Brandon S.S., In Interest of, 92-1076
| Citation | 507 N.W.2d 94,179 Wis.2d 114 |
| Decision Date | 03 November 1993 |
| Docket Number | No. 92-1076,92-1076 |
| Parties | In the Interest of BRANDON S.S., A child under the age of 18. DAVID S. and Geraldine S., Appellants, d Brandon S.S., Co-Appellant, v. LAURA S. and Michael R., Respondents. |
| Court | United States State Supreme Court of Wisconsin |
For the respondent, Laura S., there was a brief by Judith Sperling Newton, Carol M. Gapen and Stafford, Rosenbaum, Rieser & Hansen, Madison and oral argument by Judith S. Newton.
This is an appeal from orders of the Waupaca County Circuit Court, John P. Hoffmann, Circuit Judge, in a proceeding under sec. 48.837, Stats.1991-92, for termination of parental rights and placement of a child with nonrelatives for adoption. 1 By order dated March 20, 1992, the Waupaca county court terminated the parental rights of Laura S. and Michael R. to their son, Brandon S., and placed the child with nonrelatives for adoption. 2 By order dated April 13, 1992, the Waupaca county court denied the motion of David and Geraldine S., (Brandon's maternal birth grandparents), and Attorney Nancy C. Wettersten, Brandon's guardian ad litem appointed by the Dane county circuit court, 3 to intervene as parties in the Waupaca proceedings and to vacate the Waupaca county court's order of March 20, 1992.
The court of appeals certified the case to this court, 497 N.W.2d 133. Section 809.61, Stats.1991-92. 4 We vacate the March 20, 1992, and the April 13, 1992, orders of the Waupaca county circuit court and remand the cause for further proceedings consistent with this opinion.
This case involves proceedings under sec. 48.837 to terminate parental rights and approve a petition for adoption. Under sec. 48.837, the birth parents and the proposed adoptive parents may jointly petition for an adoptive placement to be approved by the circuit court. If the circuit court approves the adoptive placement, it then proceeds to the voluntary termination of parental rights.
In this case, the birth parents and proposed adoptive parents filed their petition under sec. 48.837 in Waupaca county circuit court. The grandparents had previously initiated an action for custody and visitation which was pending in the Dane county circuit court. According to the record, the Waupaca court was aware that the child had a longstanding relationship with the grandparents and that neither the grandparents nor the Dane county guardian ad litem had been notified of the proceedings or had been present at the hearing.
This case presents three questions: (1) Should the Dane county guardian ad litem have been served with a summons and a copy of the petition filed in the sec. 48.837, Stats.1991-92 "92, proceedings in Waupaca county circuit court and permitted to advocate, along with the Waupaca county guardian ad litem, for the best interests of the child in those proceedings? (2) Should Brandon's grandparents have been permitted to intervene as parties in the sec. 48.837 termination of parental rights and adoptive placement proceedings in the Waupaca county circuit court? (3) Under the circumstances of this case, did the Waupaca county circuit court erroneously exercise its discretion in terminating parental rights and in placing the child for adoption with nonrelatives under sec. 48.837 without giving the maternal birth grandparents an opportunity to be heard? 5
We conclude that the Dane county guardian ad litem should have been served with a summons and a copy of the petition filed in the sec. 48.837, Stats.1991-92, termination of parental rights and adoption placement proceedings in Waupaca county and should have been permitted to advocate for the best interests of the child in those proceedings. We conclude, as did the Waupaca county circuit court, that neither the grandparents nor the guardian ad litem should have been permitted to intervene as parties in the sec. 48.837 proceedings in the Waupaca county circuit court. We further conclude that, under the circumstances of this case, the Waupaca county circuit court erroneously exercised its discretion in deciding the best interests of Brandon without hearing and considering important relevant evidence that the maternal birth grandparents might have furnished about their longstanding relationship with Brandon and the harm to the child if the relationship were severed.
The facts are not in dispute for purposes of this appeal. Brandon was born July 30, 1989, to Laura S. and Michael R. Michael never had any contact with his son, but his paternity was adjudicated, and he appeared in Waupaca county circuit court to consent to the termination of his parental rights to Brandon.
