ANNA S. v. DIANA M., 02-2640.

• Decision Date: 22 January 2004
• Docket Number: No. 02-2640.,02-2640.
• Citation: 270 Wis.2d 411,678 N.W.2d 285,2004 WI App 45
• Parties: IN the MATTER OF the GUARDIANSHIP OF KEISHA M.S.: ANNA S., Petitioner-Respondent, v. DIANA M., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

270 Wis.2d 411

2004 WI App 45

678 N.W.2d 285

IN the MATTER OF the GUARDIANSHIP OF KEISHA M.S.: ANNA S., Petitioner-Respondent, v. DIANA M., Respondent-Appellant.

No. 02-2640.

Court of Appeals of Wisconsin.

Submitted on briefs September 8, 2003.

Decided January 22, 2004.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Leslie D. Shear, Frank J. Remington Center, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Dianne M. Soffa, Soffa & Devitt, LLC, Whitewater.

On behalf of the guardian ad litem, the cause was submitted on the brief of Christopher J. Rogers, Fort Atkinson.

Before Dykman, Vergeront and Higginbotham, JJ.

¶ 1. VERGERONT, J.

Diana M., the mother of Keisha M.S., appeals the circuit court's order appointing Anna S. as guardian of Keisha's person and estate rather than Diana's mother, Mary O. Diana contends the circuit court applied an incorrect legal standard because it failed to give the requisite weight to Diana's nomination of Mary as Keisha's guardian, and it erroneously viewed Anna as having been nominated as Keisha's guardian by Keisha's deceased father. We conclude the court applied the proper legal standard. We do not address Diana's contention that the court erred in failing to impose notice requirements under WIS. STAT. § 767.327 (2001-02)¹ related to Anna's ability to relocate with Keisha because Diana did not ask the court to impose these requirements. Accordingly, we affirm.

BACKGROUND

¶ 2. Keisha was born to Diana on April 24, 1995. Brian S. was adjudicated her father in a paternity action. During Keisha's first four years there were substantial periods of time when Keisha did not live with Diana because Diana was incarcerated. In an order entered on October 1, 1999, Brian, with whom Keisha was then living, was granted physical placement of Keisha, with Diana having the right to have Keisha visit her in prison once a month. Brian was granted sole legal custody of Keisha in all matters, except that Brian and Diana had joint legal custody in matters of religion and education. Subsequent orders permitted Brian to relocate to Illinois with Keisha. Keisha was living in Illinois with Brian, his wife, Anna S., and their child when Brian died in a work-related accident on October 19, 2001.

¶ 3. A few days after Brian's death, Diana initiated this action, asking that her mother, Mary, be appointed guardian of the person and the estate of Keisha because she, Diana, was incarcerated and unable to take custody of Keisha at that time. Anna filed a competing petition, requesting that she be appointed Keisha's guardian. By that time Anna had moved back to Wisconsin and Keisha was living with her.

¶ 4. In early December 2001, Diana asked that her petition be dismissed, because she anticipated being released from prison, and the court dismissed her petition. The court held a trial on Anna's petition, which Diana opposed. The trial was held over five days between February and June 2002. By the last day of the trial, Diana was again incarcerated and, accordingly, withdrew her objection to the appointment of a guardian for Keisha and stated her wish that her mother, Mary, be appointed. ¶ 5. In making its decision to appoint Anna rather than Mary as Keisha's guardian, the court observed that WIS. STAT. § 880.09 required it to consider nominations by any interested person, that Diana had nominated her mother and that the court considered that Brian, by his conduct before his death, had effectively nominated Anna. The court stated that the legal standard to be applied was Keisha's best interests. The court determined that contact between Diana and Keisha should be maintained and that contact would be enhanced if Mary were Keisha's guardian, but, the court stated, it did not view that as the highest goal, noting that Diana had been absent in Keisha's life because of her continuing criminal activity, self-centeredness, and addictions.

