In re Paternity of Roger DH, 00-3333.

• Decision Date: 17 January 2002
• Docket Number: No. 00-3333.,00-3333.
• Citation: 641 N.W.2d 440,250 Wis.2d 747,2002 WI App 35
• Parties: IN RE the PATERNITY OF ROGER D. H.: ROGER D. H., by his Guardian ad Litem, Rebecca M. Richards-Bria, Appellant, PATRICIA C., Petitioner, v. VIRGINIA O., Respondent-Respondent.
• Court: Wisconsin Court of Appeals

250 Wis.2d 747

2002 WI App 35

641 N.W.2d 440

IN RE the PATERNITY OF ROGER D. H.:

ROGER D. H., by his Guardian ad Litem, Rebecca M. Richards-Bria, Appellant, PATRICIA C., Petitioner, v. VIRGINIA O., Respondent-Respondent.

No. 00-3333.

Court of Appeals of Wisconsin.

Submitted on briefs July 9, 2001.

Decided January 17, 2002.

On behalf of the appellant, the cause was submitted on the briefs of Rebecca M. Richards-Bria of Curran, Hollenbeck & Orton, S.C., Mauston.

On behalf of the petitioner, the cause was submitted on the brief of Patricia C. On behalf of the respondent-respondent, the cause was submitted on the brief of Daniel M. Berkos of Berkos Law Office, Mauston.

Before Vergeront, P.J., Deininger and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

Roger D.H., by his guardian ad litem, appeals an order of the circuit court vacating a prior order establishing visitation rights on behalf of Roger D.H.'s grandmother.¹ The parties raise the following issues: (1) whether the circuit court erred when it vacated a visitation order providing for grandparent visitation because the court believed it could not interfere with the mother's decision-making authority "absent a finding that [she] is an unfit parent"; and (2) whether the circuit court was prohibited from granting visitation to the grandmother because WIS. STAT. § 767.245(3) (1997-98)² is facially unconstitutional in that it does not require courts to give presumptive weight to a fit parent's decision regarding non-parental visitation.

¶ 2. We conclude that the circuit court erred when it determined that it could not grant visitation rights to the grandmother absent a showing of parental unfitness. We reject the argument that WIS. STAT. § 767.245(3) is facially unconstitutional. We reverse and remand for further proceedings.

Background

¶ 3. Roger D.H. was born July 27, 1986. Virginia O. is Roger's biological mother. She did not marry Roger's biological father. In April of 1997, Roger D.H. was the subject of a paternity action. Roger's mother has sole custody. Roger's father is not a party to this action and he had no visitation rights at the time this action was pursued before the circuit court.

¶ 4. Patricia C. is the paternal grandmother of Roger D.H. In 1996, Roger's mother and his paternal grandmother entered into a court-approved stipulation providing the grandmother with visitation rights. An order was entered in August of 1996 setting forth the stipulation.

¶ 5. In 1999, the grandmother filed a motion to compel compliance with the 1996 order, asserting that the mother had denied her visitation on at least seven occasions. Thereafter, the mother filed a motion to "modify" the stipulation, seeking in actuality to vacate the stipulation. In an attached affidavit, the mother asserted there had been a substantial change in circumstances and grandparent visitation was no longer in Roger D.H.'s best interest. A guardian ad litem was appointed to represent Roger D.H.

¶ 6. At some point during these proceedings, the parties became aware of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000). Over the course of two hearings, the parties presented argument on the effect of Troxel on WIS. STAT. § 767.245(3). The mother argued that Troxel requires some showing of unfitness before a court may interfere with a parent's decision on visitation issues. The mother asked the circuit court to invalidate the 1996 stipulation and order.

¶ 7. The circuit court issued an order on November 21, 2000, concluding that both WIS. STAT. § 767.245(3) and the criteria set forth in Troxel were applicable to this case.³ The circuit court concluded that as a fit parent, the mother has the right to make decisions concerning the best interest of her child and, "absent a finding that [she] is an unfit parent," the court could not interfere with her decision regarding visitation. Because the court believed the 1996 stipulation and order interfered with the mother's decision-making rights, the court vacated the order. Roger D.H.'s guardian ad litem appeals.

