IN the MATTER OF the GUARDIANSHIP OF JENAE K. S.: HOWARD M., Appellant, v. JEAN R., Respondent.
No. 94-0955
Court of Appeals
July 6, 1995
539 N.W.2d 104
For the respondent the cause was submitted on the brief of Leon D. Stenz of O‘Melia, Schiek & McEldowney, S.C. of Crandon.
Before Dykman, Sundby, and Vergeront, JJ.
DYKMAN, J. Howard M. appeals from an order which terminates his guardianship of a child, Jenae K.S., and transfers her to the custody of her mother, Jean R. The first issue is the appropriate standard of review for deciding custody when a guardianship is terminated and a custody contest develops between the child‘s parent and a third party, in this case, the guardian. The second issue is whether sufficient evidence supported the trial court‘s finding that there were no compelling circumstances making it appropriate to award custody to a third party, Howard.
We conclude that when a guardianship is terminated, a parent is entitled to custody of a child unless the trial court finds that the parent is unfit or compelling reasons exist for awarding custody to a third party. We also conclude that the evidence was sufficient to support the trial court‘s finding that no compelling reasons existed for awarding custody of Jenae to Howard. We therefore affirm.
Though modification of custody determinations are reviewed for an erroneous exercise of discretion, In re Stephanie R.N., 174 Wis. 2d 745, 764-66, 498 N.W.2d 235, 241-42 (1993), this case does not involve a custody dispute between two parents, but between a parent and a third party. Whether a parent is “unfit” or whether “compelling reasons” exist to award custody to a third party is a mixed question of fact and law. We separate mixed questions of fact and law into two components, reviewing disputed issues of material fact under
BACKGROUND
On June 20, 1984, Jean gave birth to a daughter, Jenae. Jean was not married to Jenae‘s father, and never heard from him or saw him after she told him that she was pregnant. In 1985, Jean moved to Beaver Dam, Wisconsin. She relied upon her sister, Rita, and her sister‘s partner, Howard, for child care while she worked. Jenae resided with Howard and Rita during the weekdays and on some weekends.
In 1988, Jean and Jenae moved to Crandon, Wisconsin, to live with William R., but after a brief time, Jean returned Jenae to Howard. In 1989, Jean married William. Later that year, Jean petitioned the trial
The parties agree that Jean and Jenae maintained a relationship during Howard‘s guardianship although they differ as to the extent and quality of that relationship. Howard provided all of Jenae‘s financial support although Jean claims that she offered financial help which he refused.
In September 1992, Jean petitioned the trial court, asking that the guardianship be terminated. The court appointed a guardian ad litem, and Jean, Jenae and Howard underwent various psychological evaluations. The court held a hearing on Jean‘s petition in August 1993 at which Jean, Rita and Jenae testified. The record also contains the reports of several professionals. On March 1, 1994, the court determined that Jean was a fit parent and that no compelling reasons existed to award custody to Howard, a third party. Accordingly, it terminated the guardianship and transferred custody of Jenae to Jean. Howard appeals.
DECISION
Jean relies upon Barstad v. Frazier, 118 Wis. 2d 549, 568-69, 348 N.W.2d 479, 489 (1984), to support the trial court‘s order. In Barstad, the supreme court said:
We conclude that the rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persis-
tent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best interests of the children would be promoted thereby.
(Citation and footnote omitted.)
Howard asserts that Barstad involved an initial custody determination, not a reevaluation of custody as is involved in the instant case. He notes that
While neither this court nor the United States Supreme Court has ever addressed the specific question posed by this case, i.e., what the constitution requires in a custody dispute between a parent and a nonparent third party, a number of relevant principles emerge. On the one hand, “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State.” On the other hand, it is evident . . . that the assertion of parental rights is to some extent dependent on the assumption of parental responsibilities, and that the zone of constitutionally protected family autonomy is not defined solely by genetic ties. A biological parent who has never borne any significant responsibility for the child and who has not functioned as a member of the child‘s family unit is not entitled to the full constitutional protections.
Barstad, 118 Wis. 2d at 562-63, 348 N.W.2d at 486 (citations omitted).
The supreme court has recently reaffirmed Barstad. In In re H.S.H.-K., 193 Wis. 2d 649, 664-65, 533 N.W.2d 419, 423 (1995), a case involving, in part, a third-party request for custody, the supreme court con-
A person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is “unfit or unable to care for the child” or there are compelling reasons for awarding custody to a nonparent.
