Paternity of C.A.S., In re, 89-0265

• Decision Date: 13 May 1991
• Docket Number: No. 89-0265,89-0265
• Citation: 161 Wis.2d 1015,468 N.W.2d 719
• Parties: In re the PATERNITY OF C.A.S. and C.D.S. W.W.W., Petitioner-Appellant-Petitioner, v. M.C.S., Respondent-Third Party-Petitioner-Respondent, R.J.S., Third Party-Respondent-Respondent.
• Court: Wisconsin Supreme Court

Page 719

468 N.W.2d 719

161 Wis.2d 1015

In re the PATERNITY OF C.A.S. and C.D.S. W.W.W., Petitioner-Appellant-Petitioner, v. M.C.S., Respondent-Third Party-Petitioner-Respondent R.J.S., Third Party-Respondent-Respondent.

No. 89-0265.

Supreme Court of Wisconsin.

Argued March 26, 1991.

Decided May 13, 1991.

David E. Lasker, argued, and Julian, Olson & Lasker, S.C., Madison, on the briefs, for petitioner-appellant-petitioner.

Richard J. Podell, argued, and Richard J. Podell & Associates, S.C., Milwaukee, on the brief, for respondent-third party petitioner-respondent and the third party respondent-respondent.

Patience D. Roggensack, argued, Steven P. Means and Ross & Stevens, S.C., Madison, on the brief, Guardian Ad Litem.

CALLOW, Justice.

This is a review of a decision of the court of appeals, In re the Paternity of C.A.S., 156 Wis.2d 446, 456 N.W.2d 899 (Ct.App.1990), which affirmed an order of the circuit court of Dane county, Judge Angela B. Bartell. The circuit court issued an order dismissing the petitioner-appellant-petitioner's (W.W.W.'s) petition that he be adjudicated the father of two children, C.A.S. and C.D.S. The circuit court dismissed the paternity petition pursuant to sec. 767.458(lm), Stats., ¹ on the ground that a judicial determination finding W.W.W. to be the father of C.A.S. and C.D.S. would not be in the best interests of the children.

There are three issues raised on appeal. First, W.W.W. contends that sec. 767.458(1m), Stats., as applied, infringes on his constitutional rights to establish his paternity of, and a relationship with C.A.S. and C.D.S. Second, he argues that he has a statutory right to a determination of paternity under sec. 767.45(1) which was violated in this case. Third, he contends that the lower courts misconstrued and misapplied the best interest of the child standard required by sec. 767.458(1m).

We first conclude that W.W.W.'s constitutional rights were not infringed by sec. 767.458(1m), Stats. His rights to establish his paternity of, and a relationship with the children do not warrant constitutional protection because his relationship with the children did not give rise to a liberty interest. Likewise, he does not have a statutory right to establish his paternity of C.A.S. and C.D.S. because the specific language of sec. 767.458(1m) is an exception to the statutory right to a determination of paternity granted by sec. 767.45(1)(d). ²

We finally conclude that the lower courts did not misapply the best interest of the child standard under sec. 767.458(1m), Stats. The evidence in the record supports the circuit court's determination that it would not be in the children's best interests to allow a judicial determination that W.W.W. was their father.

The relevant facts follow. M.C.S. is the mother of five children. Each of these children was conceived during her marriage to R.J.S. M.C.S. and R.J.S. were married in 1967 and are still married. The two youngest children, C.A.S., born in 1982, and C.D.S., born in 1984, have lived continuously with M.C.S. and R.J.S. R.J.S. is listed as their father on their birth certificates, and has alleged that he is their father. He also is and has been responsible for their emotional and financial well-being.

M.C.S. and W.W.W. had sexual relations during the period of time when C.A.S. and C.D.S. were conceived. ³ Shortly after C.D.S. was conceived, M.C.S. and W.W.W. terminated their relationship. Although W.W.W. had infrequent contacts with C.A.S. prior to the end of his relationship with M.C.S., he did not have any contacts with either C.A.S. or C.D.S. thereafter. W.W.W. alleged that he did not support the children emotionally or financially, but was prevented by M.C.S. from establishing a relationship with the children.

On May 25, 1985, W.W.W. petitioned the circuit court for a determination that he was the father of C.A.S. and C.D.S., and he requested custody of the children and visitation rights. The circuit court appointed a guardian ad litem for the children. On October 10, 1985, M.C.S. moved for an order dismissing the action with prejudice, on the ground that the action was not in the best interests of the children.

