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TPR order for adoption defeats grandparent guardianship action

M. L.-F. v. Oneida County Department of Social Services, 2016 WI App 25; case activity

The County filed for termination of the parental rights of the mother and father of twin boys. While the TPRs were pending, the father’s mother, M. L.-F, filed a petition for guardianship of her grandsons. The court of appeals now holds that court’s decision in the T.P.R–to place the children under state guardianship pending adoption by their foster parents–would override any conflicting order in the guardianship case, and so affirms the dismissal of the guardianship petition.

The grandparents, who lived in Minnesota, were initially under consideration for placement of the children, but a home study by their county social services recommended that the children not be placed with them. (¶¶3-5). The grandparents were apparently not contacted about this fact and didn’t understand the recommendation. (¶5). Nor were they given notice of ensuing hearings in the underlying CHIPS proceeding which moved the children toward adoption by their foster family. (¶¶6-7).

After the county filed the TPRs, the grandparents filed for guardianship of the grandchildren under Wis. Stat. ch. 54. The circuit court stayed that petition while the TPRs were ongoing. (¶9). The parents admitted to unfitness grounds, and at the dispositional hearing, the court concluded that the children’s best interest would be served by remaining with the foster family, where they had by then been for two years. (¶12). The circuit court then dismissed the guardianship petitions on the theory that Wis. Stat. § 48.977(8)(b), which expressly permits ch. 54 guardianship petitions by those not authorized to petition for ch. 48 guardianship, does not apply where a TPR is pending. (¶14).

The court of appeals rejects the circuit court’s reading of Wis. Stat. § 48.977(8)(b), holding that the statutes do not forbid a Wis. Stat. ch. 54 petition while a TPR is pending.  (¶¶15-19). It affirms, however, based on a different statutory provision:

WISCONSIN STAT. § 48.15 states, in relevant part, that “the jurisdiction of the court assigned to exercise jurisdiction under this chapter … is paramount in all cases involving children alleged to come within the provisions of ss. 48.13 and 48.14[.]” When applying this statute in a case involving conflicting rulings by a juvenile court and a divorce court, our supreme court explained:

“The statute makes the jurisdiction of the juvenile court paramount to that of the divorce court. This means at least that the burden is on the divorce court to avoid taking action which is or is likely to be in conflict with action taken by the juvenile court. As a matter of comity, the divorce court should under most circumstances stay its proceeding when a proceeding involving the same child is instituted in the juvenile court until the juvenile court reaches a determination. But it seems reasonable that the divorce court retains jurisdiction to do anything which does not conflict with the orders and findings of the juvenile court.” State ex rel. Rickli v. County Court of Dane Cty., 21 Wis. 2d 89, 96-97, 123 N.W.2d 908 (1963).

(¶21). The court of appeals thus concludes that, because a successful guardianship petition by the grandparents would necessarily conflict with the TPR court’s determination that the children should be with the foster parents, the guardianship was properly dismissed. (¶23).

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