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Aaron B. v. County of Milwaukee, 2011AP2287-FT, District 1/2, 5/16/12

court of appeals decision (1-judge, not for publication); for Aaron B.: Jeremy C. Perri, Hannah Blair Schieber, SPD, Milwaukee Appellate; case activity

Guardianship – Placement Hearing – Personal Appearance 

Failure to object to ward’s inability to appear at guardianship placement hearing waived argument that court should not have held hearing in ward’s absence.

¶7        Wisconsin Stat. § 55.10(2) provides that a ward must attend a protective placement hearing unless “after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend.” The GAL “shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual’s attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual’s expressed desires.”  Id.  Aaron argues that this statute was violated because the circuit court conducted the hearing without a written waiver from his GAL.

¶8        Aaron’s adversary counsel did not object to the GAL’s waiver at the hearing.  Aaron admits that any objection to proceeding without his presence was waived, but still asks that we consider the issue because of its importance.  Although we have discretion to consider issues that were not raised at the circuit court, we generally do not do so, and given the facts presented, we decline to do so in this case.  See Brown v. State, 230 Wis. 2d 355, 370, 602 N.W.2d 79 (Ct. App. 1999).

¶9        We note that the GAL verbally waived Aaron’s appearance after Aaron’s attorney said Aaron could not appear.  Aaron’s health problems were well known to the parties and the circuit court.  As an officer of the court, the GAL’s statements amounted to her certification that waiver was in the best interests of Aaron given his health issues.  The GAL subsequently provided a written waiver to the court, writing that Aaron would have been unable to meaningfully participate in the hearing after his seizure and that his appearance would have been dangerous to his health.  Aaron’s attorney, having just spoken with Aaron’s mother, did not object to either the GAL’s waiver of Aaron’s appearance nor the circuit court holding the hearing without Aaron.

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