In Interest of AB

444 N.W.2d 415, 151 Wis. 2d 312
CourtCourt of Appeals of Wisconsin
DecidedJune 8, 1989
Docket88-1494
StatusPublished

This text of 444 N.W.2d 415 (In Interest of AB) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of AB, 444 N.W.2d 415, 151 Wis. 2d 312 (Wis. Ct. App. 1989).

Opinion

151 Wis.2d 312 (1989)
444 N.W.2d 415

IN the INTEREST OF A.B., a child under the age of eighteen: A.B., by her Guardian ad Litem, Attorney Shelia Hill-Roberts, Appellant,
v.
P.B., mother, and M.W.K., father, Respondents.

No. 88-1494.

Court of Appeals of Wisconsin.

Submitted on briefs January 13, 1989.
Decided June 8, 1989.

*313 For the appellant the cause was submitted on the briefs of Legal Aid Society of Milwaukee, Inc., with Shelia Hill-Roberts of counsel, of Milwaukee.

*314 For the respondent P.B. the cause was submitted on the briefs of Demet & Demet, S.C., with Margadette M. Demet of counsel, of Milwaukee.

An amicus curiae brief was submitted by Donald J. Hanaway, attorney general, and Donald P. Johns, assistant attorney general.

Before Moser, P.J., Sullivan and Fine, JJ.

FINE, J.

This case concerns a biological father who sought to terminate his parental rights. Following a hearing, the trial court granted his request, and the child's guardian and litem appeals.[1] The Attorney General has submitted an amicus curiae brief urging reversal.

The guardian ad litem raises three issues. First, she alleges that the trial court failed to consider the statutory factors applicable to situations where a parent wishes to terminate his or her parental rights. Second, she argues that the Children's Code does not permit a parent to terminate parental rights in order to avoid child support responsibilities. Third, she contends that it is against public policy to permit the voluntary termination of parental rights when that is not a prelude to adoption.[2] We reverse.

*315 I.

A.B. is a girl who was born on May 6, 1986, when her mother was thirty-two and her father was twenty-six. The parents were not married and had dated for several months when the mother told the father that she was pregnant. He suggested that they marry, but she demurred. The father then advised an abortion.

The father initially denied paternity but, after blood testing, see secs. 767.48 and 885.23, Stats., apparently admitted it. He was adjudicated as the girl's father and was ordered to pay $435 per month in child support. The mother testified at the hearing that of that amount, $150 "goes to the state to pay back."

On January 22, 1988, the mother filed a petition to terminate the father's parental rights to their daughter. The petition alleged that the father agreed to the termination and that the mother "will waive all of her rights to any child support from the adjudicated father now or at any time in the future and will assume complete financial responsibility for the child." The petition represented, however, that the father "will continue to pay on the balance due the welfare department until the obligation has been satisfied."

The trial court held a hearing on the petition. Both the mother and the father testified. They were represented by attorneys, though the father's attorney did not attend the hearing. The child was represented by her guardian ad litem.

At the hearing, the mother explained why she wanted the father's parental rights terminated. First, she testified that the father had limited contact with the child since her birth, visiting with her only two or three *316 times. She noted that the father had wanted more frequent visits, but was rebuffed because she did not "feel it's in the best interest of my daughter."

Second, the mother testified that she had found a photograph while rummaging through a box of pictures and "[w]hen I asked him what it was, he explained that he was masturbating, and he had ejaculated on his face." The appellate record does not reveal when the photograph was taken except that it antedated the child's birth.

The mother testified that the photograph incident gave her pause: "Well, the more I thought about it the more I realized I didn't know about him, and I thought if he was capable of a photograph like that, I have no idea what else he's capable of." She did testify, however, that all of the father's visits with the child, which she supervised, were uneventful. When asked why she "would want to monitor or deny him visits," the mother responded: "Well, I don't think he's had any experience with children, and I don't want to use my daughter as a guinea pig."

The father agreed that his parental rights to the girl should be terminated. He explained at the hearing that he had not established "any kind of relationship" with his daughter and thought that termination was in her best interest. When asked why he thought it was in her best interest, he explained:

I think that [the mother] is a very capable mother, and under the circumstances I do not wish to put that child in the middle between her and I [sic]. There has been no relationship between [the mother] and I [sic], and I don't want to make that child a pawn. I was raised under a single parent, and there was a great deal of frustration when the mother and *317 father were involved for me personally, and I do not want to do this to that child.

He further explained that he believed "it's possible that both of us could have a negative influence on that child." He recognized that if his rights were terminated, he would be relieved of his child support obligations, but asserted that he thought the elimination of that source of income would also be in her best interest.

At the time of the hearing, the mother was employed, earning approximately $20,000 per year. The father was also employed, but his earnings are not of record.[3]

In response to questioning by the trial court, the father confirmed that he wanted to terminate his parental rights and that he understood all of the consequences. There is no indication in the appellate record, however, that he considered any alternatives to termination.

The trial court found that the father's consent to termination was voluntary and granted the petition. After considering the two factors it believed weighed against termination, truncation of the father's support obligations to the child and the fact that termination would leave the child with one parent, the trial court concluded that termination was, nevertheless, in the child's best interests. It explained its rationale in an oral decision:

The child is almost two years old, and I think to continue the uncertainty that exists now into the future; that is, the uncertainty about his role by continuing *318 his legal status without any likelihood that he will act on it in any way or assert any relationship or interest in the child is perhaps most particularly a hardship on the mother, but inevitably that creates a hardship on the child because of the uncertainty that the mother will have in dealing with this situation, and as the child becomes old enough the inquired [sic] uncertainty the child will encounter in terms of who this person is and what his rights are, and I just don't see that as a very healthy situation.

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444 N.W.2d 415, 151 Wis. 2d 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-ab-wisctapp-1989.