Stephen R. v. Ilana C.

2011 WI App 13, 794 N.W.2d 533, 331 Wis. 2d 108, 2010 Wisc. App. LEXIS 1001
CourtCourt of Appeals of Wisconsin
DecidedDecember 8, 2010
DocketNo. 2010AP363
StatusPublished
Cited by2 cases

This text of 2011 WI App 13 (Stephen R. v. Ilana C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephen R. v. Ilana C., 2011 WI App 13, 794 N.W.2d 533, 331 Wis. 2d 108, 2010 Wisc. App. LEXIS 1001 (Wis. Ct. App. 2010).

Opinion

NEUBAUER, PJ.

¶ 1. llana C. appeals from a circuit court order granting her mother and stepfather, Ilya R. and Stephen R., full guardianship of liana's daughter Alexis. liana challenges the order on three grounds. First, liana contends that Wisconsin lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see Wis. Stat. ch. 822 (2007-08),1 because Indiana was Alexis's "home state." liana next contends that the circuit court failed [112]*112to apply the correct legal standard for guardianship as set forth in Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984), and that Ilya and Stephen failed to meet their burden of proving that compelling reasons existed to grant a permanent guardianship. Finally, liana contends that the circuit court erred in denying her request to order visitation, instead deferring her request to Alexis's guardians, Ilya and Stephen. We uphold the circuit court's determination that Wisconsin has jurisdiction under the UCCJEA. We further conclude that the circuit court properly exercised its discretion in granting guardianship to Ilya and Stephen and deferring to them on the issue of visitation. We affirm the order.

BACKGROUND

¶ 2. Stephen and Ilya filed for permanent guardianship of Alexis on May 27, 2009. The petition alleges both that a guardianship is in Alexis's best interests and that she is in need of a guardian because she resides with Stephen and Ilya, who support her. The circuit court scheduled a hearing and appointed a guardian ad litem. The notes from the July 14, 2009 hearing reflect that the circuit court granted Stephen and Ilya temporary guardianship of Alexis pending a contested guardianship hearing on August 20, 2009. On August 5, 2009, liana filed a motion to dismiss the guardianship petition on grounds that: (1) Alexis was placed with Ilya on May 27, 2009, and liana had never relinquished custody and care of her daughter and (2) Wisconsin is not Alexis's home state under the UCCJEA, and the court does not have any other grounds for jurisdiction. After briefing and argument by the parties, the circuit court determined that Wisconsin had jurisdiction and extended the temporary guardianship order. The matter proceeded to a contested guardianship hearing on October 29, 2009.

[113]*113¶ 3. At the hearing, liana testified that prior to Alexis's birth she resided in Elkhart, Indiana, with her grandmother, Jessie Ellis. After Alexis was born on October 25, 2006, in Mishiwauka, Indiana, llana and Alexis moved in with liana's mother Ilya in Barrington, Illinois. In February 2007, llana and Alexis moved to Rockford, Illinois, to reside with a friend of liana's. liana testified that she had a job waitressing at the Big Foot Lounge and received some financial assistance from her roommate and the state.2 In October 2007, liana took Alexis to Indiana to live with Ellis. liana testified that Ellis "was able to provide constant child care for [Alexis]" and that the move was Ilya's idea. Prior to the move, liana's roommate had been providing child care. Her roommate had two children of her own so liana believed Alexis would receive "more one-on-one time with [her] grandmother."

¶ 4. liana testified that after Alexis moved to Indiana, she saw Alexis "within the first couple of months. As soon as [she] could." liana testified that she visited Alexis "at least five" times during the eighteen-month period that Alexis resided with Ellis and called "every day or every couple days." liana testified that Alexis's daycare expenses in Indiana were shared by Ilya, Stephen and Ellis, with the exception of approximately $500 that liana gave to Ellis.3 Alexis resided in Indiana with Ellis until March 2009 when Ellis suffered a heart ailment and was no longer able to care for her.

[114]*114¶ 5. liana testified that Alexis then went to Ilya and Stephen's house in Trevor, Wisconsin. liana acknowledged that she had been offered the opportunity to care for Alexis at that time. liana visited Alexis within the first two weeks that she lived with Ilya and Stephen, staying a couple of hours. She visited again in that first month, staying for a night or two, and assisting with Alexis's care. liana testified that during her visit there was a discussion regarding Alexis's long-term placement. liana testified that Ilya and Stephen had approached her about signing guardianship papers for medical and insurance purposes. When liana refused to sign them, Ilya threw a wine glass, liana recalled that the result of these discussions was that her family would help until she obtained her certified nursing assistant certificate and could work normal hours and care for Alexis. She understood that Alexis would come back to live with her at that time and she had asked for "some support with the situation." liana testified that in June and July 2009 Alexis had three overnight visits with her in Rockford.

¶ 6. At the time of the October 2009 hearing, liana testified that she had "achieved stability." She was living by herself in a three-bedroom apartment in Rockford, had obtained her certified nursing assistant (CNA) certificate, and was employed as a CNA.4 liana acknowledged having been diagnosed as bipolar; however, she offered contradictory testimony as to whether [115]*115she had been diagnosed two months prior to the hearing or a year prior. liana also acknowledged that she was prescribed medication but did not continue to take it and did not return to the doctor for further treatment. She testified that she discontinued the medication because her insurance ran out and she did not feel she needed it. When questioned further, she clarified that she was not saying she "won't take it."

¶ 7. Ellis also testified at the hearing. According to Ellis, liana brought Alexis to Indiana two times for doctor visits in the first few months after Alexis was born. She testified that during the time that Alexis lived in Rockford with liana from February 2007 to October 2007, "[w]e were very concerned about whether [Alexis] was all right or not." When liana called Ellis about Alexis coming to stay with her, liana asked if Alexis could stay for "about a week and a half' because her roommate's children had the flu. Alexis stayed with Ellis for a year and a half. liana visited Alexis at Ellis's house on three occasions for four or five days during this period and called sporadically. Ellis testified that "sometimes [liana would] call twice a month. One time she didn't call for about four or five months." Ellis contacted liana to let her know things about Alexis, but found that liana's cell phone "was always full." She was unable to reach liana for three or four days when Alexis had an ear infection and Ellis did not have written permission to obtain medical care. It was evident from Ellis's testimony that Alexis would attend daycare even when liana was visiting.

¶ 8. With respect to liana's interaction with Alexis during her visits, Ellis testified: "I always cared for the baby ... I mean, the baby came to me for whatever she needed." She further testified:

[116]*116In the hospital I witnessed the fact that liana would not even hold the baby. Her mother and I fed the baby .... We cuddled that sweet, little kid. We played with her. We nurtured her. I have seen the nurse hand the baby to llana and liana just- — I mean, it's just right there.

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Bluebook (online)
2011 WI App 13, 794 N.W.2d 533, 331 Wis. 2d 108, 2010 Wisc. App. LEXIS 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephen-r-v-ilana-c-wisctapp-2010.