Adoption of R. P. R., Matter of

• Decision Date: 12 March 1980
• Docket Number: No. 79-1875,79-1875
• Parties: In the Matter of the Adoption of R. P. R. Ronald and Margaret BRANDT, Appellants, v. Patricia RIORDAN, Respondent. *
• Court: Wisconsin Court of Appeals

Page 591

291 N.W.2d 591

95 Wis.2d 573

In the Matter of the Adoption of R. P. R. Ronald and Margaret BRANDT, Appellants, v. Patricia RIORDAN, Respondent. ^*

No. 79-1875.

Court of Appeals of Wisconsin.

Argued Jan. 23, 1980.

Opinion Released March 12, 1980.

Opinion Filed March 12, 1980.

Review Granted.

Stephen W. Hayes, Milwaukee, for appellants; von Briesen & Redmond, S. C., and Dale P. Gerdes and Gutknecht & Gerdes, co-counsel, Milwaukee, on brief.

Stanley F. Hack, Milwaukee, guardian ad litem.

David L. Walther, Milwaukee, for respondent; John Sundquist and Walther & Halling, Milwaukee, on brief.

Before DECKER, C. J., MOSER, P. J., and BROWN, J.

BROWN, Judge.

This is an appeal from an order of the trial court awarding custody of R.P.R., an infant, to the respondent Patricia Riordan, the biological mother. Ronald and Margaret Brandt, the adoptive parents of R.P.R., seek to reverse the trial court's order due to abuse of discretion. The trial court based its decision, in part, upon a presumption in favor of the natural parent and, in part, upon a finding that there was sufficient evidence adduced by Ms. Riordan to show that the best interests of the child would be furthered by giving the child back to her. Because we find that the trial court erred in interpreting the law as giving a presumption to the natural mother and also erred in finding sufficient evidence that the natural mother had met her burden, we reverse.

Ms. Riordan, while pregnant and unmarried, consulted Catholic Social Services concerning possible adoption of the child. The child was born on January 21, 1979. It was immediately placed in a foster home by Catholic Social Services. The foster-home placement was for a period of six weeks and was to precede the beginning of the adoption procedure.

On February 19, 1979, Patricia Riordan telephoned Margaret Brandt and asked her if the Brandts would be interested in an independent adoption of R.P.R. Riordan and Margaret Brandt had been coemployees. The record indicates that Mrs. Brandt knew of Ms. Riordan's pregnancy and that Ms. Riordan knew of the Brandts' desire to adopt a child. There is testimony in the record that Ms. Riordan was interested in placing the child with the Brandts because she was impressed with the Brandts' intellectual, moral and personal life and felt that the child would be brought up in a good home environment. The testimony also indicates that prior to the birth of the child, Mrs. Brandt and Ms. Riordan had extended conversations concerning the pregnancy and the possible effect of the pregnancy on Ms. Riordan's employment, family and personal well-being. Mrs. Brandt had also visited Ms. Riordan in the hospital at the time of R.P.R.'s birth.

The Brandts consulted with Ms. Riordan, and the decision was made to proceed with the independent adoption of R.P.R. by the Brandts. On March 7, 1979, Patricia Riordan, in cooperation with the Catholic Social Services, transferred physical custody of R.P.R. to the Brandts. On March 14, 1979 pursuant to secs. 48.84(1)(a) and (2)(a), Stats., a hearing was held to execute the written consent of the parents to termination of the parental rights. The written consent was signed by Ms. Riordan and the natural father. The trial court explained the nature of the consent: "You understand that this consent when given is irrevocable, when the child is adopted you can't change your mind?" (Riordan testified at the later revocation hearing that she understood the trial court to mean that her consent was irrevocable only after the entry of the adoption order which would take place six months following preadoption residence according to sec. 48.90, Stats.)

On June 12, 1979, on the advice of her fiance Lawrence Witzling, Ms. Riordan commenced treatment sessions with a psychiatrist. At this time, Ms. Riordan exhibited strong feelings of ambivalence concerning the adoption of R.P.R. On August 1, 1979, she moved to revoke her consent to the adoption and to gain custody of R.P.R. The hearing and the trial court's granting of the motion for revocation of consent to adoption and awarding custody of R.P.R. to Ms. Riordan followed.

I. BEST INTERESTS OF THE CHILD

The Brandts, at the revocation hearing and during oral arguments on appeal, have attempted to establish the moral unfitness of Ms. Riordan to act as R.P.R.'s parent. They have argued that Ms. Riordan's consent to adoption represents a rejection of R.P.R., and she should not now be allowed to retract that rejection.

