Guardianship of Schmidt, In re, 624

• Decision Date: 03 February 1976
• Docket Number: No. 624,624
• Citation: 237 N.W.2d 919,71 Wis.2d 317
• Parties: In re GUARDIANSHIP OF Angela C. SCHMIDT et al., minors. Anton Edward BREZINSKI and Jessie Adeline Brezinski, Appellants, v. Joan S. BARKHOLTZ et al., Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 919

237 N.W.2d 919

71 Wis.2d 317

In re GUARDIANSHIP OF Angela C. SCHMIDT et al., minors.

Anton Edward BREZINSKI and Jessie Adeline Brezinski, Appellants, v. Joan S. BARKHOLTZ et al., Respondents.

No. 624 (1974).

Supreme Court of Wisconsin.

Argued Jan. 6, 1976.

Decided Feb. 3, 1976.

Brief by: Jeffrey F. Snyder, Neenah, argued by: Jeffrey F. Snyder, Neenah, for appellants.

Brief by: Sigman, Shiff, Janssen & Zoesch, Appleton, for respondents, Joan S. Barkholtz and Harry M. Barkholtz, Jr., guardians; argued by: Thomas J. Janssen, Appleton.

HANLEY, Justice.

Three issues are presented on this appeal:

1. Did the trial court abuse its discretion in denying the appellants' motion for continuance?

2. Did the trial court erroneously accord substantial weight to the natural father's nomination of a guardian in reaching a decision?

3. Was the trial court's choice of guardians an abuse of discretion as contrary to the great weight and clear preponderance of the evidence concerning the best interests of the children?

Denial of Continuance

It is a long-established principle in Wisconsin that the grant or refusal of a continuance is a matter within the discretion of the trial judge. Knox v. Arnold (1853), 1 Wis. 70, 74-75; Cottrell v. Giltner (1856), 5 Wis. 270, 274. A decision on a motion for a continuance will be set aside only if these is evidence of an abuse of discretion. Estate of Hatten (1940), 233 Wis. 256, 263, 289 N.W. 630.

In Page v. American Family Mut. Ins. Co. (1969), 42 Wis.2d 671, 168 N.W.2d 65, these guidelines were reaffirmed and applied to the current statutory provision on continuances, Sec. 270.145, Stats.

When the appellants secured the temporary order for guardianship, it appears that they submitted an order for a hearing on their petition for permanent guardianship. The trial court signed such order, which indicated that the petition would be heard on August 19, 1974 or 'as soon thereafter as the matter can be heard' with notice to interested persons to be made by service of a copy of the order at least '48 hours prior to the hearing.' Apparently the desirability of an early disposition was paramount in all parties' minds and the ten day notice requirement of Sec. 879.05(3), Stats., was dispensed with. The necessary parties received notice and a hearing was held on August 20, 1974.

At the conclusion of that hearing, the trial court stated:

'Gentlemen, the first witness, Rev. Hanchett, recommended a third party investigation. This matter is obviously extremely complicated. The Court is not going to make a final determination on the appointment of a guardian today. I will adjourn the matter . . . until Friday, August 30 . . . In the meantime, I will request the (Department) to make a third party and hopefully impartial investigation of the two proposed homes.'

In the letter to the Department, the court phrased its request in terms of a comparative study of the households with the objective that the report be completed in time for a final determination before the start of the school year.

Jodi Monfils and Chris Prust, representatives of the Department, submitted their report on August 27, 1974. They recommended that Mr. and Mrs. Barkholtz be appointed as the guardians. At the continuation of the hearing on August 30, 1974, the appellants submitted a motion to continue the action 'from day to day' until psychological testing and psychiatric evaluation of test results could be utilized in determining placement of the children, until all alternatives for placement of the children could be considered and until the trial of George Schmidt was concluded.

The trial court was initially concerned about the lack of notice on the motion. Ruling was deferred, however, until the merits of the motion could be considered in light of proposed testimony referred to in an accompanying affidavit. This testimony was provided by Dr. Gerald A. Gehl, a specialist in child psychiatry.

Dr. Gehl testified that although he had been contacted by the attorney for the appellants, he wished to proceed as an independent evaluator, possibly in conjunction with the guardian ad litem. Lacking time to establish such an arrangement, he had proceeded to interview the appellants and review both the current report from the Department as well as the prior custody study of the parents. Dr. Gehl's initial testimony disclosed that he had interviewed the Brezinskis for one hour and could not agree with the few negative aspects attributed to them in the report.

