State v. Ellis S.

• Decision Date: 09 August 2011
• Docket Number: Cir. Ct. No. 2008JG501A,Appeal No. 2010AP1138
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF CAMERON S.: STATE OFWISCONSIN, RESPONDENT-RESPONDENT, v. ELLIS S., PETITIONER-APPELLANT.
• Court: Wisconsin Court of Appeals

IN THE MATTER OF THE GUARDIANSHIP OF CAMERON S.: STATE OFWISCONSIN, RESPONDENT-RESPONDENT, v. ELLIS S., PETITIONER-APPELLANT.

Appeal No. 2010AP1138

Cir. Ct. No. 2008JG501A

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

August 9, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from an order of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY, Judge. Affirmed.

¶1 CURLEY, P.J.¹ Ellis S. appeals the trial court's order denying her petition for guardianship of her grandson, Cameron S. ² Ellis S. takes issue withmany of the trial court's findings, and argues that the trial court erroneously exercised its discretion in denying her petition. This court rejects Ellis S.'s numerous arguments regarding the trial court's findings and concludes the trial court did not erroneously exercise its discretion. This court affirms the trial court's order.

I. BACKGROUND.

¶2 Ellis S.'s grandson Cameron S. was born on May 5, 2003, to Ellis S.'s daughter Cherelle S. Cameron S.'s father remains unknown. For the first two years of his life, Cameron S. lived with Cherelle S. and his younger sister, Carmen S., who was born April 5, 2005. Both Cameron S. and Carmen S. were placed in different homes away from their mother in 2005 after it was determined that Carmen S. had suffered numerous limb fractures while in her mother's care. Carmen S. was placed with a non-relative foster parent while Cameron S. remained with Donetta S., his maternal aunt.

¶3 In an effort to keep the siblings together, Cameron S. and Carmen S. were placed with Ellis S. in early 2006. While the children were in Ellis S.'s care, Cherelle S. gained prohibited access to them, and Carmen S. suffered a skull fracture at the hands of her mother and uncle as a result of their fighting over her in a violent tug of war. Carmen S. was consequently moved to non-relative foster care, and, after a period of time, Cameron S. was again placed with Donetta S. ¶4 Although one of the terms of the subsequent placement with Donetta S. was that Cameron S. was not to have any contact with Ellis S., Ellis S. was in fact never out of contact with Cameron S. Cameron S. was therefore once again removed from Donetta S.'s care.

¶5 On August 29, 2008, during the pendency of the termination of parental rights case involving Cameron S. and Carmen S., Ellis S. filed a petition for permanent guardianship of Cameron S. In the portion of the petition where Ellis S. was instructed to indicate the reason that Cameron "needs a guardian," the answer given was "mother wrongly accused of abusing her daughter."

¶6 By letter decision filed October 19, 2009, the parental rights of Cherelle S. and all fathers were terminated regarding Cameron S. and Carmen S. In that same letter, the trial court indicated its intent to grant guardianship of Cameron S. to Ellis S. The trial court chose Ellis S. as a potential guardian because there was no other identified adoptive resource, because Cameron had a significant relationship with his maternal relatives, and because, being slightly older than his sister, Cameron S. was "perhaps[] capable of some nominally higher level of self protection" from the abuse his younger sister suffered. The court further explained, "[t]oo often, choices for this system's children involve 'the lesser of two evils.' This may be so for Cameron [S.]" The trial court noted that it had serious reservations about Ellis S. as a guardian, including Ellis S.'s financial ability to care for Cameron S., and—more importantly—that, "she has earned the significant distrust of this court regarding her ability and willingness to abide [by] court orders necessary for the protection of Cameron [S.]"

¶7 In light of these reservations, the trial court tolled the limits under WIS. STAT. § 48.427(1) as they related to the disposition of Cameron S. It wasdetermined that Ellis S. was willing to undergo a foster care licensing home study to allay the trial court's concerns, and that she would begin unsupervised visitation with Cameron S. The matter was then set for further review on January 6, 2010.

¶8 On January 4, 2010, the State filed a letter setting forth numerous concerns regarding Ellis S.'s ability to properly care for Cameron S. Those concerns included the following: (1) Ellis S. had allowed Cameron S. to have contact with a prohibited family member, namely, Chaunsey W., a teenage cousin who had a record of inappropriate sexual behavior in front of others; (2) Ellis S. allowed Cameron S. to have contact with at least two other unauthorized individuals, including a boyfriend who had unfettered access to her house and whose existence Ellis S. had actively tried to conceal from BMCW³ personnel; (3) Ellis S. repeatedly forgot to administer Cameron S.'s medications; (4) Cameron S.'s behavior at school had deteriorated since he began spending weekends with Ellis S.; and (5) Ellis S. had picked Cameron S. up from school on December 21, 2009 without permission and without notifying his foster parent, who was scheduled to pick him up that day and who was unable to determine Cameron S.'s whereabouts after school.

