination by clear and convincing 

evidence, “the court shall find the parent unfit.” Id., ¶25 (citing WIS. STAT.

§ 48.424(4)). In the second, or “dispositional,” phase the court must determine 

“whether it is in the best interest of the child that the parent’s rights be 

permanently extinguished.” Id., ¶27 (citing WIS. STAT. § 48.426(2)).

¶13 This appeal involves the circuit court’s grant of partial summary 

judgment in favor of the Grandparents with respect to the ground for termination 

of Kate’s parental rights to Beth. This court reviews a grant of partial summary 

judgment independently, applying the same methodology as the circuit court.

L.L.N. v. Clauder, 209 Wis. 2d 674, 682, 563 N.W.2d 434 (1997). Summary 
No. 2022AP1289

7

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 as a matter of law.” WIS. STAT. § 802.08(2). “A factual issue is 

‘genuine’ if the evidence is such that a reasonable jury could return a verdict in 

favor of the nonmoving party.” Schmidt v. Northern States Power Co., 2007 WI 

136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. “A ‘material fact’ is one that is ‘of 

consequence to the merits of the litigation.’” Id. (citation omitted).

¶14 In determining whether to grant summary judgment, “a court first 

examines the pleadings to determine whether a claim for relief is stated and 

whether a material issue of fact is presented.” L.L.N., 209 Wis. 2d at 682. Here, 

the parties do not dispute that the pleadings state a claim and present the existence 

of factual issues.

¶15 A court “next considers the moving party’s affidavits or other proof 

to determine whether the moving party has made a prima facie case for summary 

judgment under [WIS. STAT.] § 802.08(2).” Id. at 683. As noted, Kate does not 

dispute that the Grandparents have established that she did not visit or 

communicate with Beth from December 19, 2018, to December 19, 2019. As a 

result, the Grandparents have made a prima facie case for partial summary 

judgment based on the abandonment ground set forth in WIS. STAT.

§ 48.415(1)(a)3. 

¶16 Next, “the opposing party must show, by affidavit or other proof, the 

existence of disputed material facts or undisputed material facts from which 

reasonable alternative inferences may be drawn that are sufficient to entitle the 

opposing party to a trial.” L.L.N., 209 Wis. 2d at 683. Here, Kate asserts that she 
No. 2022AP1289

8

had good cause for failing to visit or communicate with Beth for more than six 

months between December 19, 2018, and December 19, 2019, and a trial is 

necessary on that issue. 

¶17 Affidavits and other proof submitted by the parties are viewed in a 

light most favorable to the party opposing summary judgment, and any doubts as 

to the existence of a genuine issue of material fact are resolved against the moving 

party. Id. at 684. Additionally, this court “draw[s] all reasonable inferences from 

the evidence in the light most favorable to the non-moving party.” Pum v. 

Wisconsin Physicians Serv. Ins. Corp., 2007 WI App 10, ¶6, 298 Wis. 2d 497, 

727 N.W.2d 346.

¶18 Partial summary judgment can be granted in the grounds phase of a 

termination of parental rights proceeding. Steven V., 271 Wis. 2d 1, ¶6. A court 

may grant partial summary judgment during this phase if the moving party

establishes that “there is no genuine issue as to any material fact regarding the 

asserted grounds for unfitness under WIS. STAT. § 48.415, and, taking into 

consideration the heightened burden of proof specified in WIS. STAT. § 48.31(1) 

and required by due process, the moving party is entitled to judgment as a matter 

of law.” Id.; see WIS. STAT. § 802.08(2). Our supreme court has stated that “[t]he 

propriety of summary judgment is determined case-by-case” and emphasized that 

summary judgment procedures may be used for any statutory ground for 

termination of parental rights. Steven V., 271 Wis. 2d 1, ¶37 n.4; see also State v. 

Bobby G., 2007 WI 77, ¶40, 301 Wis. 2d 531, 734 N.W.2d 81. 