In May 1990, Laura and Brandon moved back to her parents' home in Dane County. Although Brandon and his mother moved out of the grandparents' home in September 1990, Brandon continued to spend large blocks of time with his grandparents, including the weekends and several week-day overnights each week. Thus the grandparents cared for Brandon for more than 14 months.
Relations between Laura and her parents deteriorated, and in January, 1992, she severed all contact between her parents and Brandon, placing him in a 24-hour-a-day child care facility. Brandon was two and a half years old at this time.
On February 10, 1992, the grandparents filed an action in Dane county circuit court seeking custody and visitation of Brandon. Laura was served with the summons and petition for the Dane county action on February 11, 1992. In February 1992, Laura's attorney unsuccessfully sought to dismiss the Dane county action. The Dane county circuit court appointed Attorney Nancy Wettersten as guardian ad litem for Brandon on March 4, 1992, pursuant to sec. 767.045, Stats.1991-92.
On February 25, 1992, Laura initiated a proceeding in the Waupaca county circuit court, filing a petition (dated February 11, 1992) to terminate her parental rights in conjunction with a petition to place Brandon for adoption under sec. 48.837, Stats.1991-92. Waupaca county is the county of residence of the proposed adoptive parents Laura had selected. They were unrelated to her and were previously unknown to her.
In accordance with the procedures set forth in sec. 48.837, the Waupaca county circuit court scheduled a hearing and appointed a guardian ad litem for Brandon under sec. 48.235. When the hearing began on March 20, 1992, Laura's attorney informed the Waupaca court of the pending Dane county proceedings and of the Dane county guardian ad litem's intention to seek an injunction in Dane county to halt the Waupaca proceedings. The interest of Laura's family in regard to the proceedings was further evidenced when Laura's sister called the clerk of court's office to find out whether Laura was in court. Informed of the call and mindful of the confidentiality of the proceedings, the Waupaca court directed the clerk's office to say Laura was not there, even though she was present. Laura and the prospective adoptive parents were advised of the grandparents' petition for custody and visitation, the grandparents' attempts to stop the Waupaca county proceedings, and the possibility that litigation and appeals might delay the adoption process and increase its cost. Each decided to continue in the Waupaca court with the termination of parental rights and the adoptive placement.
The Waupaca court heard testimony from Laura, the proposed adoptive mother, a therapist who had seen Brandon and an adoption agency social worker. All discussed Brandon's grandparents in negative terms. Neither the grandparents nor proponents of the grandparents' position were given an opportunity to appear and be heard.
On March 20, 1992, the Waupaca county circuit court ordered termination of parental rights, appointed Community Adoption Center as guardian, and placed Brandon with the proposed adoptive parents.
On April 3, 1992, the Dane county guardian ad litem and the grandparents filed a motion in the Waupaca county circuit court to intervene in the proceedings and to vacate the Waupaca court's order terminating parental rights. On April 13, 1992, following a hearing, the Waupaca court denied the motion to intervene. The Waupaca court later stayed the adoption proceedings pending a ruling on appeal, but did not stay the order terminating parental rights. The Dane county guardian ad litem and the grandparents appealed the March 20 and April 13 orders, urging that the orders be vacated. This court accepted the court of appeals' certification of the case.
Brandon, through his guardians ad litem, is on both sides of this appeal. The Waupaca county guardian ad litem has joined in the position taken by Laura that the orders be affirmed. The Dane county guardian ad litem has filed a brief in this court urging that the Waupaca court's orders be vacated. Additional facts will be set forth in the opinion.
We first decide whether the Dane county guardian ad litem should have been served with a summons and petition in the Waupaca county circuit court proceedings for the termination of parental rights and adoptive placement of Brandon under sec. 48.837, Stats.1991-92. This is a question of statutory interpretation which we decide independently of the circuit court.
In a proceeding to terminate parental rights the petitioner must serve a summons and petition on, among others, the child's guardian ad litem. Section 48.42(2)(c), Stats.1991-92. The statutory reference to the guardian ad litem ordinarily signifies the guardian ad litem appointed in the termination of parental rights proceeding. In this case the Waupaca county circuit court appointed a guardian ad litem for Brandon. This guardian ad litem was served, appeared, and advised the Waupaca court that the termination of parental rights and adoptive placement were in Brandon's best interests.
The question here is whether the power of Brandon's Dane county guardian ad litem is limited to the Dane county proceeding or whether the Dane...
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