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COURT OF APPEALS
DECISION
DATED AND FILED
April 26, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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In the matter of the guardianship of Emily B.:
Albert B.,
Appellant,
v.
Door County
and Mary Berne,
Respondents.
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APPEAL
from an order of the circuit court for Door County: James
T. Bayorgeon, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Albert B., pro se, appeals an
order denying his petition to remove Mary Berne as guardian for Emily B. Because the circuit court’s factual findings
are not clearly erroneous and support the discretionary decision to deny the
petition, we affirm.
BACKGROUND
¶2 Emily B. is the adult daughter of Albert B. She is developmentally disabled, and has been
under a guardianship and protective placement for many years. Albert B. was the guardian for several
years. Mary B. was appointed standby
guardian in 2003. In 2004, at Albert
B.’s request, Emily B. moved from Albert B.’s home to Berne’s
home. On the evening of February 14,
2006, Emily fell and broke her hip. Emergency
surgery was required, and Albert B. did not learn of the fall and surgery until
the next morning. In April, 2006, Albert
B. stipulated that Berne should be appointed
guardian, and the circuit court found the change in guardian to be in Emily B.’s
best interests.
¶3 After Emily B. spent some time in a sub-acute facility for
rehabilitation, she returned to live with Berne. In August 2006, police were called after
Emily B.’s behavior got “out of control.” After some short-term placements to stabilize
her emotionally, Emily B. moved to Empowerment Options Adult Family Home, an
adult group home operated by Michael Melotte.
Emily B. continues to live at the Melotte home. Although the protective placement documents
are not part of this guardianship file, it is undisputed that annual reviews
under Wis. Stat. § 55.18
(2009-10)
have occurred, and that all of Emily B.’s placements have been approved by the
circuit court, including at a May 2009 review.
¶4 In April 2009, Albert B. filed a petition to discharge Berne as guardian and to re-appoint him. The petition itself did not identify any
grounds for removal. Albert B. filed a
trial brief, however, identifying two grounds:
(1) Berne’s “fail[ure] to account
for the real estate … owned by [B.] Management Corporation;” and (2) Berne’s conduct “on or about February 14, 2006 when she
caused [Emily B.] to be pushed down the front stairs of her home fracturing her
right hip and [Berne]’s actions thereafter in
covering up the incident by denying [Albert B.] access to [Emily B.] …
including placement at the Melotte Adult Family Home.” After an evidentiary hearing at which Albert
B.; Berne; Jodi Alsteen, Emily B.’s case manager; Dr. Ashraf Amed, Albert B.’s
psychiatrist; and a City of Green Bay police officer testified, the circuit
court denied Albert B.’s petition. The
circuit court found “no basis” for Albert B.’s assertion that Berne had a duty
to account for the real estate and “no evidence … that [Berne]
has in any way … mismanaged any of [Emily B.’s] assets or income.”
¶5 As to the February 2006 incident, the circuit court stated
Emily B.’s fall was an “accident” and it “cannot find, quite frankly, by any
stretch of the imagination, that [Berne]
deliberately pushed [Emily B.] down the steps.”
The circuit court also found Berne
“acted appropriately” after the fall.
The circuit court stated the delay in notifying Albert B. was
“unfortunate,” but “no harm” was caused by the delay.
¶6 The circuit court also considered whether Emily B.’s current
placement in the Melotte home warranted Berne’s
discharge as guardian. The circuit court
acknowledged that “two violations … involving the electrical code” at the home
had been found by Albert B., but both had been corrected. Rejecting Albert B.’s testimony, the circuit
court found “no evidence” that Emily B. or other residents had been mistreated
by staff. The circuit court also noted
that Albert B.’s complaints “were addressed” in the annual protective placement
review and that “[Emily B.’s] present placement was [found to be] appropriate
and the least restrictive.” The circuit
court held that it had “no authority to review” Emily B.’s placement in the
context of Albert B.’s petition to discharge Berne
as guardian. The circuit court concluded
there was no evidence “to justify or make a finding that [Berne]
in any way [has] failed to act in the best interests” of Emily B., and denied
the petition.
DISCUSSION
A. Standard of
Review
¶7 Albert B. asserts that our review is de novo. We disagree.
Pursuant to Wis. Stat. § 54.68(4),
the circuit court may remove a guardian if it finds that the guardian has
committed any of the acts set forth in § 54.68(2). We construe the use of “may” in the statute
“as allowing for the exercise of discretion.”