II. The Circuit Court Properly Granted Partial Summary Judgment.

¶19 As noted, Kate argues on appeal that there are genuine issues of 

material fact as to whether she has demonstrated, pursuant to WIS. STAT.
No. 2022AP1289

9

§ 48.415(1)(c), a “good cause” defense to the abandonment ground established by 

the Grandparents. This statutory defense as advanced by Kate requires her to 

prove the following by a preponderance of the evidence:

(c) Abandonment is not established under par. (a)

... 3. if the parent proves all of the following by a 

preponderance of the evidence:

1. That the parent had good cause for having failed 

to visit with the child throughout the time period specified 

in par. (a) ... 3.

2. That the parent had good cause for having failed 

to communicate with the child throughout the time period 

specified in par. (a) ... 3. 

3. If the parent proves good cause under subd. 2. 

that one of the following occurred:

a. The parent communicated about the child with 

the person or persons who had physical custody of the child 

during the time period specified in par. (a) ... 3.

b. The parent had good cause for having failed to 

communicate about the child with the person or persons 

who had physical custody of the child ... throughout the 

time period specified in par. (a) ... 3.

Sec. 48.415(1)(c).7 Accordingly, in order to have a trial, it is Kate’s burden to 

establish that there are genuine issues of material fact regarding each of the 

following for a time period of more than six months from December 19, 2018, to 

December 19, 2019: (1) Kate had good cause for having failed to visit with Beth; 

and (2) Kate had good cause for having failed to communicate with Beth and for 

having failed to communicate about Beth with the Grandparents. 

 

7

 Kate does not contend that Beth’s age or condition would have rendered Kate’s 

communication with Beth meaningless. Accordingly, a portion of WIS. STAT. § 48.415(1)(c)3. 

which concerns that statutory defense was removed from the statutory subpart quoted above.
No. 2022AP1289

10

¶20 The term “good cause” is not defined in this statute, but a standard 

jury instruction regarding abandonment, WIS JI—CHILDREN 314, sets forth the 

following factors pertinent to this situation which may aid in determining whether 

a parent had good cause for failing to visit or communicate: (1) “whether [the 

parent] had a reasonable opportunity to visit or communicate with [the child] or 

communicate with [the person] who had physical custody of [the child]”; 

(2) “attempts to contact [the child]”; (3) “whether person(s) with physical custody 

of [the child] prevented or interfered with efforts by [the parent] to visit or 

communicate with [the child]”; and (4) “any other factors beyond [the parent’s] 

control which prevented or interfered with visitation or communication.”

8

¶21 For the following reasons, I conclude that Kate has not demonstrated 

a genuine dispute of material fact as to her good cause defense.9

 

8

 In her brief-in-chief, rather than referring to WIS JI—CHILDREN 314, Kate refers to 

WIS JI—CHILDREN 313 which concerns a statutory subpart not applicable in this matter. 

However, that minor error is easily overlooked because Kate’s brief clearly intends to refer to the 

applicable jury instruction.

9

 The Grandparents assert in their response brief that, in her brief-in-chief, Kate relies on 

portions of her testimony from the dispositional phase of the proceedings that occurred after the 

circuit court granted partial summary judgment. In her reply brief, Kate refers to that assertion

from the Grandparents as “puzzling and false.” It is neither. Accordingly, I do not rely on the 

dispositional hearing testimony because that hearing occurred after the circuit court decided the 

partial summary judgment motion. See Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 

146 Wis. 2d 568, 573, 431 N.W.2d 721 (Ct. App. 1988) (stating that this court reviews summary 

judgment motions “on the record as it existed when [the motions] were decided by the trial court, 

not on a record expanded by the testimony at trial”). Counsel should not continue this practice. 

In addition, Kate asserts in her reply brief—which I note has a different author than the author of 

her brief-in-chief—that those portions of the dispositional hearing testimony referenced facts that 

had already been established by Kate’s deposition testimony that occurred prior to the court’s 

partial summary judgment ruling. That is not correct. Those portions of the deposition transcript 

relied on by Kate, in an attempt to backfill on appeal her dispositional hearing testimony, refer to 

events outside the time period in dispute or are so vague as to be of no use in the analysis.

