C.G.F., Matter of

• Decision Date: 07 May 1992
• Docket Number: No. 91-0293-FT,91-0293-FT
• Citation: 168 Wis.2d 62,483 N.W.2d 803
• Parties: In the Matter of the Grandparental Visitation of C.G.F. H.F. and F.F., Appellants-Petitioners, v. T.F. and D.L., Respondents. d
• Court: Wisconsin Supreme Court

Page 803

483 N.W.2d 803

168 Wis.2d 62

In the Matter of the Grandparental Visitation of C.G.F. H.F. and F.F., Appellants-Petitioners, v. T.F. and D.L., Respondents. ^d

No. 91-0293-FT.

Supreme Court of Wisconsin.

Argued March 23, 1992.

Decided May 7, 1992.

For the appellants-petitioners there were briefs by Randall E. Rhode, and Rhode Law Office, Portage and oral argument by Randall E. Rhode.

For the respondents there was a brief by Barbara S. Hughes and Stolper, Koritzinsky, Brewster & Neider, S.C., Madison and oral argument by Ms. Hughes.

STEINMETZ, Justice.

The issue in this case is whether a trial court can award visitation rights to grandparents under sec. 880.155, Stats., notwithstanding the child's adoption by a stepparent. ¹ The circuit court for Sauk county Honorable James Evenson, judge, concluded that it was in the best interest of the minor child to have visitation with her paternal grandparents. The court included a provision, however, which stated that the order would have no force or effect in the event the child's stepfather adopted her.

Following the adoption of the child, the grandparents appealed the contingent termination provision created by the circuit court's order. In an unpublished opinion, the court of appeals affirmed the circuit court's decision. 163 Wis.2d 1094, 474 N.W.2d 530. The appellate court reasoned that "[a]fter adoption, the stepfather and the mother possess all of the rights of the child's natural parents, including the right to determine whether a relationship with the grandparents is in the child's best interest." We disagree with the court of appeals and reverse its decision. We hold in favor of the grandparents' cause and disregard the contingency provision in the circuit court's order.

The application of a statute to a particular set of facts is a question of law which this court reviews without deference to a lower court's determination. State ex rel. Stedman v. Rohner, 149 Wis.2d 146, 150, 438 N.W.2d 585 (1989).

The facts are as follows. The biological father of minor child C.G.F. died on January 15, 1988. The deceased father was the son of H.F. and F.F., who are the grandparents and appellants in this case. The child continued to live with her mother, T.F., after her father died, and the grandparents were allowed to visit their granddaughter on a regular basis. However, the number of times the grandparents were permitted to see their grandchild gradually decreased until ultimately, they were not allowed to see their grandchild at all. The mother remarried on September 6, 1990, and the child's stepfather, D.L., commenced adoption proceedings shortly thereafter.

The grandparents petitioned the circuit court for grandparent visitation pursuant to sec. 880.155, Stats. An evidentiary hearing was held on October 9, 1990. ² The court entered a detailed order setting forth the grandparents' visitation rights. The court included a contingency provision in the order stating that if the stepparent's adoption of the child was granted, the court's grandparent visitation order would be of no force or effect. Judge Evenson reasoned: "[T]he completion of the adoption proceedings vests with the parents the determination relating to grandparent visitation." The judge noted, however, that even if the order becomes moot due to adoption, it "does not change the prior Finding of Fact by the Court that such visitation is in the best interest of the child."

The court of appeals relied on In re Marriage of Soergel, 154 Wis.2d 564, 453 N.W.2d 624 (1990) in upholding the trial court's decision. In Soergel, the biological parents divorced and the father voluntarily terminated his parental rights to his minor child. The mother remarried and her new husband adopted the minor child. The grandparents were not permitted to see their grandchild after the biological father terminated his parental rights and the stepfather adopted the child.

The grandparents in Soergel petitioned for visitation pursuant to sec. 767.245(4), Stats. 1985-86. The circuit court denied the grandparents visitation. After granting certification, this court upheld the circuit court's decision.

