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Defense win! County’s effort to convert Chapter 55 protective services order to protective placement order violated due process

Waushara County v. B.G., 2017AP956, 10/26/17, District 4 (1-judge opinion, ineligible for publication); case activity

When the circuit court entered a protective services order for B.G., it did not include any conditions or labels such as “temporary” or “conditional.” It did, however, state that B.G. “does not meet the standards for protective placement.” When B.G. tried to resist services,  the County filed a “Notice of Transfer of Protective Placement” asking the circuit court to remove him from his home and place him in a facility. The court did as asked. The court of appeals now reverses.

A “huge liberty interest” is at stake in these cases because a protective placement is tantamount to a life sentence in a nursing home or custodial setting. Op. ¶17 (citing Jefferson City v. Joseph S., 2010 WI App 160, ¶13, 330 Wis. 2d 737, 795 N.W.2d 450). Those liberty interests require due process protections: the filing of a petition, 10 days notice before the hearing, and hearing within 60 days of filing the petition, a comprehensive evaluation of the person. See e.g. §§55.075. 55.09(1), 55.10(1), 55.11(1)-(2). The County did not follow these or other steps. It claimed that the original order for protective services was either “temporary” or “conditional” or it was “converted” to a protective placement.

The court of appeals rejected these arguments. The protective services order did not say or imply that it was “temporary” or “conditional.” Op.¶20. Neither the record nor the circuit court suggested this to be the case. Op. ¶¶21-23. And Chapter 55 does not offer the options. Op.¶¶25-29. Likewise, Chapter 55 does not authorize a protective services order to be converted into a protective placement:

¶34 Wis. Stat. § 55.16(5) requires that the circuit court, when considering a petition to modify a protective services order, may only leave the order unchanged, alter the order, or terminate the order. Nowhere does that section allow an amendment of a protective services order into a protective placement order. A circuit court is similarly limited when considering a petition to terminate a protective services order. Wis. Stat. § 55.17(4) states that, when a circuit court considers a petition to terminate a protective services order, the court may only leave the order unchanged, alter the order, or terminate the order. ¶

¶36 Had the legislature intended to allow the amendment of a protective services order to a protective placement order, it would have explicitly outlined that process in WIS. STAT. ch. 55. Because it did not do so, and since B.G. was subject to a protective services order and not in protective placement, the circuit court did not have the authority to amend its protective services order of June 2016 to the July 2016 protective placement order.

 

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