The circuit court erred in holding a due process hearing on Christopher’s protective placement without Christopher’s physical presence and without the guardian ad litem (GAL) waiving his attendance in writing prior to the hearing as required by § 55.10(2) and Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450.
¶8 …. The County was required by § 55.10(2) to ensure Christopher’s physical attendance at the hearing, and the GAL’s written waiver of Christopher’s attendance at the due process hearing is required by § 55.10(2) to be filed with the court prior to the hearing. The County’s failure to ensure Christopher’s attendance and the GAL’s failure to comply with the requirements of § 55.10(2) caused the circuit court to lose competency to proceed on the petition and enter a valid order. See Joseph S., 330 Wis. 2d 737, ¶14….
The court of appeals expresses some justifiable exasperation with what happened here. Before the hearing, Christopher’s lawyer wrote to the court, corporation counsel, and GAL raising concerns about previous review hearings at which Christopher wasn’t present and for which the GAL hadn’t waived his presence. (¶3). At the hearing his lawyer again raised the issue, objecting to the court’s competency to proceed because Christopher wasn’t present and the GAL hadn’t filed a waiver. (¶4). The court proceeded anyway after arranging for the GAL to file a waiver after the hearing and following the County’s suggestion that Christopher appear by telephone (which doesn’t satisfy § 55.10(2), as the County now concedes). (¶¶5, 8). Noting that “Joseph S. was either ignored or fell upon deaf ears” (¶7), the court says:
¶9 We cannot help but believe that this case reflects the unfortunate reality that easy cases result in sloppy actions. No one questions and all agree that Christopher is in continued need of protective placement. Christopher’s trial counsel attempted to make all aware of the statutory requirements and applicable case law so as to ensure that Christopher remained in a facility that he enjoys. Despite these diligent efforts,… we feel the need to remind the other parties that statutes need to be complied with. It was the County’s responsibility to ensure Christopher’s physical attendance at the due process hearing, and it was the GAL’s responsibility to submit a written waiver to the court in advance of the hearing if he found Christopher was unable to attend…. Both the County and the GAL failed in their responsibilities to Christopher.