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Decision angers adoption advocates
February 1, 1998
Judge says uncle of orphaned girl can't adopt her as "blood relative."
A Milwaukee County Judge's denial of an adoption petition has prompted a possible change in State adoption law.
Children's Court Judge Daniel L. Konkol stunned and angered adoption advocates when he ruled January 22 that the uncle of a 14-month orphaned girl did not fit the definition of "blood relative" because the uncle had been adopted as a child. Konkol then denied the uncle's petition to adopt his niece.
"I was in complete and utter disbelief" the uncle, 30, said this week.
He said he never expected a Court of law to say "I'm not a relative to my sister and the baby I assisted my parents in bringing up." In effect, the Judge's ruling erased 27 years of a close brother-sister relationship, the uncle said.
The families involved in the case are not being identified to protect the confidentiality of the child.
Rep. Jeff Plale (D-South Milwaukee) said he intends to introduce legislation to "correct this gray area of the law." The proposal will be co-sponsored by Rep. David Ward (R-Oakland).
The statute in question says that an adoption petition may be filed at any time if one of the petitioners is a "relative of the child by blood", except for parents whose paternal rights have been terminated and their relatives.
Plale contends Konkol may not have interpreted the statute correctly. "In the past, Judges have not made a discrimination between an adopted sibling and a blood sibling" Plale said. Konkol "really sent a terrible message" to adopted people, Plale said, noting that the statute needs to be clarified.
Melinda Randa, who has headed a State-licensed adoption agency for 25 years and is an adoptive parent herself, said Konkol set adoption back 100 years and relegated adopted children to second-class citizens.
Randa, executive director of Adoption Choice, evaluated the Uncle and recommended that he become the child's adoptive father. Adopting a child is the same as giving birth-"that tie is very implicit and explicit in our statutes," Randa said.
But Konkol said the statute clearly states the uncle must be a "relative of the child by blood and he's a relative by law-there's not a blood connection. That part seems real simple."
As for sending the wrong message to adopted people, Konkol said : "I didn't make the law. I can't change the law. If people don't like that, they've got to contact the Legislature."
Under a separate State statute, a child who is adopted has all the rights, duties and other legal consequences as a child by birth. Konkol countered that is the statute dealing with adoption by a blood relative just said "relative of the child," the uncle's petition would not have been dismissed. But the statute went further and specified "relative by blood", Konkol said.
After dismissing the uncle's petition, Konkol awarded permanent custody to the child's godparents, who filed a petition for adoption the next day. The uncle plans to appeal Konkol's decision.
"Sometimes focusing on one word, you can end up with an absurd result," said James DeJong, the attorney handling the uncle's appeal.
If this ruling is left unchallenged, many believe it has "the potential for a great deal of uncertainty in the entire area of adoption law", he said.
Several Court observers said this is a rare case that likely won't affect most adoptions, most of which involve the termination of parent rights, or are uncontested. Yet most agreed the statue needs clarification.
Linda Ivanovic, attorney for the godparents, said the uncle attempted to gain a procedural advantage over her clients by petitioning as a blood relative to adopt the girl. The statute specifies blood relative, and "the Judge found blood means blood."
Stephen Hayes, a Milwaukee attorney who specializes in adoption law and has been involved in adoption legislation, said he found Konkol's decision surprising and troubling.
"What is troubling people about this decision is that you're moving away from a clear trend toward equality of treatment and condition between birth children and adopted children. They should be treated the same way," Hayes said.
He said Webster's new collegiate dictionary defines blood relative as a relationship by descent from a common ancestor; kinship. Under that definition, the uncle would be considered related by blood because an adopted child becomes part of the family lineage.
CLARIFICATION ASKED: But Hayes agreed the statute needs to be clarified.
"You wouldn't have this problem if this was clearer. . . . I would hope the eventual conclusion, whether by the Court or Legislature, would be that "by blood" would include an adopted person," he said.
The January 22 contested hearing was part of a bitter custody fight for the little girl between the grief-stricken families of the child's dead parents. The uncle is the adopted brother of the child's mother, who died of breast cancer last May. Eleven weeks later, the girl's father was killed in a car accident.
When both parents were alive, they had a Will naming the maternal grandparents as first choice for guardians; and the uncle as second choice. After the mother died, the father revoked that provision of the Will but failed to name any other guardian.
Court records reveal that both families have showered the child with love and provided stable, nurturing homes for her. The child has been alternating between maternal and paternal grandparents, spending five days at a time with each. The paternal grandparents were named temporary guardians.