The constitutional underpinning of Barstad is the reason why we reject Howard‘s assertion that
While we agree with Howard that a failure to exercise parental responsibilities may result in the forfeiture of constitutional rights to custody or visita-
If Jean R. had assumed her parental responsibilities and raised her daughter Jenae as a member of her own household, there is no question that Jean would be permitted to continue to raise Jenae free of government interference. That didn‘t happen, however. Not only did Jean choose to have Jenae raised by Howard, but Jean herself invoked government “interference” by petitioning the Dodge County Circuit Court to appoint Howard as Jenae‘s guardian.
This is not an argument about the standard applicable for reviewing the instant case. It is an assertion that the facts of the case require a result different from that reached by the trial court. Howard does not challenge the court‘s finding that Jean is a fit parent. He claims, however, that there are compelling reasons to deny custody to Jean.
The trial court found that there were no compelling reasons to continue Jenae‘s custody with Howard. We may not upset the factual component of that finding unless it is clearly erroneous.
The record contains evidence that Jean maintained an interest in Jenae, though hampered by the demands of being a working single parent without a high school education. She worked a second shift which ended at 1:00 a.m. She agreed to the guardianship so
Jenae is not afraid to get close to Jean when they are alone together, but Jenae is afraid to show her love to Jean when Howard is present. Consequently, Jean and Jenae worked out a code so that Jenae could tell Jean that she loved her when Howard was present. When Jenae was interviewed by a psychologist in October 1992, she showed the psychologist a message on a chalkboard reading: “Dear Dr. Gina, I really want to live with my mom.” After the psychologist read the message, Jenae insisted on erasing it.
The facts of record from which the trial court concluded that there were no compelling circumstances to deny Jean custody of Jenae differ from the facts Howard has stressed in his brief. After hearing the evidence, the court might have concluded that Jean was the parent Howard asserts her to be. But it did not.
By the Court.—Order affirmed.
SUNDBY, J. (dissenting). Fortuitously, the Wisconsin Supreme Court has very recently cut the Gordian knot which has tied the hands of trial courts in resolving custody and physical placement disputes between biological parents and persons who have established a parent-relationship with a child. See In re H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995). The court decided that in this same-sex marriage, the biological mother had “exercised her constitutional rights to include another adult to act as a parent.” Id. at 694, 533 N.W.2d at 435. The court concluded that when the biological parent has permitted another adult to establish a parent-like relationship with his or her child, the court may exercise its equitable powers to protect the child‘s best interest by preserving the child‘s relationship with that adult.
This exercise of equitable power protects parental autonomy and constitutional rights by requiring that the parent-like relationship develop only with the consent and assistance of the biological or adoptive parent. It also protects a child‘s best interest by preserving the child‘s relationship with an adult who has been like a parent.
Id. at 696, 533 N.W.2d at 436.
In her petition to establish a guardianship over Jenae, Jean stated that Jenae was in need of a guardian for the following reasons: “The ward is a minor. I desire for the benefit of my child that my child be permitted to reside at this time with Howard [M.] . . . and it is necessary for him to be appointed legal guardian so he can properly care for my child at this time.” In its order appointing Howard as Jenae‘s guardian, entered September 12, 1989, the court found that Jenae was “a proper subject for guardianship” and Howard was “a competent and suitable person” to be appointed guardian of the person and estate of Jenae. The mother does not challenge these findings.
On September 14, 1992, the mother filed a petition for termination of Howard‘s guardianship of Jenae pursuant to
A “rehearing” usually follows close upon a decision entered after a hearing. A person who seeks a rehearing generally considers that the tribunal has reached the wrong result and seeks to correct the order or action of the tribunal. See
Child Protective Services filed a home study with the court. The worker reported that Jean had given birth to two other non-marital children that she gave up for adoption. In March 1988, the mother moved to
The mother married William October 28, 1989. The mother and William have been involved in Alcoholics Anonymous for eight years. William wishes to adopt Jenae. The mother informed the psychologist that Jenae was excited about having “two grandmas” and “two grandpas.” The worker concluded that the mother and William R. “appear to be loving and concerned ‘parents.‘”
Psychiatric Associates of Beaver Dam made a clinical examination of Jenae on November 10, 1992. The social worker found that Jenae would not benefit from a change of physical custody at this time. However, Jenae‘s mood was positive but with some mixed feelings respecting her mother‘s attempt to seek custody. She expressed her concerns “protective of her father and home.” The worker concluded:
It would seem more constructive for Jenae to continue to see her mother on a regular basis increasing the length of visits if all goes well. Jenae indicated that she would like to see her mother more often.