(continued)
No. 2022AP1289

11

¶22 First, Kate argues that she had good cause for failing to visit or 

communicate with Beth because of her subjective feelings about April’s 

supervision of visits with Beth. Kate supports this argument with the following 

statement from her affidavit: “I didn’t feel comfortable with [April] supervising 

the visits. My mother was not a reliable supervisor. [April] no longer wanted 

[Kate’s aunt] to supervise. I had no other options for supervision. I wanted to see 

my daughter.” According to Kate’s argument on appeal, she was uncomfortable 

with April’s supervision because April had reported Kate to the police and Child 

Protective Services after the biting incident in December 2018, and Kate was 

worried that April would file similar reports if April continued to supervise 

visits.10 

 

The Grandparents also assert that record citations to the testimony from the dispositional 

hearing in Kate’s brief-in-chief are inaccurate. The Grandparents are correct. For the reasons 

stated above, I do not consider Kate’s testimony from the dispositional hearing. Nonetheless, I 

remind counsel who authored the brief-in-chief to provide accurate citations to the record. Forest 

Cnty. Potawatomi Cmty. v. Township of Lincoln, 2008 WI App 156, ¶14 n.8, 314 Wis. 2d 363, 

761 N.W.2d 31 (Arguments not supported by accurate citations to the record do not comply with 

WIS. STAT. RULE 809.19(1)(e), and “this court may refuse to consider such arguments.”).

10

 Kate supports her good cause arguments with her testimony from a deposition. 

However, Kate does not mention her deposition testimony until her reply brief on appeal and did 

not mention her deposition testimony in argument or briefing in the circuit court. Normally, this 

court “do[es] not consider matters argued for the first time in a reply brief because that precludes 

the respondent from being able to address those arguments.” Techworks, LLC v. Wille, 2009 WI 

App 101, ¶28, 318 Wis. 2d 488, 770 N.W.2d 727. Kate’s failure to address that testimony in her 

brief-in-chief may be unfair to the Grandparents because they did not have an opportunity to 

respond to the specifics of that testimony. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 

2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an appellant to 

withhold an argument from its main brief and argue it in its reply brief because such conduct 

would prevent any response from the opposing party.”). At any rate, most of the deposition 

testimony of Kate that she relies on for this particular argument concerns events outside the 

applicable time period of December 2018 to December 2019 and, for the rest, the bases for her 

actions enunciated at Kate’s deposition are essentially the same as those already summarized for 

this argument.
No. 2022AP1289

12

¶23 In response, the Grandparents argue that Kate’s argument is similar 

to an argument rejected by this court in Brown County Human Services v. B.P., 

2019 WI App 18, 386 Wis. 2d 557, 927 N.W.2d 560. In that case, the Brown 

County Human Services Department (“the Department”) petitioned to terminate 

the parental rights of B.P. and T.F. on the ground that they abandoned their 

daughter pursuant to WIS. STAT. § 48.415(1)(a)3. B.P., 386 Wis. 2d 557, ¶6. On 

appeal, this court affirmed the circuit court’s grant of summary judgment as to 

B.P., but reversed as to T.F.11 Id., ¶¶42, 45. B.P. argued on appeal that he had 

good cause for failing to visit or communicate with his daughter because he had 

mental health issues and “emotional strain” during the applicable time period. Id., 

¶43. This court explained that there was no genuine issue regarding these facts 

because B.P. failed to demonstrate a causal connection between his mental health 

issues and emotional strain and his failure to visit or communicate with his 

daughter. Id., ¶45. Even if the facts were viewed “in a light most favorable to 

B.P.,” this court concluded that “any inference or conclusion as to how these 

issues affected his ability to visit or communicate with [his daughter] would be 

based upon sheer speculation.” Id., ¶46. 

