Guardianship of Tina Marie W., 96-2733

Decision Date03 December 1997
Docket NumberNo. 96-2733,96-2733
Citation215 Wis.2d 523,573 N.W.2d 207
PartiesIn the Matter of the GUARDIANSHIP OF TINA MARIE W., Incompetent. WINNEBAGO COUNTY, DEPARTMENT OF SOCIAL SERVICES, Petitioner-Respondent, v. HAROLD W., Respondent-Appellant.
CourtWisconsin Court of Appeals

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

NETTESHEIM, Judge.

Harold W. appeals from a trial court order removing him as coguardian of his daughter, Tina Marie W. Harold raises challenges to three evidentiary rulings made by the trial court. First, Harold contends that the trial court erroneously refused him access to the medical records of a nonparty witness. Second, Harold argues that the trial court erred by admitting evidence of prior inconsistent statements made by his coguardian and wife, Marie W. Third, Harold contends that the trial court erred by admitting evidence of his prior bad acts. As an additional issue, Harold challenges the sufficiency of the evidence. We reject each of Harold's arguments. We affirm the trial court's removal order.

FACTS

Tina is a twenty-one-year-old woman who suffers from severe disabilities including cerebral palsy, mental retardation and a seizure disorder. Tina cannot speak, walk or feed herself. It is undisputed that Tina is incompetent and unable to care for herself. Since December 1993, Tina's parents, Harold and Marie, have been coguardians of both Tina and her estate.

On January 5, 1996, an agency representative of the Winnebago County Department of Social Services filed an affidavit for emergency protective placement of Tina pursuant to ch. 55, STATS. The affidavit was based upon allegations of prior inappropriate sexual conduct by Harold toward Tina and a current allegation of similar behavior witnessed by a friend of Marie, Diane F., in Marie's presence. That same day, Tina was taken into the custody of the department pursuant to § 55.06(11)(a), STATS.

On January 9, 1996, the department filed a petition for the appointment of a successor guardian and for protective placement. The petition alleged that "Tina is unable to defend herself against any assault from her guardians. Due to the allegations of sexual improprieties, and Tina's inability to report such events; Tina needs to be protected from the possibility of such events." The department requested that Tina be placed outside of the home. A probable cause hearing was conducted before a court commissioner pursuant to § 55.06, STATS. After determining that there was probable cause to believe that Tina would be at substantial risk of serious harm if removed from her temporary placement, the court commissioner appointed Oshkosh Family, Inc., a corporate guardian, as Tina's temporary guardian. Oshkosh Family, Inc., remained as Tina's temporary guardian throughout the proceedings.

On March 1, 1996, the department's petition for protective placement was converted to a petition for the removal of both Harold and Marie as coguardians and for the appointment of a successor guardian under The trial court held a hearing on the petition over a six-day period. At the conclusion of the hearing, the trial court determined that the department had failed to meet its burden of proof with respect to its allegations against Marie. The court additionally determined that it was in Tina's best interests that Marie continue as guardian of her person. However, the court found that the department had met its burden as to the allegations against Harold. The court concluded that Harold's removal as coguardian was necessary to serve Tina's best interests. Harold appeals. We will recite additional facts as they relate to the appellate issues.

                §   880.251, STATS.  The supplemental allegations supporting the department's petition were as follows:  (1) Harold engaged in sexual improprieties against Tina;  (2) Marie had knowledge of such events and she failed to take steps to protect Tina;  (3) Harold and Marie had authorized Tina to receive a hysterectomy without obtaining court approval;  (4) Harold and Marie had misappropriated funds belonging to Tina;  and (5) Harold and Marie had failed to provide a suitable and safe environment for Tina
                
DISCUSSION
1. Introduction

Before we address the specific appellate issues we make some important threshold observations. First, a guardian owes the ward absolute fidelity. See Yamat v. Verma L.B., 214 Wis.2d 207, 216 & n.3, 571 N.W.2d 860, 864 & n.3 (Ct.App. 1997). As such, a guardian owes a fiduciary duty to the ward. See Production Credit Ass'n v. Croft, 143 Wis.2d 746, 752, 423 N.W.2d 544, 546 (Ct.App.1988). Manifest in the existence of a fiduciary relationship is an inequality, dependence, weakness of age, or mental strength, business intelligence, knowledge of facts involved, or other conditions giving to one an advantage over the other. See id. at 755-56, 423 N.W.2d at 547. A guardian of an incompetent ward clearly stands in a position of advantage over the ward as to all of these considerations.

