In re Guardianship of Nicholas C.L.

• Decision Date: 10 May 2006
• Docket Number: No. 2005AP1754.,2005AP1754.
• Citation: 719 N.W.2d 508,2006 WI App 119
• Court: Wisconsin Court of Appeals
• Parties: In the Matter of the GUARDIANSHIP OF NICHOLAS C.L., a minor. Nicholas C.L., Martin L., and Marlene L., Petitioners-Appellants,<SMALL><SUP>†</SUP></SMALL> v. Julie R. L., Respondent-Respondent.

719 N.W.2d 508

2006 WI App 119

In the Matter of the GUARDIANSHIP OF NICHOLAS C.L., a minor.

Nicholas C.L., Martin L., and Marlene L., Petitioners-Appellants,^† v. Julie R. L., Respondent-Respondent.

No. 2005AP1754.

Court of Appeals of Wisconsin.

Submitted on Briefs March 7, 2006.

Opinion Filed May 10, 2006.

COPYRIGHT MATERIAL OMITTED

On behalf of the petitioners-appellants, the cause was submitted on the briefs of Raymond E. Krek, Joann L. Miller, and Shawna L. Lee of Krek & Associates, S.C., Jefferson, and Christopher D. Walther of Walther Law Offices, S.C., Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of Thomas M. Bartell, Jr., and Michael A. Baird of Stupar, Schuster, & Cooper, S.C., Milwaukee.

A nonparty brief was filed by Michael J. Finn of Law Office of Michael Finn, Hartland.

Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.

¶ 1 SNYDER, P.J

Nicholas C.L., Martin L., and Marlene L. appeal from an order dismissing Martin and Marlene's petition for guardianship of Nicholas.¹ They contend that the circuit court erred in several respects, including applying an incorrect standard of law, imposing an improper burden of proof, and erroneously exercising its discretion when ruling on the credibility of witnesses. The record demonstrates that this was extremely contentious litigation, fraught with tragic circumstances, emotional pleas, and disquieting reports from experts. Nonetheless, we find no error in the circuit court's application of the law, consideration of the evidence, or determinations of credibility. We affirm the court's order for dismissal.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 This case involves a custody battle between paternal grandparents and the biological mother of Nicholas. Julie R.L. and Kevin L. were married and had three children: Nicholas, born on 8/3/1989, Caleb, born on 4/26/1991, and Jared, born on 7/29/1993. In March 2003, Julie filed for divorce, and Kevin moved in with his parents, Martin and Marlene. Following the divorce, Kevin received primary placement of Nicholas, and Julie received primary placement of the two younger sons, Caleb and Jared.

¶ 3 Julie continued to be involved in Nicholas' life but was concerned about his progress at school and rumors that Nicholas was experimenting with drugs and alcohol. On December 4, 2004, Julie filed a petition to reverse placement and have Nicholas live with her. One month later, on January 3, 2005, Kevin was killed in a snowmobile accident. After Kevin's death, Nicholas refused to move back in with Julie.

¶ 4 Julie took Nicholas to counseling sessions to help him work through his grief over the death of his father. She also asked that the counselor address issues regarding her relationship with Nicholas. Following one of the counseling sessions, Julie called the counselor to report that Nicholas had threatened to jump out of her car because he did not want to live with her. Julie made repeated calls to talk to Nicholas, but none were returned until she threatened to call the police. Shortly thereafter, Julie began researching various schools for Nicholas, including military schools and "therapeutic boarding schools." Julie enrolled Nicholas in a Montana boarding school called Spring Creek Lodge Academy (SCL). She hired a transport service, which picked Nicholas up on January 31, 2005, and took him to SCL.

¶ 5 On February 4, 2005, Nicholas' paternal grandparents, Martin and Marlene, filed a petition for guardianship pursuant to WIS. STAT. ch. 880 (2003-04).² On February 9, 2005, attorney Michael Finn was appointed guardian ad litem (GAL) for Nicholas. On March 18, the court appointed Raymond Krek as Nicholas' attorney.

¶ 6 A bench trial ensued and lasted three days. The circuit court heard testimony from Dr. Jeffrey Polczinski, Dr. Marc Ackerman and Dr. Thomas Moran, all psychologists who had examined Nicholas. Marlene, Martin, and Julie all testified, and Nicholas' deposition was admitted into evidence. Also, several people associated with SCL testified, including the principal, Nicholas' day-to-day supervisor, the family representative coordinator, and a therapist providing services to Nicholas while he was at SCL. The court also heard from several witnesses who were friends or acquaintances of the family and testified as to their observations of the relationship between Nicholas and Julie or other family relationships. After all evidence was presented and closing arguments concluded, the court rendered its decision dismissing the guardianship petition. Nicholas, Martin, and Marlene appeal.

