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No error in granting guardianship to grandparents

Waukesha County DHHS v. T.C.S., 2016AP1000 & 1001, 9/13/17, District 2 (one-judge decision; ineligible for publication); case activity

This is a case type we rarely come across–an appeal of a guardianship arising out of a CHIPS case. (See generally Wis. Stat. § 48.977.) The circuit court awarded custody of the child at issue to his paternal grandparents; this is the mother’s appeal.

The opinion provides a helpful outline of the statutory procedure, which, in many ways, mirrors that of a TPR. (¶¶13-16). The court of appeals notes that the circuit court did not follow the statutory timeline; however, it finds no harm to the mother in this (what the circuit court did was give her more time than statutorily allotted to prepare for the final hearing). (¶37).

The mother raises three challenges: that the trial court violated her fundamental right of familial integrity, that the statutory criteria for guardianship were not met, and that she was denied due process when the circuit court limited the hearing to one day.

As to familial integrity, the mother argues that the circuit court erred in considering the best interest of the child without first having made a finding of abuse or neglect. She relies chiefly on Barstad v. Frazier, 118 Wis. 2d 549, 554-55, 348 N.W.2d 479 (1984), in which the supreme court said that “that the ‘best interests of the child’ is not the proper standard in custody disputes between a natural parent and a third party and also that the record does not support a conclusion of compelling reasons for denying custody to [the child’s] mother.” Barstad also said “compelling reasons” would “include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child.” The court of appeals holds that the circuit court properly found compelling reasons in the mother’s ongoing and life-threatening opiate addiction, which led her to neglect her parental responsibilities and also spend a significant portion of her child’s life incarcerated. (¶25).

The mother’s statutory challenges are that she was not “neglecting, refusing or unable to carry out the duties of a guardian” and that the grandparents, due to age, could not be “willing and able to serve as the child’s guardian for an extended period of time.” See Wis. Stat. § 48.977(2)(c) & (e). The court of appeals finds sufficient evidence in support of both of these conclusions. (¶¶26-32).

Finally, the court of appeals concludes that the trial court properly exercised its discretion to control its calendar in limiting the hearing to one day. (¶¶35-36).

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