Since July, both sets of grandparents have asked the Court to name them permanent legal guardians.
Later, the paternal grandparents stepped aside to allow the child's godparents-one of whom is the child's second cousin-to petition for guardianship. (Second cousins aren't included as relatives in adoption statutes, so the godparents couldn't petition to adopt as relatives.) The maternal grandparents also withdrew - in support of their son's petition to adopt his niece.
Both the uncle and godparents have been recommended by experts as being the more suitable adoptive parent, according to those involved in the case. But the uncle never got to present his case.
The night before the latest Court hearing, the godparents entered a motion asking the Court to dismiss the uncle's adoption petition, stating the didn't have legal standing because he was not a blood relative.
Konkol said the uncle still could petition for adoption but not as a blood relative.
The uncle, who is single and works as a federal agent, said he shouldn't have to use another procedure to adopt his niece.
"I am the closest relative who wants to adopt the baby" he said. "The (godparents) are second cousins. I am her uncle. I am a family member, they are not.I love (the baby) and I want to raise her.That was my sister's wish." hide article
Judge halts adoption pending appeal of "blood relative" ruling
February 5, 1998
A Milwaukee County Judge Wednesday suspended further proceedings in the contested adoption of a 14-month old orphaned girl pending a decision from the State Court of Appeals on his ruling last month that prompted a possible change in State adoption law.
In a decision that enraged adoption advocates, Children's Court Judge Daniel L. Konkol dismissed an adoption petition by the girl's uncle, ruling that the uncle did not fit the definition of "blood relative" because he had been adopted as a child.
Konkol then granted permanent guardianship to the girl's godparents, who since that ruling have filed a petition to adopt their godchild.
Attorneys for the uncle, bother of the child's mother, expect to file an appeal in a couple of days.
The decision came on the same day the State Assembly approved a bill that would grant adopted relatives the same rights as blood kin in adoptions.
The provision is a response to a call to clarify the definition of a relative in light of Konkol's ruling, which was criticized as a narrow interpretation. It wasn't clear, however, that the bill would apply to this case.
Though Konkol suspended adoption proceedings, he refused Wednesday to change his order granting the godparents custody of the child, saying guardianship was not significantly related to the adoption.
Dean Laing, an appellate attorney for the uncle, had asked the Court to maintain a custody arrangement that had been in effect since July. Under that arrangement, the child would spend five days with maternal grandparents, then five days with paternal grandparents. The paternal grandparents were the child's temporary guardians.
Laing argued it would be traumatic for the child to be placed with the godparents before a decision from the appeals court, which he believed would reverse Konkol's decision.
Linda Ivanovic, attorney for the godparents, and Sheryl St. Ores, Court-appointed guardian ad litem for the child, urged Konkol to place the child immediately with the godparents. Ivanovic criticized the maternal grandparents for putting the child in the media spotlight, saying the grandparents were "obsessed" by this case. hide article
Key adoption issue overlooked
February 15, 1998
Battle between families centers on what Court rules is best for orphaned child.
Ignored in the public furor over a Judge's adoption ruling is the question of who would be the better choice to rear a 14-month-old orphaned girl who is at the center of a contentious custody battle.
What is in her best interests being reared by a 30-year old single uncle with no definite plans to marry or by her godparents, a young married couple with a child of their own?
After months of Court hearings over the child's custody, the case was thrust into the spotlight last month. Children's Court Judge Daniel L. Konkol dismissed the uncle's petition to adopt his late sister's child, ruling the uncle did not fit the State's definition of "blood relative" because he had been adopted as a child. Konkol granted permanent guardianship to the godparents. The next day they filed for adoption.
The decision is still pending appeal, all adoption proceedings have been suspended until an appellate ruling.
Since Konkol's ruling, which enraged adoption advocates, the maternal grandparents have granted numerous interviews and promoted the story to print and broadcast media nationwide. Little has been heard from the paternal grandparents, we were temporary guardians.
"You wouldn't even know we existed" the paternal grandfather said last week. "There is another set of grandparents who have been active and involved" in the child's life.
After a great deal of soul-searching, the paternal grandparents, who withdrew their own petition for permanent guardianship-in favor of the godparents.
The maternal grandparents, who withdrew their own petition - in support of their son-disagree the godparents are a better choice. They contend their son, was stripped of his right to adopt his niece and fulfill a deathbed promise to his sister to raise her daughter if anything happened to the baby's father, they said.