A pretrial hearing was conducted before the assistant family court commissioner on October 16, 1985, pursuant to sec. 767.46, Stats. The commissioner concluded that a judicial determination of paternity was not in the best interests of the children, and recommended that the action be dismissed. W.W.W. refused to accept this recommendation and the matter was placed for trial.

M.C.S. moved for summary judgment and the guardian ad litem moved for judgment on the pleadings. The circuit court denied these motions, and granted W.W.W.'s request for blood tests, pursuant to sec. 767.48(1), Stats. The court of appeals denied a subsequent interlocutory appeal, and remanded the case to the circuit court. A subsequent reconsideration request before the court of appeals and a petition for review before this court were also denied. While these appeals were pending, the legislature amended the paternity statutes and created sec. 767.458(1m), effective August 1, 1987.

In light of the enactment of sec. 767.458(1m), Stats., the circuit court then granted a motion by M.C.S. and the guardian ad litem to stay this order for blood tests and ordered a hearing pursuant to sec. 767.458(1m). An evidentiary hearing was held on December 7, 1988 before the Dane county circuit court. The circuit court concluded that it was not in the best interests of the children to make a judicial determination of paternity, and dismissed the action with prejudice.

The court of appeals affirmed the order of the circuit court. This case is presently before this court on a petition for review pursuant to sec. (Rule) 809.62, Stats.

I.

In Kurtz v. City of Waukesha, 91 Wis.2d 103, 116-17, 280 N.W.2d 757 (1979), we examined the need to serve the state attorney general with a copy of the proceeding if a statute is alleged to be unconstitutional. Although Kurtz involved the constitutionality of the Fair Employment Act, secs. 111.31--111.37, Stats. 1977-78, we adopted the rationale of sec. 806.04, Stats. 1977-78, ⁴ dealing with declaratory judgments. In Kurtz, we concluded that a pronouncement by this court on the constitutionality of an act was precedent no matter how the issue was presented, and we declined to review the issue because the parties had not given the state an opportunity to be heard. Kurtz, 91 Wis.2d at 117, 280 N.W.2d 757.

In this case, also, the state did not receive an opportunity to be heard, although W.W.W.'s argument centers on the constitutionality of sec. 767.458(1m), Stats. W.W.W. argued or suggested the following constitutional challenges to SEC. 767.458(1M): (1)⁵ it violates his substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; (2) it violates the equal protection clause of the fourteenth amendment; (3) its retroactive application violates his right to procedural due process under the fourteenth amendment; (4) it violates Wisconsin Constitution art. I, sec. 1; and (5) it violates Wisconsin Constitution art. 1, sec. 9.

The rule discussed in Kurtz was relaxed somewhat in In Matter of Estate of Fessler, 100 Wis.2d 437, 302 N.W.2d 414 (1981). In Fessler, we addressed the constitutionality of sec. 859.07, Stats. (1977), which dealt with notice by publication to probate creditors. We held that although the attorney general was not notified of the constitutional challenge before the probate court, this defect was cured because the attorney general was notified while the case was pending before the court of appeals. Fessler, 100 Wis.2d at 441, 302 N.W.2d 414. In this case, because of the original failure to notify the attorney general, ⁶ and because the appellate court did not address these issues, we decline to address the constitutional issues raised by the petitioner other than his substantive due process challenge. ⁷

We address the petitioner's substantive due process challenge, however, because it was considered by the court of appeals. In its decision, that court stated, "[t]hough [W.W.W.'s] argument could be interpreted as an assertion that sec. 767.458(1m) is unconstitutional, it could also be interpreted as an assertion that sec. 767.458(1m) does not apply to him. We give [W.W.W.] the benefit of the doubt and address his argument." C.A.S., 156 Wis.2d at 454 n. 2, 456 N.W.2d 899. Because the issue has been fully briefed by both parties and thoroughly considered by the court of appeals, we address this constitutional challenge.

W.W.W. argues that he has a protected liberty interest under the due process clause of the fourteenth amendment in a relationship with C.A.S. and C.D.S. He bases this contention on a string of decisions rendered by the United States Supreme Court. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley, Quilloin, Caban, and Lehr each involved unwed fathers who claimed that they had been denied the equal protection and due process of the law under the rights guaranteed to them by the fourteenth amendment. In two cases (Stanley and Caban), the father had established a relationship with the children in question, and the Supreme Court found that the father's constitutional rights had been violated. In the other two cases (Quilloin and Lehr), no relationship had been established and the Court found no constitutional violations.

Michael H. involved a case where an unwed father had established a relationship with his natural child. Blood tests indicated a 98.07% probability that he was the natural father of a child born...