DISCUSSION

¶ 7 Nicholas and his grandparents raise multiple issues on appeal. We can sort them into four primary categories. First, they challenge the legal standard applied by the court in deciding not to transfer custody to the grandparents. In the event we determine the court applied the proper standard, they challenge the court's application of that standard to the facts of the case. Next, they contest the court's credibility determinations. Finally, they contend that the court heavily relied on the GAL, who failed to represent Nicholas' best interests. We take each issue in turn. WISCONSIN STAT. ch. 880 Guardianship and the Barstad Standard

¶ 8 The first issue presented is whether Barstad v. Frazier, 118 Wis.2d 549, 348 N.W.2d 479 (1984), an action under WIS. STAT. ch. 767, presents the applicable legal standard for a guardianship action under WIS. STAT. § 880.09. Of particular concern here is the right of a minor over fourteen years old to nominate a guardian under § 880.09(1) and to object to the nomination of a parent under § 880.09(2):

Nomination; selection of guardians. The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following:

(1) NOMINATION BY MINOR. A minor over 14 years may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is without the state, or if other good reason exists, the court may dispense with the right of nomination.

(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.

¶ 9 Nicholas argues that the circuit court's reliance on Barstad ignores the fact that the legislature granted the minor a voice in WIS. STAT. § 880.09(1). Nicholas, who was over the age of fourteen at the time his grandparents petitioned for guardianship, submitted an affidavit to the court nominating his grandparents, Martin and Marlene, as his preferred guardians. In his affidavit, Nicholas also catalogued many struggles he had in his relationship with Julie and told the court he did not want to live with her. Nicholas contends that the proper standard to be applied here is the best-interest-of-the-child standard, which would honor the minor's legislatively created right to nominate a guardian and to object to the biological parent preference.

¶ 10 In Barstad, the court determined that:

[T]he rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.

Barstad, 118 Wis.2d at 568, 348 N.W.2d 479. The court further explained:

Under ordinary circumstances, a natural parent has a protected right under both state law and the United States Constitution to rear his or her children free from governmental intervention. Absent compelling reasons narrowly defined, it is not within the power of the court to displace a fit and able parent simply because in the court's view someone else could do a "better job" of "parenting."

Id. at 567-68, 348 N.W.2d 479.

¶ 11 Nicholas points out that the Barstad decision was not unanimous. In her concurrence, Justice Abrahamson wrote, "I do not join the majority in reaching out and addressing constitutional issues not necessary to the decision of the case." Id. at 571, 348 N.W.2d 479. Nicholas argues that, under Justice Abrahamson's concurrence, "the test could have been singular, the best-interest-of-the[-]child [WIS. STAT.] § 767.24 statutory standard; thus eliminating the compelling circumstances component addressing the constitutional right of parental custody."

¶12 Nicholas points to two cases to demonstrate that a best-interest-of-the-child standard should be applied to a WIS. STAT. ch. 880 guardianship proceeding. First, he cites Anna S. v. Diana M., 2004 WI App 45, 270 Wis.2d 411, 678 N.W.2d 285, which states, "the circuit court's decision on guardianship and placement involves a determination of [the child's] best interests." See id., ¶ 7. Placed in context, however, Anna S. lends no support for Nicholas' position. In Anna S., the child's father was deceased, and the birth mother was incarcerated. Id., ¶¶ 2-3. There, the need for a guardian was established, and the best-interest-of-the-child analysis was properly applied in determining which nonparent would serve as guardian.

¶13 Nicholas also cites to Brezinski v. Barkholtz, 71 Wis.2d 317, 237 N.W.2d 919 (1976). The court there stated that the "conclusion is inescapable that the best interests test be followed. Nothing in the guardianship section indicates otherwise, although preference is given to certain nominations." Id. at 328, 237 N.W.2d 919. However, in Brezinski, the mother of the minor children died of gunshot wounds at her residence. Id. at 319, 237 N.W.2d 919. The father of the children took them to the police station the same day and was incarcerated and charged with the murder of his wife. Id. The hearing there was directed...