In Matter of the Guardianship of James Dk

2006 WI 68, 718 N.W.2d 38, 291 Wis. 2d 333, 2006 Wisc. LEXIS 363

• Court: Wisconsin Supreme Court
• Decided: June 13, 2006
• Docket: 2004AP767
• Status: Published

Opinions

LOUIS B. BUTLER, JR., J.

¶ 1. Robin K. ("Robin") seeks review of an unpublished court of appeals' decision that affirmed an order of the circuit court for Sauk County, Honorable James Evenson, denying Robin's petition for guardianship of James D. K. ("James").¹ Robin K. v. Lamanda M., 2004AP767, unpublished slip op., ¶ 1 (Wis. Ct. App. Nov. 11, 2004).

¶ 2. At issue in this case is the proper standard a circuit court must impose in considering a guardianship petition involving a minor when a parent objects, pursuant to Wisconsin Statutes Chapter 880 (2003-04).² Robin asserts that the circuit court and the court of appeals erred in denying her the guardianship appointment.

¶ 3. We conclude that when a parent objects, a court is authorized under chapter 880 to appoint a nonparent as guardian of a minor if there exist extraordinary circumstances affecting the health or safety of the minor. We further conclude that the record does not support a finding that the required extraordinary circumstances exist in the present case. Accordingly, we affirm the decision of the court of appeals.³

HH

¶ 4. Robin filed a petition for guardianship of James on November 5, 2003, under chapter 880 of the Wisconsin Statutes.⁴ In the petition, Robin alleged that (1) James had been living with her for the past two and one-half years; (2) both parents had little contact with the child; and (3) both parents were unable to give proper care to James. According to Robin, the guardianship was necessary to allow her to obtain essential services for the child, including medical services, particularly when James traveled with Robin to other states.

¶ 5. James was three years old when the guardianship petition was filed. Robin contends that she had primary responsibility for the care and welfare of James for the vast majority of his life. Robin alleges James had been living with her since he was six months old. According to Robin, Lamanda M. ("Lamanda"), James's mother, refused to financially support her son during the two-and-a-half years prior to the filing of the petition. Robin further asserts that Lamanda voluntarily allowed Robin to care for James up until the point that Robin filed for guardianship.⁵

¶ 6. Lamanda opposed the petition.⁶ Lamanda contends that Robin misrepresents the amount of time James truly spent with Robin. Lamanda observes that the circuit court only assumed, for purposes of the decision, that Robin spent a great deal of time with James and made no finding as to the amount of time Robin actually spent with the child.

¶ 7. On December 3, 2003, a hearing was held on Robin's petition for guardianship in Sauk County Circuit Court before the Honorable James Evenson. The guardian ad litem appointed to represent James recommended that the guardianship be granted to Robin. At the hearing, Lamanda asserted that she allowed James to visit with Robin periodically and to go on trips to California at Robin's request. Lamanda disputed Robin's contention that Robin was the primary caregiver for James:

I never thought that I couldn't take care of my son. That's not why I let [Robin] take [James] to California and keep him over night. She would ask me if I would let her take him to California. And, at first, I would let him go. And then, when she was here, she would want to take him for a few days or for a week and I would agree with it, because he likes going over there. I wasn't — that was my family. She was my aunt. I trusted her. I remember going over there when I was a young girl and I would like playing out in the yard and going fishing and going swimming. That's the only reason I let him go over there. I never once thought I wasn't capable enough of taking care of my son.

¶ 8. The circuit court denied Robin's petition for guardianship. The court indicated that it had difficulty with the guardianship statutes in that they did not seem to be designed for a case like the present case. The court expressed concern that the guardianship statutes offered no guidance on commencing a guardianship action, and no standards concerning when and how a guardianship should end.

¶ 9. The circuit court concluded that there was no evidence that Lamanda neglected her children, and that the fact that Human Services had not taken the other children from the home was tacit approval that home placement was appropriate, subject to certain programming. Therefore, the circuit court rejected the recommendation of the guardian ad litem and denied the petition for guardianship.