Discussion

¶ 8. The paternal grandmother in this case is seeking to maintain visitation rights with Roger D.H., a minor whose mother opposes the visitation. Roger's guardian ad litem has determined that it is in Roger's best interest to maintain visitation with his grandmother and, therefore, she has appealed the circuit court decision in favor of the mother. As described above, Roger's grandmother participated in the trial court proceedings and sent a letter to this court opposing the trial court order, but she did not file a notice of appeal. Although it is the guardian ad litem's brief that we consider on appeal, we think clarity will be served if we refer to the arguments of the guardian as those of the grandmother.

A. Standard of Review

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¶ 9. The decision whether to grant or deny visitation is within the circuit court's discretion. See Biel v. Biel, 114 Wis. 2d 191, 194, 336 N.W.2d 404 (Ct. App. 1983). We will affirm a circuit court's discretionary determination so long as it examines the relevant facts, applies the proper legal standard, and uses a demonstrated rational process to reach a conclusion that a reasonable judge could reach. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999). Additionally, we will uphold the circuit court's discretionary determination if we can independently conclude that the facts of record applied to the proper legal standards support the court's decision. See Andrew J.N. v. Wendy L.D., 174 Wis. 2d 745, 767, 498 N.W.2d 235 (1993). When a party contends that the circuit court erroneously exercised its discretion because it applied an incorrect legal standard, we review that issue de novo. F.R., 225 Wis. 2d at 637.

B. Unfitness Requirement

¶ 10. The grandmother argues that the circuit court improperly read into WIS. STAT. § 767.245(3) a requirement that a court find a custodial parent unfit before the court can interfere with the parent's decision regarding visitation. We agree.

¶ 11. In its November 21, 2000, order, the circuit court concluded, as a matter of law, that it did not have authority to interfere with the mother's right to make decisions concerning the best interest of her child, absent a finding that the mother is an unfit parent. The court found that the mother is a fit parent and concluded that the visitation stipulation interfered with her right to make visitation decisions.

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¶ 12. The circuit court applied an incorrect legal standard. Nothing in WIS. STAT. § 767.245 requires a showing of parental unfitness before a court may override a parent's decision regarding grandparent visitation, nor do we find any case law from this state holding as much. The circuit court may have believed that the United States Supreme Court imposed such a requirement in Troxel. If so, we disagree. There is no suggestion in Troxel that a court may only interfere with a parent's decision regarding visitation if the parent is shown to be unfit. Rather, the Troxel Court's parental fitness discussion is in the context of explaining that there is a presumption that fit parents act in the best interest of their children. See Troxel, 530 U.S. at 68.

C. Constitutional Challenge

¶ 13. Roger D.H.'s mother suggests an alternative ground on which to affirm the circuit court order. She argues that Troxel "makes it clear that a statute that fails to show deference to a parent's decision-making does not meet the constitutional safeguards of the Fourteenth Amendment." Her argument amounts to an assertion that WIS. STAT. § 767.245 is facially unconstitutional under Troxel because the statute does not require that courts give presumptive weight to a fit parent's decision regarding non-parental visitation and, therefore, the circuit court was without statutory authority to grant visitation to the grandmother.⁴ However, while Troxel does require that courts accord a presumption that fit parents act in the best interests of their children, it provides no support for the mother's claim that § 767.245 is facially unconstitutional. To the contrary, Troxel strongly suggests that we may read such a requirement into the statute to save it from facial invalidation.

¶ 14. The Washington statute at issue in Troxel is exceedingly broad. It provides:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

WASH. REV. CODE § 26.10.160(3) (1994); see Troxel, 530 U.S. at 61. Acting under the authority provided by this statute, a Washington state trial court granted more visitation than the mother desired to the paternal grandparents of a child born out of wedlock.

¶ 15. In analyzing the case, the Troxel Court began by observing that the Due Process Clause of the Fourteenth Amendment "protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66. The Court went on to state: "there is a presumption that fit parents act in the best interests of their children." Id. at 68. The Court explained, "[t]he problem here is not that the Washington [trial court] intervened, but that when it did so, it gave no special weight at all to [the mother's] determination of her daughters' best interests." Id. at 69. The Troxel Court said:

[The Washington statute] contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn

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