Although the girl's parents' Will named the maternal grandparents as guardians and the uncle as second choice, the father revoked that after his wife died. He then died before designating anyone else.
Last May, the child's mother died of cancer at age 27. Eleven weeks later her father, 26, was killed in a car accident.
"That's when everything started. It's been a nightmare." The paternal grandfather said, referring to his son's death. "We haven't had a chance to really grieve for his loss because we've been in a kind of battle with the folks on the other side."
Initially, the custody dispute was between the two sets of grandparents. Then in November, the uncle and godparents (the godfather is a second cousin to the child) entered the fray. None of the parties is being identified to protect the child's confidentiality.
All petitioners were evaluated by a Court-appointed psychologist, who recommended the godparents as the best choice to raise the child, according to Court testimony. The paternal grandparents were second, the maternal grandparents were third, and the uncle was listed as the "fourth possibility."
Based on the merits of the case, the uncle's petition to adopt would not succeed, according to Court testimony from Sheryl St. Ores, the child's Court-appointed guardian ad litem. The godparents were favored because they could provide the child with a mother and father that were young enough to be an active part of her life for many years, according to Court testimony.
The choice of who would be the better parent for the little girl "is not a close call," St. Ores told the Court.
Initially, said the paternal grandmother, the psychologist recommended her and her husband as guardians because they were closer to the child-rearing experience and still have a teenager in the home, and because the paternal grandfather, 55, was younger than the maternal grandfather, 63.
Their elation was short-lived. Within hours, the godfather (their nephew) called and told them he and his wife were seeking guardianship.
"I was devastated, crushed," the paternal grandmother said. "I begged him not to do this."
After much discussion, the paternal grandparents realized the godparents would be considered a better choice.
In anticipation of the godparents getting guardianship, the grandparents invited the young couple to their home several times, and the little girl now seems happy with the family" the paternal grandmother said.
Both sets of grandparents are still in the grieving process, she said "and we now have to start a new beginning for our granddaughter's sake." hide article
Godparents seek new start for orphan
February 22, 1998
Couple says effort to adopt girl is what they think parents would have wished.
Peering over the top of their playpen, two chubby-cheeked girls- 9 months and 14 months old- grinned causing the young couple across the room to burst into laughter.
The father of the 9-month old looked fondly at his 14-month goddaughter and said: "She's lost so much. We're here to offer her a new beginning."
So far that hasn't been easy. The 14-month old is at the center of a highly publicized adoption controversy and bitter custody fight. She as orphaned when her father was killed in a car accident last July - 11 weeks after her mother died of cancer.
The godparents were the ones who found the father's body in a field several feet from where he had been thrown from the car. And their daughter was born the day after the 14-month old's mother died. The couple cried during the wife's labor, the husband said.
The people involved in the cases are not being named, to protect the confidentiality of the child.
Last month, the godparents were granted permanent guardianship of the child and they have petitioned the Court to adopt her. It's what they believe is best for her and what they think her parents would have wanted.
"That was part of the reason we came to our decision to come forward, because of the many hopes and dreams we had discussed together... they knew what we could do that for them... and we would be letting them down if we didn't," the godmother said. "This isn't for us. This is strictly for her."
On their fireplace mantel is a large photograph of the godparents with their goddaughter and her parents, at the baby's christening. It was a gift from the baby's parents, who had the frame inscribed -"#1 Godparents."
Throughout an exclusive interview last week, the couple veered between tears over the memory of the child's parents, and joyful laughter as they watched the two babies.
The godmother smiled, tears welling in her eyes, and recalled how she and the girl's mother talked about buying a duplex so the families could live side by side, and their children would grow up together. The two men were cousins who were nearly inseparable as children. The godparents plan to share all of these memories with the girls they hope to adopt. And when she's old enough to understand, they will tell her she has two sets of parents-one in heaven and one on earth.
But adoption proceedings have been suspended pending an appeal of a ruling that has thrust this case into the national spotlight.
In a ruling last month that angered adoption advocates and prompted a proposed change in State adoption law, Children's Judge Daniel L. Konkol dismissed a petition by the late mother's brother to adopt his niece. Konkol ruled that because the uncle had been adopted as a child, he did not fit the statute's definition of blood relative.
The godparents said they believe an adopted child has all the rights of a birth child and agree the statute should be changed. "We don't feel there's any distinction at all," the godmother said.
But some of the publicity around the ruling "makes us look like we're the ones who believe that he's not part of the family, and that's not true," the godfather said.
"The issue should be the people petitioning for what's best for (the child)... We just want (her) to get on with her life."
