This is every appellate lawyer’s nightmare–pouring your heart into an emotionally charged case presenting a provocative legal issue briefed by 5 different parties and amici and then having the supreme court declare that review was improvidently granted.
The record for this case is confidential so On Point’s explanation of what happened may be imprecise. This appears to be a child custody battle between the biological parents of Giovanna P. and a couple who wanted to adopt her but couldn’t because the biological parents’ rights had not been terminated. So the prospective adoptive parents filed a Chapter 54 petition for guardianship of Giovanna, which the circuit court dismissed and the court of appeals affirmed.
They then petitioned for review (apparently) asking: Should the Wisconsin Supreme Court modify the legal standard to be applied in third-party guardianship actions under Chapter 54 so as to require circuit courts to consider the best interests of the child? See Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984), which holds that “a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.”
Last winter, the circuit court found Giovanna to be a child in need of protective placement and last summer the DA petitioned to terminate the parental rights of her biological parents. The TPR trial is set for January 2014. According to SCOW: “Because it appears the above-described circuit court proceedings may fully and finally resolve Giovanna P.’s custody and placement in the coming few months, we dismiss the petition for review as improvidently granted.” Slip op., ¶5.
(Possible) translation: The “best interests of the child” standard is going to be applied in the TPR proceeding; no need for us justices to resolve the question presented. What a tough case for all involved. If anyone is wondering, it’s rare for SCOW to dismiss a petition as improvidently granted. Assuming Westlaw reports them all, the court did so once in the 2012-2013 term and twice in the 2011-2012 term. The result of such a finding that the court of appeals decision stands.