Matter of the Guardianship of C.R.R.

• Court: Wisconsin Court of Appeals
• Writing for the Court: LAZAR, J.
• Citation: 418 Wis.2d 155,2025 WI App 52,2025 N.W.3d 293
• Docket Number: 2024AP1450
• Decision Date: 02 July 2025
• Parties: In the Matter of the Guardianship of C.R.R.: Kelly R. Rose, Petitioner-Respondent, v. C.R.R., Respondent, Russell O. Rose, Interested Party-Appellant, Waukesha County, Interested Party.

418 Wis.2d 155

In the Matter of the Guardianship of C.R.R.: Kelly R. Rose, Petitioner-Respondent,

v. C.R.R., Respondent, Russell O. Rose, Interested Party-Appellant,^†Waukesha County, Interested Party.

Court of Appeals

No. 2024AP1450. Submitted on briefs February 28, 2025—Decided July 2, 2025.

2025 WI App 52

(Also reported in 25 N.W.3d 293.)

APPEAL from orders of the circuit court for Waukesha County: CODY J. HORLACHER, Judge. Affirmed.

On behalf fo the interested party-appellant, the cause was submitted on the briefs of Cindy L. Fryda, Pewaukee.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Molly J. Jasmer of Grady, Hayes & Neary LLC, Waukesha.

On behalf of the respondent, the cause was submitted on the brief of Victoria Davis Davila of Davis & Pledl, S.C., Milwaukee.

On behalf of the interested party, the cause was submitted on the brief of Zachary M. Bosch, assistant corporation counsel, and Erik G. Weidig, Waukesha County Corporation Counsel.

On behalf of the guardian ad litem, the cause was submitted on the brief of Breanne M. Bucher of Bucher, Wolff & Sonderhouse, Waukesha.

Before Neubauer, Grogan, and Lazar, JJ.

¶ 1. LAZAR, J. Russell O. Rose¹ appeals from orders denying one and dismissing another of two petitions for review of the conduct of his adult son’s guardian, Kelly R. Rose. He argues that these orders were legally erroneous because Kelly (his ex-wife) knowingly isolated their son (“Cory”) from him in violation of Wis. Stat. § 54.68(2)(cm). We conclude that the circuit court correctly denied or dismissed the petitions based on Russell’s failure to prove that Cory was being “isolated” from Russell within the meaning of the statute for several reasons, including because Kelly was acting in Cory’s best interest as § 54.68(2)(g) requires. Russell is wrong as a matter of law that § 54.68(2)(cm) provides grounds for access to his adult son regardless of Cory’s best interest. We therefore affirm and decline to address the constitutional question of whether Cory’s right to freedom of association renders Russell’s petitions moot.

BACKGROUND

¶ 2. Cory has Down’s Syndrome and Autism Spectrum Disorder. As a result, he has “significant delays in cognitive, language, and social functioning.” For his entire life, Cory has needed significant care and constant oversight to ensure his safety and well-being. After his parents’ divorce in 2009, Cory was continually subject to family court orders that determined which parent was to have primary placement as well as the terms of visitation. These orders would necessarily expire once Cory reached the age of 18. See Wis. Stat. § 767.41(2)(a).

¶ 3. On November 14, 2023, a few months before Cory’s 18th birthday, Kelly filed a petition pursuant to Wis. Stat. § 54.34 to be appointed Cory’s permanent guardian. Russell filed a cross-petition, seeking to be designated Cory’s permanent guardian himself.

¶ 4. The circuit court² heard testimony from multiple witnesses (including three of Cory’s healthcare providers) and reviewed extensive exhibits before appointing Kelly as Cory’s sole guardian of the person on February 9, 2024. The court stated that “the over-whelming evidence … is that [Kelly] is not only an acceptable, prudent person for this Court to appoint, but that she’s the only person that this Court can appoint into this role.” In explaining its decision, the court pointed to evidence that showed significant behavioral issues “coming from [Russell]” for which Cory was getting treatment and stated that Russell would “have to sit by and see how the medical professionals and the treatment bears out in terms of whether or not [Cory] can get back to a position where he can have meaningful contact with [his father] in a way that doesn’t set him back.”

¶ 5. Several weeks after the circuit court issued its guardianship decision, Cory turned 18. The family court order that had provided placement with Russell for 24 hours every other weekend (while granting primary physical placement to Kelly) expired. Notably, that June 30, 2023 order³ (which had substantially decreased Russell’s placement and which was submitted as evidence in the guardianship case) included multiple factual findings regarding Cory’s best interest, including:

• Cory has picked up Russell’s language, which is often “racist, obscene or offensive.”

