T. G. v. Cir. Ct. for Ashland Cty. (In re M. M. C.)

411 Wis. 2d 389

In the matter of the adoption of M. M. C.:

A. M. B., Petitioner-Appellant,

T. G., Appellant,

v.Circuit Court for Ashland County, the Honorable Kelly J. McKnight, presiding, Respondent.

Supreme Court

No. 2022AP1334, Oral argument September 11, 2023.— Decided April 30, 2024.

2024 WI 18

(Also reported in 5 N.W.3d 238.)

APPEAL from a judgment and an order of the Circuit Court for Ashland County, Kelly J. McKnight, Judge. Affirmed.

For the petitioner-appellant, there were briefs filed by John R. Carlson, Carla J. Smith, Linda I. Coleman, and Spears, Carlson & Coleman, S.C., Washburn. There was an oral argument by Carla Jean Smith and John R. Carlson.

For the respondent, there was a brief filed by Lynn K. Lodahl, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lynn K. Lodahl, assistant attorney general.

An amicus curiae brief was filed by Daniel R. Suhr, and Hughes & Suhr LLC, Chicago, IL, on behalf of Wisconsin Family Council.

¶ 1. REBECCA GRASSL BRADLEY, J. A creature of statute, adoption confers legal rights and duties on adopted children and their adoptive parents. The legislature has made policy choices regarding the circumstances under which children may be adopted and by whom. A.M.B. is the biological mother of M.M.C. and wishes to have her nonmarital partner, T.G., adopt M.M.C. Under the adoption statutes, T.G. is not eligible to adopt M.M.C. because T.G. is not A.M.B.'s spouse. A.M.B. and T.G. allege the legislatively drawn classifications violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in denying T.G. the right to adopt M.M.C. and in denying M.M.C. the right to be adopted by T.G. Because the adoption statutes do not restrict a fundamental right or regulate a protected class, we consider whether any rational basis exists for the legislative limits on eligibility to adopt a child. Among other legitimate state interests, promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge; therefore, we affirm the circuit court.¹

I. BACKGROUND

A. The Adoption Statutes

¶ 2. Wisconsin Stat. ch. 48, subchapter XIX, establishes legal adoption and specifies the circumstances under which a child may be adopted as well as who is eligible to adopt. Under Wis. Stat. § 48.81 (2021-22),² a child who is present in the State of Wisconsin when the adoption petition is filed may be adopted under any of the following four scenarios: (1) the parental rights of both parents have been legally terminated; (2) both parents are deceased; (3) the parental rights of one parent have been terminated and the other parent is deceased; or (4) "[t]he person filing the petition for adoption is the spouse of the child's parent with whom the child and the child's parent reside."³ § 48.81(1)-(4); Rosecky v. Schissel, 2013 WI 66, ¶ 44, 349 Wis. 2d 84, 833 N.W.2d 634. Subsection (4) applies only if the child's other parent is deceased or his parental rights have been terminated. § 48.81(4)(a)-(b). Colloquially called the "stepparent" exception, this provision permits a stepparent to adopt his spouse's child while the spouse's parental rights remain intact. See Wis. Stat. § 48.92(2).

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¶ 3. The adoption statutes additionally identify three classifications of individuals who may adopt an eligible child: "A husband and wife jointly," "either the husband or wife if the other spouse is a parent of the minor," or "an unmarried adult." Wis. Stat. § 48.82(1)(a)-(b). The statutes do not allow two unmarried adults to jointly adopt a minor. Nor do the statutes permit a nonmarital partner to adopt his partner's child. Omitting those categories of unmarried individuals from the list of eligible persons who may adopt means the law does not qualify them as adoptive parents. "Under the doctrine of expressio unius est exclusio alterius, the 'express mention of one matter excludes other similar matters [that are] not mentioned.' " James v. Heinrich, 2021 WI 58, ¶ 18, 397 Wis. 2d 517, 960 N.W.2d 350 (alteration in original) (quoting FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶ 27, 301 Wis. 2d 321, 733 N.W.2d 287); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012) ("[T]he principle that specification of the one implies exclusion of the other validly describes how people express themselves and understand verbal expression."),

¶ 4. The adoption subchapter also describes the legal effect of adoption on the child, the child's birth parents, and the child's adoptive parents. Wis. Stat. § 48.92. Upon entry of an order of adoption, all legal rights, duties, and "other legal consequences" of the relationships between the birth parents and the child are forever altered and "cease to exist." § 48.92(2). If, however, the adoptive parent is married to the child's birth parent, the adoption by the stepparent extinguishes the legal rights, duties, and "other legal consequences" only with respect to the birth parent who is not the spouse of the adoptive parent. § 48.92(2).

