State v. D.W. Jr., 2022AP1397, 10/18/22, (1-judge opinion, ineligible for publication); case activity
D.W. Jr. has along criminal history. He was incarcerated when his son, J.W., was born, and the two had never lived together. In fact, J.W. and his brother lived with a foster parent, who was also an adoptive resource for both of them. When the circuit court terminated D.W.’ Jr.’s parental rights, he argued that the court neglected to consider a dispositional alternative– the appointment of a guardian for J.W. It didn’t fly.
D.W., Jr. had hoped that either T.M., a woman whom he thinks of as a maternal grandmother, or his sons’ foster parent would serve as J.W.’s guardian until he was released from prison.
The court of appeals held that the circuit court was not legally required to make any findings relating to a possible guardianship. Indeed, the case D.W. Jr. relied upon, A.B. v. P.B., 151 Wis. 2d 312, 444 N.W.2d 415 (Ct. App. 1989), applies only to the voluntary termination of parental rights.
In contrast, Sheboygan Cnty. DHHS v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648 N.W.2d 402., holds that the parties “‘may make alternative dispositional recommendations to the [trial] court,’” but the trial court “shall consider” the best interest factors set forth in WIS. STAT. § 48.426(3). Julie A.B., 255 Wis. 2d 170, ¶29 (citation omitted).
Furthermore, requests for the appointment of a guardian are governed by § 48.9795, which requires a petition for guardianship. At the time of the disposition hearing, there was no petition for guardianship of J.W. pending. Nor was there any evidence that T.M. or the foster parent was a viable guardian. Opinion, ¶¶21-22.
The court of appeals also held that the circuit court considered all of the best interests of the child factors in § 48.426(3). It, therefore, affirmed the termination of D.W. Jr.’s parental rights.