Second, the overriding concern in a guardianship proceeding is the best interests of the ward. See § 880.33, STATS. See also Brezinski v. Barkholtz, 71 Wis.2d 317, 328, 237 N.W.2d 919, 924 (1976). As such, the trial court must be vigilant in assuring that a guardian properly protects the ward's interests. See Grayson v. Linton et al., 63 Idaho 695, 125 P.2d 318, 320 (Idaho 1942).

Third, no person has a legal right to serve as a guardian. 1 Rather, guardianship status is a privilege, with a concomitant duty, conferred upon the guardian by the trial court in the exercise of its discretion. See Brezinski, 71 Wis.2d at 327, 237 N.W.2d at 924 (the appointment of a guardian is within the trial court's discretion).

2. The Statutes

Section 880.33, STATS., governs the appointment of a guardian for an incompetent. That statute provides in relevant part:

(5) In appointing a guardian, the court shall take into consideration the opinions of the alleged incompetent and of the members of the family as to what is in the best interests of the proposed incompetent. However, the best interests of the proposed incompetent shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest....

It is undisputed in this case that Tina is incompetent to care for herself and has been adjudicated as such. In making its initial guardianship determination, the trial court appointed Harold and Marie as Tina's coguardians. Under § 880.34, STATS., which governs the duration and review of a guardianship appointment, "[a]ny guardianship of an individual found to be incompetent under this chapter shall continue during the life of the incompetent, or until terminated by the

court." Section 880.34(1). Pursuant to § 880.34(3), "[a] ward of the age of 18 or over, any interested person on the ward's behalf or the ward's guardian may petition the court which made [215 Wis.2d 530] such appointment to have the guardian discharged and a new guardian appointed ...." Section 880.16(2), STATS., provides, "When any guardian fails or neglects to discharge the guardian's trust the court may remove the guardian after such notice as the court shall direct to such guardian and all others interested."

3. The Appellate Issues
A. Access to Diane F.'s Medical Records

In support of its petition to terminate Harold's guardianship of Tina, the department presented testimony from Marie's friend, Diane F., that Harold engaged in inappropriate sexual contact with Tina. Diane testified that on December 22, 1995, Marie asked her to baby-sit for Tina. Diane testified that "[w]hen Harold was saying good-bye to Tina, he rubbed his right hand over her chest [o]ver the breast part of her body and right on top of the nipples." Diane was also permitted to testify that Marie told her that Harold was "starting to run around in his shorts again and in front of Tina and coming into Tina's bedroom." Diane additionally testified as to her conversations with Marie regarding the marital problems Marie and Harold had experienced and Marie's concern about Harold's relationship with Tina. Finally, Diane testified that Marie "always had to beg for money from Harold" and that Marie did not want Harold to know when she purchased a new chair for Tina.

Harold argues that Diane's testimony was the "crucial, almost exclusive evidence" in support of the department's allegations of sexual abuse. Harold contends that because Diane had a lengthy psychiatric history, including a diagnosis of schizophrenia, the trial court erroneously denied his requests to access her psychiatric records. As a result, Harold maintains that he was denied crucial information which may have been used to demonstrate that Diane's "perception, memory, judgment and concentration were all adversely affected by such conditions" on December 22, 1995, the date on which Diane claimed to have witnessed Harold's inappropriate behavior.

"A trial court's rulings on discovery are discretionary and will be upheld if they are 'consistent with the facts of record and established legal principles.' " Ranft v. Lyons, 163 Wis.2d 282, 290, 471 N.W.2d 254, 257 (Ct.App.1991) (quoted source omitted).

Harold concedes on appeal that there is no case law which supports his request that the trial court order discovery of a nonparty witness's medical records in a civil action. Instead, Harold requests this court to extend our holdings in the criminal cases of State v. Shiffra, 175 Wis.2d 600...

To continue reading

Request your trial
7 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT