Angel Lace M., In Interest of

• Decision Date: 08 June 1994
• Docket Number: Nos. 92-1369,92-1370,s. 92-1369
• Citation: 516 N.W.2d 678,184 Wis.2d 492
• Parties: In The Interest of ANGEL LACE M., a Child under the Age of 18 (Two Cases). GEORGINA G., Petitioner-Appellant, d v. TERRY M., Respondent. ANNETTE G., Petitioner-Appellant,d v. TERRY M., Respondent.
• Court: Wisconsin Supreme Court

Page 678

516 N.W.2d 678

184 Wis.2d 492

In The Interest of ANGEL LACE M., a Child under the Age of

18 (Two Cases).

GEORGINA G., Petitioner-Appellant, ^d v. TERRY M., Respondent.

ANNETTE G., Petitioner-Appellant,d v. TERRY M., Respondent.

Nos. 92-1369, 92-1370.

Supreme Court of Wisconsin.

Argued March 2, 1994.

Decided June 8, 1994.

Amicus curiae briefs were filed (in supreme court and court of appeals) by Barbara J. Becker, Margaret H. Schulz and Becker & Schulz, S.C., Milwaukee, for American Civil Liberties Union of WI Foundation.

Amicus curiae brief was filed by Karen M. McGaffey, Beth S. Ginsberg and Bogle & Gates, Annette L. Hayes and Heller, Ehrman, White & McAuliffe, Seattle, WA and Abby Abinanti and Nat. Center for Lesbian Rights, San Francisco, CA, and Leslie D. Shear, Madison, for Nat. Center for Lesbian Rights, Lambda Legal Defense and Educ. Fund, Inc., Gay and Lesbian Advocates and Defenders, and Northwest Women's Law Center.

For the respondent-designate there was a brief filed by John S. Skilton, Roberta F. Howell, Amy E. Dombrowski and Foley & Lardner, Madison, and oral argument by John S. Skilton.

STEINMETZ, Justice.

This case presents the following issues for review:

(1) Do the Wisconsin adoption statutes permit a third party to adopt the minor child of the third party's nonmarital partner?

(2) If the Wisconsin adoption statutes prohibit this adoption from taking place, do these statutes violate the constitutional rights of either the minor child or the third party?

On February 17, 1992, Annette G. filed a petition to adopt Angel Lace M., the daughter of Annette's partner, Georgina G. The circuit court for Brown County, the Honorable Richard J. Dietz, denied the petition by order dated April 9, 1992. The court of appeals certified the appeal for review by this court. We now affirm the order of the circuit court. We hold that this adoption is not permissible under ch. 48, Stats. We further hold that the relevant provisions of ch. 48 do not violate the constitutional rights of either the minor child or the third party.

Angel was born on March 10, 1986. On September 20, 1988, Georgina and Terry M. adopted Angel. Georgina and Terry were married at the time of the adoption. They separated in February, 1990, and divorced in June of that same year. Aside from paying court-ordered child support, Terry has played no part in Angel's life since late 1990.

In June, 1990, Georgina and Angel began living with Annette. The two women have shared equally in raising Angel since that time. Georgina and Annette symbolically solemnized their commitment to each other by partaking in a marriage-like ceremony in Milwaukee on August 11, 1991. ¹

On February 17, 1992, Annette filed a petition in the Brown county circuit court to adopt Angel. Simultaneously, Georgina filed a petition to terminate Terry's parental rights and a petition for the adoptive placement of Angel with Annette. No party filed a petition to terminate Georgina's parental rights.

Judge Dietz held a hearing on the various petitions on March 25, 1992. At the hearing, Terry signed a statement consenting to the termination of his parental rights and testified that his consent was both voluntary and knowing. The Community Adoption Center filed a report with the court recommending the adoption. In addition, a social worker from the center testified at the hearing that the termination of Terry's parental rights and the adoption of Angel by Annette would be in Angel's best interests.

Based on the testimony and other evidence presented at the hearing, the circuit court determined that the proposed adoption would be in Angel's best interests. However, the court also determined that pursuant to ch. 48, Stats., Annette is not competent to adopt Angel and Angel is not competent to be adopted by Annette. Hence, the court denied each of the petitions by order dated April 9, 1992.