¶ 10. Robin appealed the circuit court's decision. On appeal, Robin asserted that the parental preference established by Wis. Stat. § 880.09(2)⁷ required the circuit court to appoint a guardian if the court found James's parents "unsuitable and unwilling" to care for James. Robin further asserted that Lamanda was unsuitable. In contrast, Lamanda argued that the court must apply the higher standard of "unfitness" under Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).⁸

¶ 11. The court of appeals affirmed the circuit court, concluding that in a guardianship proceeding between a nonparent and a parent, the parent must be proven "unfit" consistent with the standard set forth in Barstad. Robin K., 2004AP767, unpublished slip op., ¶¶ 1, 3-4. Robin seeks review, and we affirm.

l-H HH

¶ 12. This case presents mixed questions of fact and law, including questions of statutory interpretation. A circuit court's decision on whether to appoint a guardian involves a determination by the court based on the court's review of the facts of the case. See Anna S. v. Diana M., 2004 WI App 45, ¶ 7, 270 Wis. 2d 411, 678 N.W.2d 285. Such a determination is within the discretion of the circuit court judge. Id. We give deference to the circuit court's factual findings unless clearly erroneous. Howard M. v. Jean R., 196 Wis. 2d 16, 20, 539 N.W.2d 104 (Ct. App. 1995). Therefore, "[w]e affirm discretionary decisions if the circuit court applies the proper legal standard to the relevant facts and uses a rational process to reach a reasonable result." Anna S., 270 Wis. 2d 411, ¶ 7 (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)). Although the circuit court's factual determinations and discretionary decisions are given deference, "[wjhether the circuit court applied the correct legal standard in exercising its discretion presents a question of law, which we review de novo." Id. (citing F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999)).

¶ 13. We also review statutory interpretation de novo. State v. Reed, 2005 WI 53, ¶ 13, 280 Wis. 2d 68, 695 N.W.2d 315. The purpose of statutory interpretation is to give the statute its full, proper, and intended effect. Id. (citation omitted). "We begin with the statute's language because we assume that the legislature's intent is expressed in the words it used." Id. We refrain from interpreting statutory language in isolation and interpret the language in the context in which it is used to avoid absurd or unreasonable results. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning is plain from the language of the statute, we ordinarily stop the inquiry. Reed, 280 Wis. 2d 68, ¶ 13 (citation omitted).

I — I HH I — H

¶ 14. In this action, we are asked to determine the appropriate standard for a circuit court to use in deciding whether to appoint a nonparent as a guardian for a minor under chapter 880 when the minor's parent objects.⁹ The case requires us to review chapter 880 in general, focusing on the application of Wis. Stat. § 880.03¹⁰ in particular.

¶ 15. Chapter 880 codifies certain guardianships for children in Wisconsin.¹¹ Under chapter 880, when a court appoints a guardian for a minor, that guardian is entrusted with the "care, custody and control" of the minor.¹² Prior to determining who should be appointed as a guardian, a court must first hold a hearing to determine if the child is "the proper subject for guardianship" and in need of a guardian.¹³ While all minors are potentially subject to guardianship, the relevant statute directs a court to appoint a guardian when there exist "extraordinary circumstances" requiring medical aid or the prevention of harm to the minor's person or property. Wis. Stat. § 880.03.¹⁴

¶ 16. The legislature has not defined "extraordinary circumstances" under this section, and this court has not previously discussed what would constitute "extraordinary circumstances" under the guardianship statutes. In construing a statute, this court ascertains and gives effect to the legislative intent. State v. Petty, 201 Wis. 2d 337, 355, 548 N.W.2d 817 (1996). "In accord with the canons of statutory construction, [this court] give[s] words their ordinary and accepted meanings so as not to render any part of the statute superfluous." Id. at 356-57. This court often relies upon definitions of that word in a "recognized dictionary to determine the common and ordinary meaning of the word." Mared Industries, Inc. v. Mansfield, 2005 WI 5, ¶ 32, 277 Wis. 2d 350, 690 N.W.2d 835 (quoting State v. Polashek, 2002 WI 74, ¶ 19, 253 Wis. 2d 527, 646 N.W.2d 330). The applicable dictionary definition of "extraordinary" is "beyond what is ordinary or usual." American Heritage Dictionary 649 (3d ed. 1992). Black's Law Dictionary defines "extraordinary circumstances" as "[f]actors of time, place, etc., which are not usually associated with a particular thing or event; out of the ordinary factors." Black's Law Dictionary 586 (6th ed. 1990). We conclude that the statute is clear and unambiguous: the statute authorizes courts to appoint a guardian only in cases where circumstances out of the ordinary require medical aid, or in cases where circumstances out of the ordinary require the appointment of a guardian in order to prevent harm to the person or property.