The social worker supported a slow reintegration process consistent with Jenae‘s protective feelings as to her “dad.” Dr. Koeppl supported Jenae‘s return to her mother as soon as deemed feasible by the therapist and the guardian ad litem. She agreed with Dr. Sionag Black‘s recommendation that Jenae be gradually reunified with her mother.
H.S.H.-K. confirms the opinion I expressed in my dissent to the certification of this case to the supreme court. I call particular attention to my discussion of In re Guardianship of Schmidt, 71 Wis. 2d 317, 237 N.W.2d 919 (1976). In Schmidt, the court first considered what standard governed its decision to choose as guardian the deceased mother‘s sister-in-law or the maternal grandparents. The court held:
The trial court aptly noted that the hearing was directed to a choice of a guardian; it was not a divorce custody or adoption hearing.
Sec. 880.09, Stats. , provides that in selecting a guardian:The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following: . . . .
The relevant factors include a preference for a minor‘s parent to be the guardian if “suitable and willing,” . . . .
Both parties appear to accept the standard of “the best interest of the child” as controlling here. We think the conclusion is inescapable that the best interests test be followed. Nothing in the guardianship section indicates otherwise, although preference is given to certain nominations. This test, however, does not consist of concentration solely on the objective factors to the exclusion of the rights, legal or moral, of parents. See
sec. 48.01(3), Stats. , cited in Adoption of Randolph (1975), 68 Wis. 2d 64, 77, 227 N.W.2d 634. It must be considered in the balance, as the child‘s best interest may direct that a relationship be allowed between the child and the natural parent or other close relative that is known to him.
Id. at 327-28, 237 N.W.2d at 924 (emphasis added).
Where the natural parent voluntarily petitions to name a guardian for his or her child, the custody change from the parent to a third party is not only consented to but advocated by the parent. That parent cannot expect that his or her constitutionally protected parental rights may be enforced with the same vigor as in the case of a dispute between the natural parent and a third party who seeks to usurp the parent‘s rights. Those rights, however, must be balanced in determining the child‘s best interest. Schmidt, 71 Wis. 2d at 328, 237 N.W.2d at 924-25.
H.S.H.-K. clarifies that one of a biological parent‘s constitutionally protected rights is the right to “allow another adult to develop a parent-like relationship with the child.” 193 Wis. 2d at 695 n.40, 533 N.W.2d at 436. The court stated that “on the basis of the record before us, a circuit court could find that Knott [the
We must reverse the judgment of the trial court. For the sake of all the parties, but especially Jenae‘s, we should conclude as a matter of law that Jenae‘s best interests would not be served by terminating the guardianship. A remand to the trial court will keep Jenae‘s status unsettled. We have previously noted that “[a] child‘s time is not an adult‘s time.” In re R.H., 147 Wis. 2d 22, 37, 433 N.W.2d 16, 22 (Ct. App. 1988) (quoting J.R. Milligan & E. Loth, Permanency Planning for Children (A New Ballgame in Appellate Courts), 4 APPELLATE COURT ADMINISTRATION REV. 37, 38 (1982-83)), aff‘d, 150 Wis. 2d 432, 441, 441 N.W.2d 233 (1989). “[To] avoid irreparable psychological injury, placement, whenever in dispute, must be treated as the emergency that it is for the child.” Id. (quoting J. GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 43 (1973)).
When the mother petitioned the circuit court to appoint Howard guardian of Jenae, she represented to the court that she sought the guardianship. I believe we can conclude as a matter of law that the mother has not shown that Jenae is not “a proper subject” to continue under guardianship; nor has she shown that Howard is not “a proper guardian” for Jenae. The mother seeks to terminate the guardianship simply because she now feels strong enough to re-establish a parental relationship with her daughter. I agree with Psychiatric Associates that that process should be slow and should consider Jenae‘s wish to protect Howard.
The equitable power which the H.S.H.-K. court has held a trial court may exercise to protect parental
As long as the guardianship continues, Howard will have “care, custody and control” of Jenae. See
For some time, the legislature and the courts pursued policies which tended to limit the child‘s family. Perhaps that trend can now be reversed if the equitable powers announced in H.S.H.-K. are exercised by trial courts to provide the child with as extended a family as may be consistent with the child‘s best interest. Biological parents and persons having a parent-like relationship with a child should cooperate so that the child is not forced to make “Sophie‘s choice.”