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Protective placement – sufficiency of evidence

Wood County v. Zebulon K., 2011AP2387, and Wood County v. Forest K., 2011AP2394, District 4, 2/7/13; court of appeals decision (1-judge, ineligible for publication); case activity: Zebulon K.; Forest K.

The evidence was not sufficient to prove that Zebulon and Forest need to be protectively placed. Though Zebulon and Forest are developmentally disabled, the evidence does not establish they are “so totally incapable of providing for [their] own care and custody as to create a substantial risk of serious harm to [themselves] or others” under Wis. Stat. § 55.08(1)(c). While the examining psychologist and social worker’s evaluation noted Zebulon’s and Forest’s limited abilities to care for themselves:

¶16      Nothing in the record establishes that their incapacity creates a “substantial risk of serious harm” to others or themselves within the meaning of Wis. Stat. § 55.08(1)(c). The record establishes that neither Zebulon nor Forest has a full appreciation of the extent of their disability and it raises concerns regarding their ability to provide for their care and custody. However, nothing in the record establishes that they are incapable of providing for their own care or custody and nothing in the record establishes that their incapacities create a “substantial risk of serious harm” to themselves or others.

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