Adoption of Randolph

Day, J.

(dissenting). I respectfully dissent from the majority opinion. In my opinion the trial court either legally abused its discretion or did not properly exercise its discretion in denying the petition for adoption of these two small children by the maternal grandparents, Mr. and Mrs. Donald Young.

Sec. 247.24 (1), Stats., although it is a statute dealing with annulment and divorce, by analogy provides ¹ that where the parents are unable to care for minor children, as they obviously are here, because they are deceased, the children should then go to a relative or to an agency, in that order, with the relative having obvious preference over an agency.

“Relative” is defined in sec. 48.02 (12), Stats., as:

“ ‘Relative’ means a parent, grandparent, brother, sister, uncle or aunt. This relationship may be by consanguinity or direct affinity.” (Emphasis added.)

The Carrons in this case do not fit into any of those categories. Mrs. Carrón is a first cousin of the children’s deceased mother and has no more standing under the statute than a complete stranger.

It is obviously the legislative intent that whatever “rights” a parent may have when those rights are terminated for whatever reason, care and custody of minor children then go to the grandparents. Even if the statute were to be interpreted as meaning that all of these relatives stood on an equal footing, it would certainly mean that the Carrons have no standing at all under this statute.

Parents do have “rights” with respect to their children and it has been given to them by the legislature. Sec. 48.01 (3), Stats., of the Children’s Code, provides:

“This chapter shall be liberally construed to effect the objectives in sub. (2). The best interests of the child shall always be of paramount consideration, but the court shall also consider the interest of the parents or guardian of the child and the interest of the public.” (Emphasis supplied.)

I disagree that LaChapell v. Mawhinney (1975), 66 Wis. 2d 679, 225 N. W. 2d 501, overrules the basic holding in Ponsford v. Crute (1972), 56 Wis. 2d 407, 202 N. W. 2d 5, wherein this court in Ponsford said:

“ *. . . before a trial court can deprive the natural parents of custody, there must be findings supported by the evidence sufficient to show that both natural parents are either unfit or unable to adequately care for the children.’ ”

The facts in LaChapell are entirely different than they were in Ponsford or than they are in the case at bar. The majority opinion in LaChapell said, page 684:

“Here the trial court made findings that prior to the death of Alice Mawhinney, the father had abandoned the children, that he had failed to provide necessities for them, that he had failed to display any interest whatsoever in the children and had illicitly lived with a woman he has since married. Here the children have expressed a desire to remain with the grandparents.”

In a concurring opinion two of the justices stated they were prepared to state “. . . that the plaintiff husband was unfit as a matter of law.” The case was sent back so that the trial court could appoint a guardian ad litem to represent and speak for the best interests of the children at a new hearing to be held.

The record in this case indicates that the grandparents far from being “too old” were in good health, already taking care of a nine-year-old boy, the half brother of these children, whom they had adopted. The record shows these grandparents are well able to take care of these children. Grandparents have been taking care of children in our society since time immemorial. If only an abstract “best interest of the child” concept is followed, it would mean that any time that younger, wealthier, more socially interesting people wanted to adopt someone’s children, it could easily be argued that it would be in such children’s “best interest” to be adopted by such people if they were obviously superior to the natural parents, who might be poorer, less educated and less able to provide the luxuries of life. Such a concept naturally follows when the “rights” of blood members of the family are ignored and when the natural ties of affection that come from being closely related are cast aside. But blood and kinship ties cannot be ignored. It is in recognition of what has been the universal experience of mankind over the generations that has prompted the legislature both to recognize the natural rights of the parents and to grant custody to close relatives when the parents, for whatever reason, cannot properly function as such. In this case the love and affection of these grandparents are abundantly clear from the record and from the great length they have gone to on moderate means to adopt these children. The Carrons did not try to adopt these children and while they say they would be willing to, the fact is that only the grandparents have made the move. The Carrons would lose the $190 per month in social security benefits paid for the support of these children if they adopted them. It has been a lop-sided comparison between the twenty-six-year-old guardian and the fifty-year-old grandmother that resulted in the Carrons being allowed to have custody in the first instance. At that time the judge in awarding the temporary custody of these children to the Carrons on the 6th day of January, 1972, said: “I think both of the petitioners are highly desirable people. . . . Balancing everything, I feel that a younger couple is better capable of over the years giving these children everything they should have.”

At the hearing in September, 1973, the guardian ad litem stated:

“There is no question in my mind that both the Youngs and the Carrons are suitable, fit and capable to take care of these little children. . . . Are the prospective parents fit and responsible persons in whose home the child is to be placed ? I think they are, the Youngs.”

However, the guardian ad litem recommended against the adoption because of the alleged “separation trauma” because the children had been with the Carrons for several months and there was testimony that this would be “upsetting” to these small children to be separated from the Carrons and placed with their grandparents. Anyone familiar with small children knows that this type of separation trauma is of short duration and had children of this age been with others than their parents because of the parents temporary inability to care for them because of prolonged illness or having to be out of the country, it would be a rare case where a court would say, “You have been away for 20 months; you can’t have your children!” This is a very slim reed to lean on in depriving custody to the ones whom the statute designates as next in line for custody after the natural parents. The trial judge in denying the petition for adoption nowhere finds that the Youngs are not fit and proper people to have the custody of their grandchildren.

I would reverse.

I am authorized to state that Mr. Justice Beilfuss and Mr. Justice Hanley join in this dissent.

1 “247.24 Judgment; care and custody, etc., of minor children. (1) In rendering a judgment of annulment, divorce or legal separation, the court may make such further provisions therein as it deems just and reasonable concerning the care, custody, maintenance and education of the minor children of the parties, and give the care and custody of the children of such marriage to one of the parties to the action, or, if the interest of any such child demands it, and if the court finds either that the parents are unable to adequately care for any such child or are not fit and proper persons to have the care and custody thereof, may declare such child a dependent and give the care and custody of such child to a relative (as defined in ch. 1¡.8) of the child, a county agency specified in s. 48.56 (1), a licensed child welfare agency, or the department of health and social services. The charges for such care shall be pursuant to the procedure under s. 48.27.” (Emphasis supplied.)