¶9 Consequently, the matter was set for a contested guardianship hearing on January 29, 2010.

¶10 At the hearing, family foster and adoption services specialist Jessica Partlow testified that regarding Cameron S.'s unauthorized contact with his cousin Chaunsey W., Ellis S. did not appear to have an understanding of the type ofdanger that someone with Chaunsey W.'s past could present to Cameron S. According to Partlow, Ellis S. told her that she planned on reuniting her family— i.e., keeping Cameron S. and Chaunsey W. together once she was awarded guardianship—because she knew "in her heart" that Chaunsey W. could never hurt Cameron S. Ellis S. also said that because Chaunsey W. had inappropriately exposed himself to a female, that Cameron S. was not in any danger because Cameron S. was male. Furthermore, Ellis S. testified that she knew "for a fact" that nothing inappropriate had occurred between Chaunsey W. and Cameron S. because the unauthorized contact was only for "[t]hree weeks, you don't think I know what's going on in my home, within a three-week time span?"

¶11 Also at the hearing, Jenell Loreck, a supervisor at the Children Service Society, testified that Ellis S. allowed her son, who was not an authorized caregiver, to watch Cameron S., and that Ellis S. provided inconsistent statements regarding who watched Cameron S. at the time in question. Additionally, Ellis S. initially refused to reveal the name of her boyfriend, who had unfettered access to her home—the home that she planned to have Cameron S. live in. Ellis S. indicated to specialist Partlow that she never planned to reveal her boyfriend's existence. Ellis S. also told Partlow that the only mistake that she and her boyfriend made was that he showed up when Partlow was there.

¶12 At the hearing, Ellis S. also admitted that she had forgotten to give Cameron S. his medication on occasion.

¶13 In addition, Steve Gardner, Cameron S.'s treatment foster care worker, testified that Cameron S.'s school behavior had diminished considerably since he began weekend visits with Ellis S. in November 2009. Cameron S.'s teacher advised Mr. Gardner that after the weekend visits began in November2009, he would be "pretty bad" in school on Monday and Tuesday, better on Wednesday, and then would "decrease again" on Thursday and Friday.

¶14 Gardner also testified that when Ellis S. picked up Cameron S. on December 21, 2009, she did not follow procedure for signing him out and his foster parent did not know that he would not be coming to her home as expected. Consequently, Cameron S.'s whereabouts immediately after school were unknown. Moreover, Ellis S. did not take Cameron S. to his scheduled therapy appointment on December 21, 2009, and Cameron S. was without his prescribed medication from December 21, 2009 to December 23, 2009, when a BMCW supervisor arranged for it to be delivered to her office for Ellis S. to pick up. Ellis S. had never asked about the medication.

¶15 Gardner and Loreck further testified that Ellis S. failed to timely enroll Cameron S. in the after-school program necessary to allow her to pick up Cameron S. late on Fridays.

¶16 The trial court ultimately denied Ellis S.'s petition for guardianship of Cameron S. Ellis S. filed a motion for reconsideration, which was denied, as well as a new petition for guardianship, which was also denied. Ellis S. now appeals.

II. ANALYSIS.

Standard of Review

¶17 The standard in deciding whether a petition for appointment of a guardian for a minor child should be granted is the best interests of the child. WIS. STAT. § 54.15(1); Winnebago Cnty. DSS v. Harold W., 215 Wis. 2d 523, 528, 573 N.W.2d 207 (Ct. App. 1997). Deciding whether a petition for guardianship is tobe granted is a discretionary decision of the trial court. Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d 411, 678 N.W.2d 285.

¶18 This court will not reverse a trial court's discretionary decision unless the trial court erroneously exercised its discretion. See Schultz v. Darlington Mut. Ins. Co., 181 Wis. 2d 646, 656, 511 N.W.2d 879 (1994). A trial court acts within its discretion when it examines the relevant facts, applies a proper standard of law, and, using a demonstrated rational process, reaches a conclusion that a reasonable judge could reach. Anna S., 270 Wis. 2d 411, ¶7. On the other hand, a court erroneously exercises its discretion if it misapplies or misinterprets the law, Midwest Developers v. Goma Corp., 121 Wis. 2d 632, 650, 360 N.W.2d 554 (Ct. App. 1984), or if it does not rely on facts in the record, Dowd v....