¶ 6. The court summarized the areas of strengths of Mary and of Anna and the concerns the court had with respect to each, indicating that it was a very close question which of the two would be a better guardian for Keisha. Ultimately, after taking into account the guardian ad litem's recommendation that Anna be the guardian, the court decided that Anna would provide more stability for Keisha than Mary would: Anna had cared for Keisha longer than any living person; she had purchased a home in Edgerton, the town where Keisha had lived during her preschool years; and Anna had represented that she would not take outside employment for some time, thus being able to provide constant care for Keisha as well as Anna's and Brian's two children, who were close in age to Keisha. In addition, the court was concerned that Mary's loyalty to her daughter, Diana, had resulted in some decisions that were not based on Keisha's best interests. While appointing Anna as the guardian and her home as Keisha's primary residence, the court granted substantial placement with Mary, with the understanding that Mary would take Keisha to see her mother where she was incarcerated.

DISCUSSION

[1-3]

¶ 7. The parties agree that the circuit court's decision on guardianship and placement involves a determination of Keisha's best interests, and that this determination is committed to the trial court's discretion. See Brezinski v. Barkholtz, 71 Wis. 2d 317, 327-28, 237 N.W.2d 919 (1976). We affirm discretionary decisions if the circuit court applies the proper legal standard to the relevant facts and uses a rational process to reach a reasonable result. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Whether the circuit court applied the correct legal standard in exercising its discretion presents a question of law, which we review de novo. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999).

¶ 8. Diana makes two challenges to the legal standard applied by the court: first, the court did not give the weight to Diana's nomination of a guardian that is required by WIS. STAT. § 880.09 and by the United States Constitution, and, second, the court treated Anna's petition to be appointed as guardian as a nomination by Brian.

[4]

¶ 9. Regarding the proper weight to be applied to Diana's nomination of her mother, Diana contends that WIS. STAT. § 880.09 and the United States Constitution require the circuit court to give a preference to Diana's nomination over other nominations, which the circuit court did not do. Section 880.09 provides: "The court shall consider nominations by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following," and then lists a number of factors.² Diana relies on § 880.09(2) and (4), which provide:

(2) PREFERENCE. If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under s. 880.35 only if no suitable individual guardian is available.

....

(4) GUARDIAN OF THE PERSON NOMINATED BY WILL. Subject to the rights of a surviving parent, a parent may by will nominate a guardian of the person of his or her minor child.

According to Diana, it is implicit in these two provisions that the court must give a preference to a surviving parent's nomination of a guardian, and that is how "due regard" should be interpreted. This result is constitutionally required, Diana asserts, because a parent has a fundamental interest in the care and custody of her child, and from that necessarily flows the presumption that the decision of a parent who has not been declared unfit is in the child's best interests. [5]

¶ 10. We address first the proper construction of WIS. STAT. § 880.09. In construing a statute, we begin with the language of the statute, and, if that is plain, we apply that language to the facts at hand. F.R., 225 Wis. 2d at 638.

¶ 11. We agree with Anna and the guardian ad litem that the plain language of WIS. STAT. § 880.09 does not require the court to give a preference to a parent's nomination of a guardian. The preference provided for in § 880.09(2) is for a parent who is suitable and willing to be appointed as a guardian; that subsection does not address a parent's wishes for another to act as guardian when the parent is not suitable to act as guardian. There is no dispute that Diana is not suitable to act as guardian because of her incarceration and, therefore, this subsection does not apply. Section 880.09(4) does not address the surviving parent's wish that another person act as guardian, and, in any event, does not direct the court to prefer a deceased parent's testamentary nomination.

¶ 12. We also agree with Anna and the guardian ad litem that Brezinski supports their position that the circuit court was not required to give a preference to Diana's nomination. In that case, the father of the children, who was incarcerated for the murder of their mother, requested that his sister and her husband be appointed their guardians. 71 Wis. 2d at 319. The circuit court appointed the father's sister and her husband, rather than the children's maternal grandparents, and made the comment that the father's nomination should carry "`some weight.'" Id. at 324-25. The grandparents appealed, contending that the father's nomination should have carried no weight because he stipulated he was unsuitable as a guardian due to his incarceration. Id. at 325. The supreme court rejected this contention, first explaining that "unsuitability" as a guardian was not the same as unfitness as a parent and then stating:

If a parent is found unfit to be a guardian, a more precise determination than the statutory requirement of "unsuitable," there may be a basis for ruling error in considering his recommendation. The more correct

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