The psychiatric and psychological testimony offered at the revocation hearing, on the other hand, establishes that the Brandts and Ms. Riordan and her fiance, Larry Witzling, would be suitable and competent parents. The trial court made that finding as a matter of fact. This court does not question that finding. So far as this case is concerned, both Ms. Riordan and the Brandts are presumed in law to be fit as parents. We are not willing to engage in a pure weighing process of the physical, social and cultural benefits of R.P.R. residing with one set of parents as opposed to the other. We feel that Ms. Riordan's act of consenting to the adoption of R.P.R. was motivated by her love and affection for the child and her belief, at that time, that the consent was in the best interests of the child. We therefore specifically do not adopt the Brandts' argument that their home would be better than the home of the natural mother.

The issue here is not fitness to act as parents. Wisconsin, like the majority of jurisdictions, has long recognized that in adoption proceedings the paramount consideration is the best interests of the child. ¹ While the interests of a parent or parents are not irrelevant, where the parent's interest and the child's interest conflict, the child's interest must control. ² The issue, then, is not which parent is more fit but rather how "the best interests of the child will be furthered." In this context, we examine the record to see if Ms. Riordan brought forth sufficient competent evidence to satisfy her burden of proof under sec. 48.86, Stats., "that the best interests of the child (would) be furthered" by allowing her to revoke her consent to adopt.

II. THE TRIAL COURT'S DECISION

Section 48.84(2)(a), Stats., provides in pertinent part that, once given, consent to adopt is "irrevocable, except as provided in s. 48.86 . . . ." Section 48.86 provides:

48.86 Withdrawal of Consent. Withdrawal of any consent filed in connection with a petition for adoption hereunder shall not be permitted, except that the court, after notice and opportunity to be heard is given to the petitioner in the adoption proceedings, to the person seeking to withdraw consent and to any agency participating in the adoption proceedings, may, if it finds that the best interests of the child will be furthered thereby, issue a written order permitting the withdrawal of such consent. The entry of any order of adoption renders any consent irrevocable.

In finding sufficient evidence to allow Ms. Riordan to withdraw her consent to adopt, the trial court first explained that a presumption exists on behalf of the biological or natural parent in adoption proceedings. This presumption, coupled with the testimony at trial, including expert psychological testimony, served as the basis for the trial court's decision. The trial court's finding of a presumption favoring natural parents will be examined first.

A. The Natural Parent's Presumption

The trial court relied on Wisconsin case law for precedential support in finding a presumption in favor of the natural parents. The court placed primary reliance upon State ex rel. Lewis v. Lutheran Social Services, 59 Wis.2d 1, 207 N.W.2d 826 (1973). In State ex rel. Lewis, the supreme court dealt with the question of whether the custody rights of the putative father of an illegitimate child could be terminated without notice and opportunity to be heard. ³ The court held that the notice requirement for termination of parental rights of the putative father of an illegitimate child should be the same as the notice requirement for termination of any other parental rights.

The majority opinion made reference to the dissent in that case stating:

The dissent expressly refuses to recognize that the bond of nature between a parent and a child born out of wedlock should not be less protected by law "simply because her natural father has not married her mother." . . . It likewise ignores consideration of the presumption that as between a natural parent and a third party, the "best interests of the child" lie with the natural parents' exercise of custodial rights. State ex rel. Lewis v. Lutheran Social Services, supra, at 12-13, 207 N.W.2d at 832.

The trial court relied in part upon that quotation to support its "natural parent's presumption."

While on its face, the language from State ex rel. Lewis lends itself to such an interpretation, this court is convinced that no such presumption is operative under Wisconsin law. The State ex rel. Lewis court was not directly deciding a biological versus adoptive parental rights conflict, but only whether the petitioner's rights as a biological parent should be terminated without affording him due process of law. State ex rel. Lewis v. Lutheran Social Services, supra, at 10, 207 N.W.2d at 831. Therefore, the reference to the presumption in the State ex rel. Lewis majority while commenting upon the dissent is without controlling effect in this case.

Moreover, because the State ex rel. Lewis court was deciding the right of the putative father as of the date of the initial judgment, the court expressly refused to consider the effect on the child of changing its parental status:

We consider the argument that a parent is unable to adequately care for the child if the child's welfare would be harmed by uprooting its present custody to be inapplicable because the child on November 11, 1969 (the date of the initial judgment), had only...