¶24 Even when viewed in a light most favorable to her, Kate’s assertions 

do not constitute a genuine issue of material fact as to Kate’s good cause argument 

because no reasonable jury could return a verdict in Kate’s favor on this particular 

issue. See id. Kate does not explain why a single report filed by April—which 

Kate admits did not lead to “any further action” by the police or Child Protective 

Services—was a reasonable basis to avoid visiting or attempting to visit Beth for 

 

11

 I address this court’s decision regarding T.F. later in this opinion. 
No. 2022AP1289

13

an entire year. See WIS JI—CHILDREN 314 n.2 (a parent raising a good cause 

defense must prove that he or she had “good cause for having failed to visit ...

with the child during the period in issue”). Also, Kate articulates no arguable 

basis as to how her subjective feelings about April’s supervision of visits 

prevented her from communicating with Beth for an entire year in ways that did 

not involve supervised visits, such as calling or sending a letter. Moreover, Kate’s 

argument does not raise a material issue of fact regarding her failure to 

communicate with the Grandparents about Beth for an entire year, December 2018 

to December 2019. See WIS. STAT. § 48.415(1)(c)3.b. Thus, because there is no 

evidence that would permit a reasonable jury to return a verdict in Kate’s favor on 

this portion of her good cause argument, and, among other things, her argument 

would require a finder of fact to speculate, Kate has not shown a genuine issue of 

fact that defeats summary judgment. See B.P., 386 Wis. 2d 557, ¶46; Schmidt, 

305 Wis. 2d 538, ¶24 (“A factual issue is ‘genuine’ if the evidence is such that a 

reasonable jury could return a verdict in favor of the nonmoving party.”).

¶25 Second, Kate argues that she had good cause for failing to visit or 

communicate with Beth because April interfered with Kate’s ability to do so. The 

evidentiary support Kate provides for this argument is reasonably summarized in 

the following statement from her affidavit: “[April] has complete control over 

access to my daughter and she is unreasonable in her decisions about access to my 

daughter.”

¶26 However, even when viewed most favorably to Kate, the assertions 

on which she relies do not demonstrate that April’s actions caused Kate’s failure 

to visit or communicate with Beth during the applicable time period. See B.P., 

386 Wis. 2d 557, ¶45. Put another way, Kate does not identify any evidence that 

April actually prevented her from visiting or communicating with Beth. See WIS.
No. 2022AP1289

14

STAT. § 802.08(3) (“[T]he adverse party’s response, by affidavits or as otherwise 

provided in this section, must set forth specific facts showing that there is a 

genuine issue for trial.” (emphasis added)). Indeed, Kate does not dispute that 

April reached out to her three times during the applicable time period to arrange a 

visit with Beth. Kate does not dispute that she sent the following text message to 

April in the spring of 2019: 

I will be refiling [a petition in the guardianship]. Either 

give me my daughter and get out of my life, or figure out a 

way that you can keep her, or you keep her and you get out 

of my life, and I will have a relationship with her when 

she’s an adult and can understand the emotional abuse 

you’ve put on her.

These facts demonstrate that April did not prevent Kate from visiting or 

communicating with Beth but, rather, provided Kate with multiple opportunities to 

visit or communicate with Beth. With respect to April’s actions, Kate does not 

explain or point to any evidence to demonstrate that those actions completely 

prevented Kate from visiting or communicating with Beth during this time period. 

Moreover, Kate does not attempt to explain away her failure to communicate with 

the Grandparents about Beth from December 2018 to December 2019 (the text 

message just quoted and an October 2019 request for pictures of Beth cannot 

reasonably be seen as such a “communication”). There is no basis to conclude 

that Kate’s allegations about April’s purported “complete control” and 

“unreasonable” decisions regarding visitation would permit a reasonable jury to 

return a verdict in Kate’s favor, and there is no genuine issue of fact as to this 

portion of Kate’s good cause defense. See B.P., 386 Wis. 2d 557, ¶46; see also

Schmidt, 305 Wis. 2d 538, ¶24.

¶27 Third, Kate alleges that she had good cause for failing to visit or 

communicate with Beth during the applicable time period because she attempted 
No. 2022AP1289

15

to terminate the Grandparents’ guardianship of Beth as it was her only option as a 

person of purportedly limited resources. Even when viewed most favorably to 

Kate, however, Kate’s attempt to obtain a termination of the guardianship does not

create a genuine issue of fact because no reasonable jury could return a verdict in 

Kate’s favor on her good cause defense based on those facts. See B.P., 386 Wis. 