¶ 17. In proceedings for the appointment of a guardian, the burden of proof by clear and convincing evidence rests upon the party seeking guardianship. See Colliton v. Colliton, 41 Wis. 2d 487, 491, 164 N.W.2d 480 (1969) (addressing the appointment of a guardian due to mental incompetency); Cheryl F. v. Sheboygan County, 170 Wis. 2d 420, 425, 489 N.W.2d 636 (Ct. App. 1992) (addressing the appointment of a guardian due to mental incompetency). We next examine whether Robin established, by clear and convincing evidence, the existence of extraordinary circumstances requiring medical aid or the prevention of harm, which would allow the court to appoint Robin as the guardian of James over the objections of James's mother.

¶ 18. We begin our analysis by observing that the record before us is incomplete.¹⁵ Full transcripts of the various hearings referenced in the parties' briefs were not made available. Our review is therefore limited to those parts of the record that are made available to us. Ryde v. Dane County, 76 Wis. 2d 558, 563, 251 N.W.2d 791, 793 (1977) (holding that the lack of a transcript "merely limits the review to those portions of the record that are available to the reviewing court"). Even when we examine a limited record, however, our standard of review does not permit us to second-guess the circuit court's factual findings. See Howard M., 196 Wis. 2d at 27.

¶ 19. In the present case, the circuit court found Lamanda's home "somewhat chaotic," and noted the existence of "some general allegations of neglect." However, the court concluded that there were no specific signs of neglect to any of Lamanda's children. The circuit court further found that because the Wisconsin Department of Human Services decided against removing Lamanda's other children, the department had tacitly approved that James's home placement was appropriate, subject to certain programming. Based on this finding, the court ruled that guardianship was inappropriate in this case.

¶ 20. Upon review of the record, we conclude that the circuit court's findings of fact are not clearly erroneous. We further conclude that Robin failed to establish by clear and convincing evidence that extraordinary circumstances exist requiring medical aid or the prevention of harm with respect to James. We agree with the circuit court that on the basis of this record, no need for a guardian has been shown.

¶ 21. In sum, we conclude that in evaluating a petition for a permanent guardianship on behalf of a minor filed by a nonparent when a parent objects, a court must first determine whether the party bringing the guardianship petition has shown that the child is in need of a guardian because there exist extraordinary circumstances requiring medical aid or the prevention of harm. Absent a showing of such extraordinary circumstances or need for a guardian, the court cannot appoint a guardian.

IV

¶ 22. We conclude that under chapter 880, a court is authorized to appoint a guardian for a minor when a parent objects when there exist extraordinary circumstances affecting the health or safety of the minor. We further conclude that the record in the present case does not support a finding of the requisite extraordinary circumstances or any need to appoint a guardian. Accordingly, we affirm the decision of the court of appeals on other grounds.

¶ 23. By the Court. — The decision of the court of appeals is affirmed.

1 Robin is James's great aunt.

2 All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

3 Although we affirm the court of appeals, we do so on other grounds.

The court of appeals ruled that because Robin failed to assert that Lamanda was an unfit mother, Robin failed to meet the Barstad standard. Barstad v. Frazier, 118 Wis. 2d 549, 568, 348 N.W.2d 479 (1984).

Barstad examined the constitutional implications of a custody dispute between a parent and a nonparent third party. Id. at 562. The court recognized "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child," id., and established criteria constitutionally required in custody disputes between parents and nonparents:

[ 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.

Id. at 568.

The present case involves the application of Wis. Stat. § 880.03 to a dispute over guardianship between a parent and a nonparent, which may present different concerns than other guardianships. See Howard M. v. Jean R., 196 Wis. 2d 16, 539 N.W.2d 104 (Ct. App. 1995). The statute grants courts the authority to appoint a guardian if there exist "extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property." Id.

We note that there may be similarities between the statutory requirement that a court find "extraordinary circumstances requiring medical aid or the prevention of harm to his or her person," Wis. Stat. § 880.03, and the Barstad requirement that a court find "[c]ompelling reasons including] abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child," Barstad, 118 Wis. 2d at 568. Because we conclude that Robin has failed to meet the statutory requirements under Wis. Stat. § 880.03, we decline to reach the constitutional concerns raised in Barstad, or whether the statutory requirements concerning "extraordinary circumstances" are essentially the same as the constitutionally required "compelling reasons." We do not normally decide constitutional questions if the case can be resolved on other grounds. Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984).