Linda L. v. Collis, 2006 WI App 105, ¶72, 294 Wis. 2d 637, 718 N.W.2d 205 (construing Wis. Stat. § 880.16, a predecessor
statute to § 54.68). “A circuit
court’s discretionary determination will be affirmed if the court makes a
rational, reasoned decision and applies the correct legal standard to the facts
of record. We accept all findings of
fact made by the circuit court unless they are clearly erroneous.” Id.
(citations omitted). Applying those
standards to this case, we affirm the denial of Albert B.’s petition.
B. The Real Estate
¶8 In his testimony, Albert B. acknowledged the real estate was
titled to [B.] Management Corporation. Berne testified she did not believe that Emily B. had any
ownership interest in the real estate. Berne further testified that she had no relation to or
control over [B.] Management Corporation.
The circuit court’s finding that Berne
had no duty to account for the real estate is not clearly erroneous.
¶9 On appeal, Albert B. relies on a 1997 agreement between [B.]
Management Corporation and the Door County Department of Community Programs
addressing Emily B.’s care, and he argues that the county’s “failure to act”
under that agreement “constitutes cause for removal” of Berne
as guardian. Grounds for removal of a
guardian are enumerated in Wis. Stat.
§ 54.68(2)(a) through (j). None of
those statutory grounds are implicated by the county’s alleged “failure to act”
under a 1997 agreement. We further note
that the agreement contemplates Emily B. residing in Albert B.’s home, a
scenario that last occurred in 2004, and that was ended at Albert B.’s
request. Emily B.’s placements outside
of Albert B.’s home have been approved by the protective placement court. The 1997 agreement is no longer material to
Emily B.’s care.
C. The February
2006 incident
¶10 Albert B. spends many pages of his appellate brief detailing
his view of events, both before and after Emily B.’s fall. The circuit court, however, rejected Albert
B.’s view, and expressly found Emily B.’s fall to be an accident and that Berne “acted appropriately.” The circuit court’s findings are supported by
testimony of Alsteen and Berne. Therefore, they are not clearly erroneous,
and they are binding on this court. See Linda
L., 294 Wis. 2d
637, ¶72.
D. Other Arguments
¶11 Albert B. argues that Emily B.’s current placement violates the
Americans with Disabilities Act, 42 U.S.C. § 12101 through 42 U.S.C.
§ 12213 (1994). He also argues that
Emily B.’s inappropriate placement at the Melotte home is cause to remove Berne as guardian.
¶12 We agree with the circuit court that the propriety of Emily
B.’s current placement was not before the court. Approximately four months before the hearing
on Albert B.’s petition, Emily B.’s placement at the Melotte home was approved
as the least restrictive and most appropriate placement for Emily B. in the
annual Watts
review. The incidents that Albert B.
relied on as evidence of the poor quality of the Melotte home occurred in
February 2008. Emily B.’s placement has
since been approved by the protective placement court. Therefore, Albert B.’s reliance on the
placement as cause for removal under Wis.
Stat. § 54.68(2) necessarily fails.
¶13 Albert B. argues that Dr. Amed’s testimony was “unchallenged”
and compels the conclusion that Albert B. should be Emily B.’s guardian. Dr. Amed was Albert B.’s personal
psychiatrist. At Albert B.’s request, he
had reviewed many documents, but the most recent document dated from
mid-2007. Dr. Amed questioned the
propriety of Berne’s guardianship and Emily
B.’s placement outside of Albert B.’s home.
However, he admitted he never met or examined Emily B. He also conceded that he could not render an
opinion regarding whether Emily B.’s current placement was the least
restrictive.
¶14 Albert B.’s petition sought the removal of Berne
as guardian. Whether Albert B. was
qualified to serve as guardian was not the threshold issue before the
court. The issue before the court was
whether there was cause, under Wis.
Stat. § 54.68(2), to remove Berne. Dr. Amed’s testimony was of little, if any,
relevance to that question. The circuit
court was the sole judge of the weight to be given the testimony, and we defer
to its implicit decision to give no weight to Dr. Amed’s testimony.[5]
¶15 Albert B. also argues that the circuit court’s finding that he
should be allowed to visit Emily B. is cause to remove Berne. We disagree.
The circuit court chose to not remove Berne
as guardian, even though it disagreed with the limitation on visitation that
had been in place since February 2008.
The circuit court’s belief that, going forward, Albert B. should be
afforded visitation does not transform its decision to not remove Berne as guardian into an erroneous exercise of
discretion.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.