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Protective Placement – Sufficiency of Evidence

Outagamie County Department of Health and Human Services v. Gregory M., 2011AP1978, District 3, 1/31/12

court of appeals decision (1-judge, not for publication); for Gregory M.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Evidence held sufficient to support  a “primary need for residential care and custody,” § 55.08(1)(a), notwithstanding that ” Gregory is able to perform most daily living activities with little or no assistance,” ¶¶13-15.

¶15      While we agree the evidence shows Gregory is able to perform most daily living activities with little or no assistance, Susan H. does not stand for the proposition that an individual needs to be completely dependent on others for all aspects of daily living in order for the individual to be protectively placed.  See, e.g.Milwaukee Cnty. Prot. Servs. Mgmt. Team v. K.S., 137 Wis. 2d 570, 576, 405 N.W.2d 78 (1987) (“Protective placement may result from a mere inability to live independently in the community.”).

¶16      Here, Altepeter specifically opined that, in his expert opinion, Gregory has a primary need for residential care and custody. Altepeter explained that he was concerned with Gregory’s memory deficits and cognitive limitations.  To maintain Gregory’s safety, Altepeter opined Gregory needed twenty-four-hour supervision in a facility that provides him with food and care, and would monitor his substance abuse. Altepeter expressed concern that if Gregory lived independently, he would be unable to handle emergency situations and risked being exploited.  The evidence supports the court’s determination that Gregory has a primary need for residential care and custody.

Evidence also held sufficient to prove separate matter of whether Gregory “is so totally incapable of providing for his … own care or custody as to create a substantial risk of serious harm to himself,” § 55.08(1)(c). Walworth Cnty. v. Therese B., 2003 WI App 223, ¶13, 267 Wis. 2d 310, 671 N.W.2d 377 (medical or psychological opinion needed on each element), applied:

¶18      We conclude that, although Altepeter never explicitly opined Gregory “was so totally incapable of providing for his own care or custody as to create a substantial risk of serious harm to himself,” his testimony nevertheless supports that determination.  Specifically, Altepeter testified that to maintain Gregory’s safety he needed to be under twenty-four-hour supervision.  Altepeter explained Gregory was not capable of adequately providing for his own care and custody because of his substance abuse, cognitive limitations, memory deficits, and lack of problem-solving skills.  Gregory has suffered three significant head injuries in the past two to three years, and the resulting trauma, as well as substance abuse, caused his current dementia.  On appeal, Gregory concedes “there [is] no dispute … his accidents related to the use of alcohol.”  Altepeter expressed concern that because of Gregory’s “substantial history of alcohol and drug abuse and probably dependence,” there was a “risk [he] would … try to seek those substances.”  He warned that further substance abuse or head trauma would worsen Gregory’s dementia.

¶19      The record adequately supports the conclusion that Gregory is so totally incapable of providing for his own care or custody as to create a substantial risk of serious harm to himself.  Although Altepeter did not know whether Gregory was using alcohol or drugs at the time he was detained, “the [protective placement] statute does not require that dangerousness be proven by recent acts or omissions.”  See K.N.K. v. Buhler, 139 Wis. 2d 190, 203, 407 N.W.2d 281 (Ct. App. 1987).  We agree with the circuit court that “his history of drug and alcohol abuse and his injuries related to that abuse and the relative recent past [show] that he is at this time a danger to himself.”

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