4 We note that in her November 5, 2003 petition, Robin asked the court to appoint her as James's permanent guardian. However, on November 13, 2003, Robin also filed a petition for temporary guardianship of James. Although the record fails to clarify the nature of the guardianship at issue in this case, we determine that the circuit court addressed Robin's request as a request for permanent guardianship. We draw this conclusion because the circuit court noted its concern that the guardianship statutes "have no seeming end;" yet, by law, a temporary guardianship can last no longer than 120 days. Wis. Stat. § 880.15.

5 According to Robin's affidavit, upon filing for guardianship, James was removed from Robin's care.

6 We presume for purposes of this appeal that James's father, William L. ('William"), did not oppose the petition. The sparse record indicates that William planned to nominate Robin K. as the guardian of James D. K. because he was "unable to perform the duties of a guardian at the present time." The record from the hearing includes only hand-written notes from the clerk and indicates that William testified over the phone. We have no additional information as to the content of William's testimony. The trial court record before this court bears no reference to William's decision not to oppose the petition.

7 That section reads as follows:

(2) PREFERENCE. If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under s. 880.35 only if no suitable individual guardian is available.

Wis. Stat. § 880.09(2).

8 In Barstad, this court concluded:

the rule to be followed in custody disputes between parents and third parties is 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.

Barstad, 118 Wis. 2d at 568.

9 When a nonparent files a petition for guardianship over the objections of the child's parent, the nonparent is asking the court to grant the third party the right to make decisions regarding the "care, custody and control" of the child. Wis. Stat.§ 880.01(3). Because the appointment of a guardian for a minor over the objections of a parent gives major decision-making authority to a non-parent regarding how the child will be raised, decisions usually reserved for a child's parent(s), a guardianship appointment of a nonparent implicates the constitutionally protected rights of parents. Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (concluding that due process prevents a state from infringing on the "fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made.") (citations omitted). Because we resolve this matter on statutory grounds in the parent's favor, we decline to reach the constitutional issues otherwise implicated here.

10 Section 880.03 reads:

Persons and estates subject to guardianship. All minors, incompetents and spendthrifts are subject to guardianship. The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the comity, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property found in the county. The court may appoint a guardian of the estate of anyone subject to guardianship, whether a resident of the state or not, if any of the estate is located within the county. Separate guardians of the person and of the estate of a ward may be appointed.

Wis. Stat. § 880.03.

On May 10, 2006, the Wisconsin Legislature repealed Wis. Stat. § 880.03. 2005 Wis. Act. 387, § 307. This Act, among other things, creates chapter 54 to address the appointment of a guardian. 2005 Wis. Act. 387, § 100.

Under the newly created chapter 54, "A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor." Wis. Stat. § 54.10(1) (2005-06).

11 See also Wis. Stat. §§ 48.831 and 48.977.

12 Wis. Stat. § 880.01(3).

13 Wisconsin Statute § 880.12 reads, in relevant part:

Determination and order appointing guardian. (1) The court shall after hearing determine whether the person is a proper subject for guardianship. If the person is found to be in need of a guardian, the court shall appoint one or more guardians but not more than one guardian of the person shall be appointed unless they be husband and wife.

14 The statute reads, in relevant part:

The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the county, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property ....

Wis. Stat. § 880.03 (emphasis added).

15 We note that the parties failed to explicitly address whether the present case is a proper situation to impose a guardianship and, instead, limited their briefs to an analysis of who the court should appoint as guardian. As discussed earlier, Robin asserted on appeal that the parental preference established by Wis. Stat. § 880.09(2) required the circuit court to appoint her as guardian if the court found James's parents "unsuitable and unwilling” to care for James. Lamanda responded that instead of applying the standard of "unsuitable and unwilling" the court must apply a higher standard of "unfitness" under Barstad. The parties' arguments are misdirected. Section 880.09(2) addresses whether a parent should be given, preference when the court is deciding who to appoint as a guardian. This section is inapplicable if the court does not first determine that there exist conditions for a guardianship in the first place.

Although this court often requests briefs when an issue is raised sua sponte, this court has "decline[ed] to adopt a per se rule requiring courts to permit the submission of additional briefs whenever an issue is raised sua sponte." Bartus v. DHSS, 176 Wis. 2d 1063, 1073, 501 N.W.2d 419 (1993). In the present case, we find that additional briefing is unnecessary because the record and briefs contain adequate information to continue our analysis.