Annette and Georgina appealed the circuit court's order. The court of appeals certified the appeal for review by this court. We accepted the certification and now affirm the order of the circuit court. ²

The petitioners argue that the circuit court should have granted Annette's petition for adoption because the court found that the adoption is in Angel's best interests. See sec. 48.01(2), Stats. ³ There is no doubt that a court must find that an adoption is in the best interests of the child before the court may grant the petition for adoption. However, the fact that an adoption--or any other action affecting a child--is in the child's best interests, by itself, does not authorize a court to grant the adoption. This court recognized as much in the context of child custody. In In re Marriage of Groh v. Groh, 110 Wis.2d 117, 126, 327 N.W.2d 655 (1983), we rejected the argument that a trial court is entitled to impose any conditions on custody as long as the custody order is in the best interests of the child:

If the trial court had the power to make any order it pleased so long as the order could somehow be justified by recitation of the rubric 'in the best interests of the children,' the limits the legislature placed on the court's exercise of power in custody matters would be meaningless. Legal custody is subject to the provisions of court orders as sec. 48.02(12), Stats., states. However, it is subject only to orders that the court is empowered to make.

Were we to allow a court to grant an adoption petition any time the adoption is in the best interests of the child, there would be no need for the plethora of adoption statutes other than sec. 48.01(2), Stats. "[A] statute should not be construed so as to render any portion or word surplusage." State v. Ross, 73 Wis.2d 1, 5, 242 N.W.2d 210 (1976). The petitioners' argument--that a court should grant a petition for adoption as long as it is in the child's best interests--would render several sections of ch. 48 surplusage. Hence, we reject this argument.

"[B]efore a court may make a finding that a second parent adoption is in a child's best interests, it must first determine whether it has the power to grant such an adoption under the existing adoption statutes." Emily C. Patt, Second Parent Adoption: When Crossing the Marital Barrier is in a Child's Best Interests, 3 Berkeley Women's L.J. 96, 111 (1987-88) (citing ch. 48, Stats. "Adoption proceedings, unknown at common law, are of statutory origin and the essential statutory requirements must be substantially met to validate the proceedings." Estate of Topel, 32 Wis.2d 223, 229, 145 N.W.2d 162 (1966). Accordingly, before we apply the best interests standard in this case, we must determine whether Annette's proposed adoption of Angel satisfies the statutory requirements for adoption.

In Wisconsin, the requirements for adoption are found in ch. 48, Stats. We therefore apply the relevant provisions of ch. 48 to the proposed adoption. The application of a statute to a given set of facts is a question of law. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673 (1985). Hence, we need not give deference to the decisions of the trial court. Id. Our purpose in interpreting a statute is to give effect to the intent of the legislature, with the plain language of the statute acting as our primary guide. Id.

Section 48.82, Stats., ⁴ controls who may adopt a minor. A party petitioning to adopt a minor must satisfy two requirements. First, the party must be a resident of Wisconsin. Annette satisfies this first requirement. Second, the party must fit the description from either sec. 48.82(1)(a) or sec. 48.82(1)(b). Annette does not qualify under sec. 48.82(1)(a) because she is not legally "the husband or wife" of Georgina who is the "parent of the minor." However, Annette does fit the description in sec. 48.82(1)(b) because she is "[a]n unmarried adult."

For the adoption to be valid, not only must Annette qualify as a party who may adopt Angel, but Angel must also be eligible for adoption. Section 48.81, Stats., ⁵ controls who may be adopted. A minor must also satisfy two requirements to be eligible for adoption. Angel satisfies the first requirement of the statute because she was present in the state of Wisconsin at the time Annette filed the petition for adoption. See sec. 48.81(2). It is less clear whether Angel satisfies the second requirement. Pursuant to sec. 48.81(1), a minor may only be adopted if her "parental rights have been terminated...." ⁶ Angel's adoptive father, Terry, has consented to the termination of his parental rights. Georgina's parental rights, on the other hand, remain intact.

The petitioners claim that sec. 48.81(1), Stats., is ambiguous. According to the petitioners, the statute could mean that Angel is eligible for adoption only if the rights of both of her parents have been terminated. Or, it could mean that she is eligible for adoption as long as the rights of at least one of her parents have been terminated. The petitioners ask this court to construe the statute liberally to further the best interests of Angel, pursuant to sec. 48.01(2), and accept the second interpretation of the statute.

Under this second interpretation of the statute--that a minor is eligible for adoption as long as the rights of at least one of her parents have been terminated--a minor would be eligible for adoption when the rights of only one of her parents are terminated. The minor would be eligible to be adopted even if the remaining parent is legally fit to raise the child alone and prefers to raise the child alone. Ostensibly, a complete stranger could petition to adopt a minor who is a member of this stable family; and, at least pursuant to sec. 48.81, Stats., the proposed adoption would be permissible. The legislature could not have intended to declare a minor eligible for adoption under those circumstances. This would be an absurd result. ^{7 7} This court will not construe a statute so as to work absurd or unreasonable results. Estate of Evans, 28 Wis.2d...