According to Court testimony, the godparents were recommended by the psychologist and Court-appointed guardian as the best choice to rear the girl. The psychologist evaluated all parties and recommended the paternal grandparents as the second choice, the maternal grandparents, third and the uncle, who is single and has no immediate plans to marry, as a "fourth possibility."
Initially, the contested custody for the 14-month old was between the two sets of grandparents. But the paternal grandparents, who were temporary guardians, withdrew their petition in support of the godparents; and the maternal grandparents stepped aside in favor of their son.
The godparents still are smarting over some of the tactics used by the uncle in his efforts to adopt his niece. The uncle, whose adoption petition was filed about a week after the godparents asked for guardianship - hired a private investigator to question their neighbors and try to "dig up some bad things about us", the godfather said. When he confronted the uncle about this, the uncle replied it was all part of the game.
"This isn't a game. This is a child's life," the godmother said.
The couple waited nearly four months after the girl's father died before they petitioned for guardianship. It was their hope that both sets of grandparents would agree that the godparents were the best choice.
Although the paternal grandparents were hurt and defensive when they learned of the couple's intentions, the maternal grandparents were furious and swore at him, the godfather said. The couple said they could understand those feelings and hope in time everyone could be reconciled. They want to keep all families involved in the child's life, the godmother said.
"We don't look at the negative issues at all. All we do is look out for the (the girl)... She'll still have her grandparents, but she'll be able to have a mom and dad too", the godfather said. hide article
`Blood relative' adoption ruling is overturned
Sep 9, 1998
A controversial adoption ruling that gave preference to "blood relatives" over adopted relatives prompting outrage from adoption advocates and a change in state law was overturned Tuesday by the state appeals court. Last January, Milwaukee County Circuit Judge Daniel Konkol dismissed a petition by a Milwaukee-area man to adopt his orphaned niece, then 14 months old, under an expedited procedure reserved for relatives. Konkol, a Children's Court judge at that time, ruled that the man did not fit the state's definition of "blood relative" because he had been adopted by the late mother's parents.
Konkol then granted a petition from the girl's godparents for permanent guardianship, and the next day, they filed for adoption. All adoption proceedings were suspended pending the appellate ruling.
The appeals court ordered the trial court to reinstate the uncle's petition and conduct a hearing to consider his request to adopt his niece. The uncle said Tuesday that he hoped to be back in court this fall.
The child's parents died within weeks of each other in 1997. The mother died of cancer in May 1997; the father died in a car accident 11 weeks later.
Initially, the contested custody for the child was between the paternal and maternal grandparents. The paternal grandparents, who had temporary guardianship, withdrew their petition in support of the godparents; and the maternal grandparents stepped aside in favor of their son.
The family is not being named to protect the confidentiality of the child. Linda Ivanovic, attorney for the godparents, said: "I don't think this decision has a big impact on the case at all because the court still must determine who is the best person to adopt the child."
"The case boils down to best interests and the child, I believe, will continue to stay with my clients because it's in her best interests," Ivanovic said.
The uncle said Tuesday that he was relieved by the ruling.
"That day in January when I was told I was not my sister's brother, for all practical purposes, and I could not go ahead and raise the child she wanted me to, it was almost as if part of my family had been taken away from me," he said.
"Unfortunately, it took these lengths . . . to describe to the public what an adopted child is nothing less or more than a child." Case law and legislative statutes consistently and clearly have treated adopted children as equal "in every respect to natural-born children," the appellate court said in a 2-1 decision authored by Appeals Court Judge Ted Wedemeyer. The ruling was made by the court's 1st District panel, consisting of Wedemeyer, Charles Schudson and Ralph Adam Fine.
Fine dissented, saying judges exceed their authority when they ignore the "clear language of a statute." Rather than interpret the law as written, the majority transformed it to reflect a "more enlightened view of public policy," he said.
Konkol's ruling was based on his reading of a state statute that says an adoption petition may be filed at any time if one of the petitioners is a "relative of the child by blood," except for parents whose parental rights have been terminated, and their relatives. In an interview last February, Konkol said the statute clearly says that the uncle must be a "relative of the child by blood and he's a relative by law there's not a blood connection. That part seems real simple."
But the appeals court ruled that such a narrow reading of the statute lacked common sense, particularly in light of multiple statutes that give adopted children identical rights as biological children.
