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Defense win: TPR order reversed because it was based on circuit court’s mistake about its authority

T.M.H. v. A.N.W., 2016AP1981, District 4, 12/29/16 (one-judge decision; ineligible for publication); case activity

The biological father of J.H. petitioned to terminate the parental rights of the biological mother, A.W. The circuit court granted the petition, but only after concluding it could order continued visitation between J.H. and his maternal great-grandmother, with whom J.H. had an important relationship. It turns out the circuit court did not have that authority. Because the circuit court said it “absolutely, positively” would not terminate A.W.’s rights unless it could order continued visitation by the great-grandmother, the termination order is reversed.

The circuit court recognized it couldn’t order visitation by J.H.’s great-grandmother under § 48.925 because the great-grandmother’s situation didn’t meet all the requirements of the statute. Instead, it concluded that under Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995), it could exercise its equitable authority to order continued visitation after the termination and adoption (by the father’s wife).

The court of appeals decides the circuit court erred in concluding it had equitable authority here, for two reasons: (1) Elgin W. v. Wisconsin Dep’t of Health & Family Servs., 221 Wis. 2d 36, 47, 584 N.W.2d 195 (Ct. App. 1998), calls into doubt Holtzman’s applicability to any proceeding involving termination and adoption; and (2) even if Holtzman could apply in some cases involving termination and adoption, it doesn’t apply here because the circumstances in this case are addressed in the statutes, which foreclose an order for continued visitation following termination and adoption.

¶22     …. In Elgin W., this court upheld a circuit court’s conclusion that adoption of a child following the termination of both birth parents’ rights precluded the child’s maternal grandparents from establishing rights to custody, guardianship, or visitation as a matter of law. …. This court explained that the situation in Holtzman was “significantly different” from the one in Elgin W., because Holtzman involved a custody dispute “in the context of the breakup of a longstanding, intact family,” in which both “parents” were seeking custody, while Elgin W. involved terminations of the rights of both biological parents supported by a finding that it was likely that the child would be adopted after the termination. Elgin W., 221 Wis. 2d at 46.

¶23     The Elgin W. court distinguished Holtzman “not only on the facts but also [based on] the interplay of other statutes designed to promote and protect [the child’s] best interests.” Id. The court recognized that a circuit court has equitable authority in some circumstances, “as delineated in Holtzman,” but concluded that such equitable authority “should not trump the comprehensive, best-interest-of-the-child provisions of ch. 48, Stats.—particularly those dealing with termination of parental rights and adoption.” Id. at 47. ….

Without equitable authority, visitation must be based on the requirements of the relevant statutes, and the great-grandmother can’t meet them:

¶25     …. The children’s code addresses what happens to the legal rights of birth relatives of a child after an adoption, including the situation in which an adopted child had a previous relationship with a person or persons whose legal rights to the child have been severed by virtue of a termination of parental rights and a subsequent adoption. See Wis. Stat. §§ 48.92(2)… and 48.925…. Section 48.92(2) states that an adoption severs the relationship between the adopted child and the child’s birth parent(s), and severs all relationships derived through the birth parent-child relationship. By definition, the great-grandmother’s relationship with J.H. is a birth relationship that falls into this category when termination and adoption are ordered.

¶26     It is true that, notwithstanding the fact that adoption severs all relationships stemming from the birth relationship, a court may grant visitation to relatives by birth if certain requirements are met, but those requirements are not met here. See Wis. Stat. §§ 48.92(2), 48.925. ….

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