BabyG Legal Fund

Case now accepted by WI Supreme Court--Please help the family pay legal fees. Pre-adoptive family lost custody of baby after 10.5 months--baby now in foster care.

This case involves a dispute over the custody of a girl who was raised for several months by prospective adoptive parents, including Steven and Donna P., before the biological parents decided they wanted to retain parental rights. The Court of Appeals affirmed the trial court's order dismissing a third-party guardianship petition filed under Wis. Stat. § 54.10 by the prospective adoptive parents.

The Supreme Court reviews several issues, including the following:
The extent, if any, to which the legal standard for guardianship of a minor announced in Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984) should apply to biological parents who have not exercised custody over the child; and
Whether children possess a constitutional right to preserve an existing, sound parental or parent-like relationship, and if so, whether the removal of the child from the home of the prospective adoptive parents violated that constitutional right.

Some background: Both of the biological parents in this case have had run-ins with the law. The biological mother has a history of drug and mental health issues and has a propensity toward violent behavior. The biological father is currently in prison on charges related to armed robbery and drugs.
When the biological mother was eight months pregnant, she decided to place the baby for adoption. Neither the biological father nor his family was involved during the pregnancy.
The prospective adoptive parents were present at the birth and gave the girl their last name. They took placement several hours after her birth and returned with the baby to their home out of state.

A few days later, the prospective adoptive parents signed a "Legal Risk Placement Agreement," acknowledging that Wisconsin requires a termination of parental rights before the child is eligible for adoption. They also acknowledged that, because the placement had occurred before the termination of parental rights, there was a possibility that the girl would be returned to the biological mother. Likewise, the biological mother signed a "Voluntary Placement Agreement Using Legal Risk Placement" agreeing to the placement, and further agreeing that adoptive placement was "in the child's best interests and in my best interest."

During the process of voluntarily terminating her parental rights, the biological mother learned through genetic testing the identity of the biological father, who, from prison, refused to voluntarily terminate his parental rights. After a trial, a jury found that grounds did not exist to involuntarily terminate his parental rights. The biological mother also changed her mind about the adoption and withdrew consent to terminate her parental rights.

The prospective adoptive parents filed a petition for temporary and permanent guardianship over the child. The circuit court (Judge Christopher R. Foley, presiding) granted a temporary guardianship to the prospective adoptive parents. The court ruled that doing so was necessary "to preserve a safe environment for this child pending further proceedings in this matter." The court held that the biological mother's home was dangerous for the child.

A different circuit court judge (Judge Marshall B.Murray) presided over the permanent guardianship proceedings. During the pendency of these proceedings, the biological mother was arrested and sent to jail on a probation revocation. Also during the pendency of these proceedings, the guardian ad litem assigned to the case filed a petition alleging that the child, if left in the biological parents' care, would be in need of protection or services.

Ultimately, the circuit court dismissed the prospective adoptive parents' permanent guardianship petition. The court held that the Barstad court "rejected the "˜best interests' standard in custody dispute[s] between parents and third parties." The court also ruled that while it is possible that one could conclude that the biological mother was unfit or unable to parent the child, the court believed her positive attributes outweighed her negative attributes. The court also ruled that it could not conclude that the incarcerated biological father was unfit or unable to parent the child.

The Court of Appeals affirmed. It concluded that it was bound to follow Barstad's direction that the best interests of the child should not be considered absent a finding that a parent is either unfit or unable to care for his or her child or there are compelling reasons for awarding custody to a third party. The court further held that the trial court properly exercised its discretion when it found that the biological mother was fit and able to parent, and that there were no other compelling circumstances to deny her custody of the child. The court further held that the biological father's incarceration did not in itself demonstrate that he was unfit as a parent.

Since the conclusion of the circuit court guardianship proceedings, the child has lived in one foster home; then with a grandmother; and now resides in a different foster home. The biological father remains incarcerated and the biological mother has been minimally motivated toward meeting the conditions of return of the child.

A decision by the Supreme Court could address several issues relating to Barstad, including the extent, if any, to which the Barstad standard should apply to biological parents who have not exercised custody over the child, and whether children possess a constitutional right to preserve an existing, sound parental or parent-like relationship. From Milwaukee County.

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Patty Dougherty Johnson 
Asbury, NJ
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