Wisconsin Court Case: Custody of Jeffrey A.W.

In re the Custody and Visitation of Jeffrey A.W., Elgin and Carol W., Petitioners-Appellants, v. Wisconsin Department of Health and Family Services, Respondent-Respondent. In the Matter of the Guardianship of Jeffrey A.W., Elgin and Carol W., Petitioners-Appellants, v. Wisconsin Department of Health and Family Services, Respondent-Respondent, Jeff and Tamra T., Interested Party. 

COURT OF APPEALS OF WISCONSIN 

221 Wis. 2d 36; 584 N.W.2d 195

May 11, 1998, Submitted on Briefs 

July 16, 1998, Dated 

July 16, 1998, Opinion Filed 

Appeal from orders of the circuit court for Dane County.

Judgment affirmed. 

COUNSEL:
On behalf of the petitioners-appellants, the cause was submitted on the briefs of Judith Sperling Newton, Carol M. Gapen, and Laura Skilton Verhoffof Stafford, Rosenbaum, Rieser & Hansen of Madison. 

On behalf of Jeffrey A.W., a brief was submitted by Lois E. Rentmeesterof Madison, guardian ad litem. 

On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with Laura Sutherland, assistant attorney general. 

JUDGES:
Judge Eich, Judge Dykman, Judge Roggensack, and J. ROGGENSACK(dissenting). 

EICH, C.J. 
Elgin and Carol W., the maternal grandparents of Jeffrey A.W., appeal from orders dismissing their petitions for custody, guardianship and visitation. The parental rights of Jeffrey's biological father and mother were terminated in an earlier proceeding, and his guardian ad litem and the Dane County Department of Human Services, in whose custody Jeffrey had been placed pursuant to an earlier CHIPS (Child in Need of Protection and Services) adjudication, opposed the petitions, arguing that the termination of their daughter's parental rights to Jeffrey-and his adoption by another couple-precluded Elgin and Carol from establishing their claims as a matter of law. The trial court agreed and dismissed the petitions.
Elgin and Carol appeal, arguing that the trial court's dismissal orders were in error because: (1) they have a statutory right to petition for Jeffrey's custody and guardianship; (2) their petition for visitation stated an "equitable" claim pursuant to the supreme court's decision in Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995); and (3) the court's orders violate their constitutional rights in several respects. We reject their arguments and affirm the orders.
Jeffrey was born in 1988 and for the first three years of his life his parents changed their residence many times, occasionally living in Elgin and Carol's home. In December 1991, when his mother was imprisoned (his father had deserted them), Jeffrey and his older half-brother, Jeremy, were temporarily placed in Elgin and Carol's home. In April 1994, Elgin and Carol turned Jeffrey over to the department and he was placed in a foster home, where Elgin and Carol continued to visit him. In June 1996, Jeffrey's mother's and father's parental rights were terminated and, several weeks later, his foster parents petitioned to adopt him. Problems arose during the department's investigation of the petition, however, and Jeffrey was placed with a second set of foster parents, Jeff and Tamra T., on February 6, 1997.
After Jeffrey's placement with Jeff and Tamra, Elgin and Carol began visiting him at Jeff and Tamra's home. A week or so later, however, after receiving reports of concern from Jeffrey's teachers, therapist and foster parents regarding his "emotional/behavioral ups and downs" following the visits, the department suspended Elgin's and Carol's visitation rights in order to permit Jeffrey to "get 'on an even keel' emotionally in his present foster home and at school."