"A literal reading of the phrase (relative by blood) places it at odds with the overall purpose of its statutory section . . . with respect to public policy and common sense," the appellate court said. To prevent any further misunderstanding, the state Legislature in April passed an amendment to the statute, which now reads a "relative of the child by blood or by adoption." The appeals court ruling notes that the legislative action was an "expression of disagreement with the trial court's interpretation of the legislative intention."
Stephen Hayes, an attorney who specializes in adoption law, said the appellate decision "puts an exclamation point behind what I think was a clear trend in Wisconsin and that is adoptive children are given exactly the same consideration as birth children are given in all aspects of Wisconsin law."
Previous rulings regarding adoption have centered on property or inheritance issues, and this was the first time the appeals court had been asked to address the specific issue of whether an adopted child has the same rights as a blood child, including the right to compete as a relative for custody or adoption of a child, Hayes said. hide article
Uncle, godparents' adoption requests to be heard together
October 14, 1998
The uncle and godparents of an orphaned 22-month old girl will have their separate adoption petitions heard in a joint trial, Children's Court Judge Thomas P. Doherty ruled Tuesday.
The State Appeals Court last month reversed a Court decision barring the uncle from an expedited hearing to adopt his niece under a procedure reserved for relatives. Circuit Judge Daniel Konkol-a Children's Court Judge at the time, dismissed the uncle's petition in January, ruling he did not fit the State's definition of "blood relative" because the uncle had been adopted by the late mother's parents.
The appellate ruling stated that adopted children are equal in "every respect to natural born children." This case, which prompted a change in State law, gained national publicity.
While the uncle will get a hearing, his petition does not have priority over the godparents", Doherty ruled. Because of the time that has lapsed for the appeal, both parties have "caught up with each other," he said. He denied the uncle's request for a separate hearing, ruling that both petitions would be heard at the same trial.
The godparents filed a petition to adopt the girl the day after Konkol dismissed the uncle's petition. For the past nine months, the girl has been living with the godparents, who were named permanent guardians at that January hearing.
Doherty also rejected a request from the uncle's attorneys to adjust the girl's placement with the godparents to be weighted more toward the uncle at least until the trial date.
I'm not comfortable with that. I don't know where I'm going to end up in this case," Doherty said. He noted that the Court-appointed psychologist and the guardian ad litem have indicated placement shuld be with the godparents.
"I think it's best to leave things as they are at this time," Doherty said.
In addition to the godparents and uncle, also in the courtroom were the girl's paternal and maternal grandparents and the uncle's fiance.
The child has been at the center of a custody dispute since her father was killed in a car accident in July 1997. The mother died of cancer in May 1997. hide article
Adoption custody battle settled in secrecy
January 12, 1999
Judge approves resolution worked out between girl's uncle and godparents.
The much-publicized custody battle over a 2-year old orphaned girl was resolved Monday, eliminating the necessity of a contested adoption trial that would have pitted the child's uncle against her godparents.
But that resolution-whether the child will be adopted by her uncle or godparents-was sealed and all the parties involved were ordered by Children's Court Judge Thomas P. Doherty not to discuss the case or the agreement.
"I don't think that the publicity prior to the hearing was appropriate, and I don't think that any is appropriate now," Doherty said.
The case gained national attention because of a previous Judge's adoption ruling that was reversed by the State Court of Appeals and prompted a change in State law.
Last January, Milwaukee County Circuit Judge Daniel Konkol dismissed a petition by a man to adopt his orphaned niece, then 14 months old, under an expedited procedure reserved for relatives. Konkol, a Children's Court Judge at the time, ruled that the man did not fit the State's definition of "blood relative" because he had been adopted by the late mother's parents. That definition has since been clarified by the State Legislature to specifically include adopted relatives.
Konkol then granted a petition from the girl's godparents for permanent guardianship, and the next day they filed for adoption. The child has lived with her godparents, who have a daughter a few months younger than her, since that time and calls them "mommy and daddy."
The child's parents died within 11 weeks of each other in 1997
Prior to the hearing before Konkol last January, a court-appointed psychologist evaluated all parties in the case as possible adoptive resources. The psychologist concluded that the godparents would provide the "ideal home and family."
The trial was scheduled to begin Monday-with at least 32 witnessed expected to testify over a three-to-four day period.
But last week, the parties involved sat down and began to work toward a resolution that would be in the child's best interests. Doherty said he met with them Sunday afternoon to finalize the details.
"I think the beauty of it was it was substantially reached by the parties themselves," Doherty said.
Now, Doherty said, the hope is that this little girl can "go about her life in as normal, semiprivate fashion as she can." hide article