Termination of Parental Rights – Issues of Material Fact

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WI Court of Appeals – District III

Case Name: Kewaunee County Department of Human Services v. R.I.

Case No.: 2017AP1697

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Termination of Parental Rights – Issues of Material Fact

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

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)1. 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.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.