He had not interviewed the Barkholtz family. Dr. Gehl did conclude that there were positive factors in favor of the Brezinskis being named as guardians. He reiterated that some of these factors were not necessarily determinative, as they were advantages shared by the Barkholtzes. Of more importance was his recommendation that action be deferred until the children could be evaluated and until a more comprehensive study of the two households and other alternative placements be made.

His reasons for this recommendation included the observation that no significant evaluation of 'their past adjustments, home behavior, school adjustments as to behavior, academic, peer relationships' had been made, which he deemed essential to the best interests of the children. Dr. Gehl noted that if these criteria were stable and good, he might suggest strongly that the children remain in the present custody of the Brezinskis. Secondly, he noted that the current adversary situation implied lack of agreement as to the two proposed placements and thus other alternatives needed to be considered.

The mention of further alternatives was no basis for a delay. Dr. Gehl indicated that there were other relatives of the Schmidts who could perhaps be considered. There is no indication that such relatives were either willing or suitable for guardianship of the three children, although it seems inconceivable that they were unaware of the unfortunate circumstances. It would also be pointless to consider placement in a foster home of strangers when the real problem confronting the court was to decide the comparative merits of two fine households closely related to the minors.

Was it an abuse of discretion to determine guardianship without recourse to the testing and interview evaluation of the children, as suggested by Dr. Gehl? It is undisputed that such an examination may involve anywhere from three to six months' time. Monfils, although noting that the time limitations had forced a normal amount of investigation 'in an abnormally short period,' advised against further delay. Both she and Prust believed that there was no need for psychological evaluation of the children. She cited the possibility that the testing might create unnecessary trauma for a child, and that nothing in the Schmidt children's behavior indicated that such testing was necessary. Prust also testified that she saw no emotional problems in the children during her visit with the Brezinskis, who had indicated that the children were not giving them any trouble.

Dr. Gehl admitted that his proposed evaluation be undertaken even if the parties could agree on a placement. It is clear that the philosophy underlying his recommendation is that comprehensive testing and interview of minors be a requisite part of all placement situations, whether in divorce custody, guardianship or adoption. This view is in contrast with the social workers' attitudes that psychological review be resorted to only if the child's behavior indicates problems in adjustment. Although such in depth and time consuming evaluation is necessary in some cases and would perhaps be an aid in others, there comes a point when desirable expectations must confront reality. Studies of this nature, if required in all cases, would be costly burdens for the counties, state and estates of the minors involved. Insofar as the testimony implies that such analysis is necessary in all cases, the trial court's denial of the motion was proper in refuting that contention.

Although Dr. Gehl's proposal, at least as indicated from his testimony, may be appropriate to determine whether the placement with a permanent guardian is benefiting the minors, there is no basis to claim that the trial court abused its discretion by not affording such study before naming the guardian for apparently normal children.

Father's Preference

The appellants criticize the following retionale of the trial court:

'There's one other aspect here. We have been treating this--I as well as both counsel--as though it were a custody or an adoption hearing. It is not. It is a hearing on guardianship, and one of the items which the Court must consider is a statutory preference for a natural parent. And, presumably, if a parent is not himself able to take that guardianship--and Mr. Schmidt has conceded that he is not able to do that--then and even so his nomination must carry some weight.

'Based both on the test of the best interests of the children and the recommendations and the nomination of the natural father of the children, the Court will appoint Mr. and Mrs. Harry Barkholtz as the guardians of the person and estate of these three children.'

Contention is made that the natural father's nomination carries 'no weight whatsoever' once he is found or stipulates that he is not suitable as a guardian, and that 'nowhere in the statute is there a presumption that a parent who is not 'suitable,' namely, unfit, shall have a statutory right to nominate a guardian which is to be given precedence over other factors.'

We think that the first proposition is incorrect, and that the latter argument, although perhaps correct, is not demonstrated as occurring here.

The father stipulated to his unsuitability as a guardian because of his incarceration. Counsel for the Brezinskis apparently attempted to establish that Mr. Schmidt was morally unfit by submitting proof of the pending criminal action, which was properly rejected...