• Russell has a history of providing insufficient oversight of Cory when Cory has been in his care, as evidenced by two incidents in particular: Cory discovering and taking car keys from Russell’s home in 2019 (where he was left with only Russell’s then 80-year-old mother) and getting seriously injured in an automobile accident and Cory wandering the neighborhood in 2022 after having been left alone at Russell’s house.

• Russell has “actively and passively opposed” Cory’s medical treatment and “has no plan” for Cory after the conclusion of his involvement with school, which Russell wanted to occur in the spring of 2024.

• Russell’s “obscene and confrontational behavior … stresses [Cory] incredibly” and “places him in a position of less stability and regulation in his daily life.”

¶ 6. Russell filed his first petition for review of conduct⁴ on February 29, 2024, stating that Kelly, as guardian, had advised him on the date of appointment (February 27) that she would “eliminate ANY contact, communication, visitation, [and] vacation” between Cory and Russell other than a monthly email, which he asserted was a violation of Wis. Stat. § 54.68(2)(cm). The circuit court⁵ appointed advocate counsel for Cory on March 8. Through advocate counsel, Cory filed a motion to dismiss Russell’s first petition based on res judicata (given that Russell’s petition was filed only 20 days after the court’s February 9, 2024 guardianship decision) and on his asserted right to freedom of association (due to his expressed wish not to see Russell). The court denied the motion to dismiss based on its need to “assess” Cory’s capability “to freely exercise his ability to associate or to not associate” and to determine whether “additional issues … occurred during that 20-day window” between the guardianship decision and Russell’s petition. Although both Cory’s advocate counsel and guardian ad litem requested that Cory’s appearance be waived, the court ordered Cory to appear by videoconference.

¶ 7. At the hearing on Russell’s petition, the circuit court conducted a colloquy with Cory to “ascertain [Cory’s] level of decision making.” Acting pro se, Russell then called several witnesses, including Kelly:

[Russell:] So you are withholding my son from me; correct?

[Kelly:] For very good reasons. Yes, I am.

[Russell:] Those reasons are supported by professional opinion or no?

[Kelly:] Some of them are, yes.

….

[Russell:] Do you have any professional opinions stating that he shouldn’t see me?

[Kelly:] Yes. Dr. Sengstock testified [at a previous hearing] that anybody who disregulates him, who can’t keep their emotions in check, who swears in front of him will cause him to do the same.

¶ 8. Testifying on her own behalf, Kelly stated that she intended to obtain behavior modification treatment for Cory (through a sought-after therapist by the name of Dr. Tiger) to address Cory’s “number one problem”—use of the racial slurs and inappropriate language learned from Russell that has prevented him from being allowed to participate in community programming. Her plan with respect to Russell’s future contact with Cory was to “rely on Dr. Tiger,” who had made it clear that Cory “cannot have outside influences” during the intensive period of treatment.

Kelly also called Ethan,⁶ Cory’s adult brother, who testified at length about the negative effects interactions with Russell had on Cory. Among these, Ethan stated that it would usually take about two days for Cory to “re-acclimate” after visits with Russell—to stop throwing things, hitting, and swearing and to “become happy again.”

¶ 9. The circuit court made its oral ruling denying Russell’s petition at the conclusion of testimony on May 24, 2024. It noted that, pursuant to Wis. Stat. §§ 54.68 and 50.085(2), “[t]he Court may not issue an order compelling visitation if the Court finds … [that Cory], while having the capacity to evaluate and communicate decisions regarding visitation, expressed a desire not to have visitation with [Russell]” or that “visitation between [Russell] and [Cory] is not in the best interest of [Cory].” The court then concluded that Kelly was, in fact, “acting in [Cory’s] best interest” and therefore not “isolating” Cory from his father. It specifically noted the “fact that [Cory] swears and says different things that are inappropriate in a general community setting [is] certainly something that needs to be dealt with in order to be able to have him actively engage and be a well-functioning member of society” and stated that, “from that standpoint, the work that [Kelly] is trying to do is in furtherance of that” as is her denial of Cory’s contact with Russell “based off the recommendation … by Dr. Tiger.” With respect to Cory’s argument that visitation with Russell violated his freedom of association, however, the court concluded that “in [Cory]’s current state,” he was not “able to freely exercise that First Amendment right.”

¶ 10. Accordingly, the circuit court entered its written order denying Russell’s first petition on June 10, 2024. Only two days later, on June 12, Russell filed another petition. He again asserted that Kelly was isolating Cory from him in violation of Wis. Stat. § 54.68(2)(cm) and alleged that there was new information showing that Kelly had “lied to the Court”: an email purportedly from Dr. Tiger stating that he “ha[d] not and [would] not make any recommendations until [he] ha[d] spent a good deal more time with [Cory].”

¶ 11. Kelly filed a motion to dismiss, which the circuit court granted on July 8 in an oral ruling after a hearing. The court stated that it “was not basing any of its findings ...