B. Facts and Procedural History

¶ 5. A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental rights of M.M.C.'s biological father have been terminated. Based on T.G.'s fatherly bond and relationship with M.M.C., T.G. filed a joint petition with A.M.B. to adopt M.M.C.

¶ 6. Prior to the adoption hearing, the county department of human services generated a "Home Study Report," which included a background check of T.G., a review of T.G.'s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption.

¶ 7. On June 20, 2022, the circuit court held a hearing on the adoption petition. At the outset, the court raised concerns over its authority to grant the petition given the criteria for adoption under Wis. Stat. § 48.81, despite having determined the adoption would be in the best interests of the child, M.M.C. The circuit court cited this court's decision in Georgina G. v. Terry M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994), which the circuit court summarized as precluding "an adoption to a third party who is not the spouse of the parent." Because T.G. was not married to A.M.B., the circuit court determined T.G. was not statutorily eligible to adopt M.M.C. and denied the adoption petition.

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¶ 8. A.M.B. and T.G. appealed the circuit court's decision, arguing that Wis. Stat. §§ 48.81 and 48.92(2) violate the equal protection rights of M.M.C. and T.G. The state asked the court of appeals to affirm the denial of the adoption petition under Georgina G., 184 Wis. 2d 492, in which this court decided an earlier but substantially similar version of the governing statute⁴ did not violate the equal protection clause. Because the court of appeals cannot "overrule, modify or withdraw language from a previous supreme court case[,]" Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), A.M.B. and T.G. petitioned this court for bypass of the court of appeals, which this court granted.⁵

¶ 9. The adoption statutes do not implicate a fundamental right under the United States or Wisconsin Constitutions, nor do the statutes affect a protected class of individuals. Accordingly, the statutory classifications establishing eligibility to adopt or to be adopted must be rationally related to a legitimate state interest in order to withstand A.M.B.'s challenge. Because a rational basis exists for the legislature's policy choice to preclude an adoption by the non-marital partner of a birth parent, we hold the statutes do not violate the Equal Protection Clause and we therefore affirm the circuit court's denial of the adoption petition.

II. STANDARD OF REVIEW

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¶ 10. A.M.B. and T.G. bring a facial challenge to the constitutionality of the adoption statutes on equal protection grounds. The constitutionality of a statute is a question of law this court reviews de novo. Blake v. Jossart, 2016 WI 57, ¶ 26, 370 Wis. 2d 1, 884 N.W.2d 484 (citing Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 613 N.W.2d 849). A party bringing a facial challenge to the constitutionality of a statute must show that the "State cannot enforce the law under any circum- stances." Id. (citing State v. Wood, 2010 WI 17, ¶ 13, 323 Wis. 2d 321, 780 N.W.2d 63).

III. ANALYSIS

¶ 11. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution states, "No state shall … deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 2.⁶ A.M.B. and T.G. allege the adoption statutes are facially⁷ unconstitutional because Wis. Stat. § 48.81 treats the children of single parents differently than children with two married parents and treats unmarried romantic partners differently than spouses. Petitioners claim these classifications are arbitrary and not rationally related to a valid state interest.

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¶ 12. In reviewing the constitutionality of a statute under an equal protection analysis, the court first identifies the appropriate level of scrutiny. State v. Alger, 2015 WI 3, ¶ 39, 360 Wis. 2d 193, 858 N.W.2d 346. We consider whether the statute implicates a fundamental constitutional right or "whether a suspect class is disadvantaged by the challenged legislation." State v. Smith, 2010 WI 16, ¶ 12, 323 Wis. 2d 377, 780 N.W.2d 90. If either is true, the court generally⁸ applies strict scrutiny. Id.

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¶ 13. If a fundamental constitutional right is not at stake and a protected class is not...