2d 557, ¶46. Significantly, Kate does not explain how her actions in the 

guardianship proceeding prevented or interfered with her ability to visit or 

communicate with Beth (or communicate with the Grandparents about Beth). 

Kate’s only discernible explanation regarding a causal connection is a vague 

assertion that her actions in the guardianship proceedings are “relevant” to “factors 

beyond [Kate’s] control which prevented or interfered with visitation or 

communication.” Any possible inference or conclusion as to how these facts

affected Kate’s ability to visit or communicate with Beth for an entire year would 

be based on “sheer speculation.” See id. Therefore, Kate’s actions in the 

guardianship proceeding do not raise a genuine issue of material fact regarding her 

good faith defense.

12

¶28 Fourth, Kate relies on a portion of this court’s analysis in B.P. In 

that case, T.F. argued that she had good cause for failing to visit with her daughter 

because she testified that she was unable to obtain transportation to travel the over 

100-mile distance between her residence and her daughter’s placement. Id., ¶35. 

T.F. also testified that the Department wanted her to receive “services” before she 

 

12

 In her reply brief on appeal, and for the first time, Kate argues that the guardianship

court erroneously required Kate to pay outstanding guardian ad litem fees. I decline to consider 

this argument because it is undeveloped in that the order complained of was entered in an action 

separate from this case, and Kate did not appeal that decision in the separate guardianship action. 

See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (holding that this 

court may decline to address undeveloped arguments).
No. 2022AP1289

16

visited her daughter, but did not advise her of what those “services” entailed, and 

the Department failed to arrange for those to be provided. Id. This court stated 

that T.F.’s testimony created a genuine issue of material fact as to whether T.F. 

had good cause for failing to visit her daughter. Id., ¶36.

¶29 Kate argues that the facts concerning her good cause defense are “far 

more compelling” than the facts supporting T.F.’s good cause defense. I disagree. 

As explained above, Kate has not shown a genuine issue of material fact that April 

caused Kate to not visit or communicate with Beth, or that anyone caused Kate not 

to communicate with the Grandparents about Beth, for an entire year and, 

therefore, has not demonstrated that a jury could reasonably find that Kate’s

allegations about April’s actions constitute good cause. Also, Kate has not 

explained how her inability to obtain a termination of the Grandparents’

guardianship of Beth prevented her from visiting or communicating with Beth. 

Thus, this court’s holding regarding T.F.’s good cause defense in B.P. does not 

alter the conclusion that Kate has failed to demonstrate a genuine issue of fact as 

to her good cause defense.

¶30 Fifth, Kate argues that partial summary judgment should not have 

been granted because the circuit court “weighed the evidence” in evaluating her 

good cause defense. According to Kate, the circuit court “made its own 

determination about whether the facts alleged amounted to good cause,” not only 

because the court minimized Kate’s concerns about April’s supervision, but also 

because the court’s final order failed to apply the proper standard for summary 

judgment. This argument fails because this court’s review of the circuit court’s 

partial summary judgment ruling is de novo. L.L.N., 209 Wis. 2d at 682. I am not 

concluding that the circuit court erred in this regard but, even if it did, any such 

error makes no difference. This court does not give any deference to the circuit 
No. 2022AP1289

17

court’s reasons for granting or denying summary judgment and must 

independently decide whether the evidence presented by the parties demonstrates a 

“genuine issue as to any material fact” and whether “the moving party is entitled 

to a judgment as a matter of law.” WIS. STAT. § 802.08(2); Hall v. Turtle Lake 

Lions Club, 146 Wis. 2d 486, 487, 431 N.W.2d 696 (Ct. App. 1988) (“On review 

of a summary judgment, the court of appeals applies the same methodology as the 

trial court and no deference is paid to the decision of the trial court.”). Thus, this 

argument does not affect the conclusion that partial summary judgment was proper 

in these circumstances.

CONCLUSION

¶31 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.