After reviewing the Wisconsin legislative history concerning visitation and adoption law, the court concluded that it was not the intent of the legislature to allow visitation under the circumstances found in Soergel. Reading sec. 767.245 with sec. 48.92(1) and (2), it said: "Adoption thus has the effect of severing all rights of the adopted child's birth family to the child," and, therefore, to allow the grandparents to have visitation rights with their grandchild "would be at odds with the adoption statute's purpose of severing all rights of [the natural father] and his family." Id. at 573-74, 453 N.W.2d 624. Furthermore, we reasoned that the stepfather's adoption of the minor child "established a status between himself and the child that is identical to the status that exists between a natural parent and his or her child." Id. at 574, 453 N.W.2d 624. The court therefore concluded that the stepfather and the biological mother had the right to decide whether it is in the best interest of the child to see his/her grandparents.

In the present case, the court of appeals arrived at its holding by applying similar reasoning. It held that: "Section 48.92(1) and (2), Stats., severs all rights of the adopted child's birth family to the child upon the child's adoption" and, as a result, "[a]doption, in effect, terminates the grandparents' status as grandparents."

We conclude that the court of appeals incorrectly relied on Soergel and therefore reverse the court of appeals decision. There are important factual distinctions between the present case and Soergel rendering the logical underpinnings of Soergel inapplicable to this case which are set forth below.

First, we find a clear distinction between the father's termination of parental rights in the Soergel case and the severing of the father's rights in the present case. In Soergel, the child's natural father willfully terminated his parental rights by going through a legal process. In the present case, the father's death severed his rights. Wisconsin law defines parent as "either a biological parent ... or a parent by adoption...." See 48.02(13). Moreover, it is recognized that " '[p]arent' does not include any person whose parental rights have been terminated." Id. The father who terminated his parental rights in Soergel is no longer legally considered a parent. In contrast, despite the fact the father in the present case is dead, he nevertheless falls within the definition of a parent. Since the deceased father continues to be considered a parent, we find his parents should continue to be considered grandparents.

A second differentiating factor between Soergel and the present case is that the grandparents in Soergel petitioned for visitation pursuant to sec. 767.245(4), Stats. The grandparents in the present case, on the other hand, petitioned for visitation pursuant to sec. 880.155. Section 880.155 is a very narrow statute which affords visitation to only a limited class of persons, i.e., grandparents of a child whose parent is deceased. It is further limited by a requirement that visitation be granted only if the court determines that visitation is in the best interest of the child. In contrast, under the statute applied in Soergel, ch. 767, visitation rights are afforded to grandparents, great-grandparents, stepparents, or others who have had a relationship similar to a parent-child relationship with the minor child. ³ We find the holding in Soergel was limited to grandparent petitions made pursuant to ch. 767 and cannot be applied to petitions made pursuant to sec. 880.155.

Another important distinction between Soergel and the present case is that the Soergel majority relied heavily on Estate of Topel, 32 Wis.2d 223, 145 N.W.2d 162 (1966), as support for the proposition that adoption completely terminates the relationship between an adopted child and his birth parents' family. In Topel the court concluded that sec. 48.92(1) and (2), Stats., prevented children from inheriting via intestate succession from the grandfather's estate.

There is no exception in the present statute to this complete substitution of adoptive relationship for the natural relationship. We think the intent of sec. 48.92, Stats., from its language is to effect upon adoption a complete substitution of rights, duties, and other legal consequences of the natural relation of child and parent and kin with those same rights, duties, and legal consequences between the adopted person and the adoptive parents and kin.

Topel, 32 Wis.2d at 227, 145 N.W.2d 162.

Since the Topel decision, the legislature has evidenced an intent to maintain ties between a child adopted by a stepparent and the child's biological grandparents by creating an exception to secs. 48.92(1) and (2), Stats., through the enactment of sec. 48.92(3). ⁴ When reading the latter in conjunction with sec. 851.51, sec. 48.92(3) allows intestate inheritance rights to exist between a child and his birth parent's family after the birth parent's death and the child's subsequent stepparent adoption. ⁵ Pursuant to sec. 851.51, a child can inherit by intestate succession through both the birth parents' family and the adoptive parent's family. That section creates rights not just for the child but also for the biological grandparents. In pertinent part, it states: "[T]he child is treated as the child of the deceased natural parent ... for purposes of any statute conferring rights upon ... relatives of that parent under the law of intestate succession or wills." Section 851.51(2)(b). Not only could the grandchild in this case inherit from the grandparents, but they could inherit theoretically, via intestate succession, from her. Thus, sec. 851.51 creates an exception to sec. 48.92 which allows an economic relationship to continue between an...