Washburn County v. D.C.R., 2024AP2443-FT, 7/8/25, District III (ineligible for publication); case activity
While D.C.R. wins some minor victories in this appeal, ultimately COA rejects his sufficiency challenges and affirms.
In this appeal from an order continuing a protective placement after an annual review, COA addresses two sufficiency challenges:
Primary Need for Residential Care and Custody
Under the statute, the County needed to prove that “Dwight” had “a primary need for residential care and custody.” § 55.08(1)(a). “Dwight concedes that he needs services for setting up appointments, assisting with meals, and monitoring medications, but he argues that these services are not ‘daily needs.'” (¶22). He also argues these needs can be met short of protective placement. (Id.). Here, however, COA is satisfied that the testimony of the court-ordered evaluator is sufficient to prove this element as that expert testified that Dwight’s needs can’t be met via less-restrictive means and that Dwight will not accept services outside of a protective placement setting. (¶24). Additional evidence in the record buttressed those conclusions. (¶¶25-27).
Substantial Risk of Serious Harm
To protectively place Dwight, the County also needed to prove he was “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). On this point, COA agrees that much of the evidence of dangerousness cited by the County does not meet the statutory standard. First, as to a finding made by the circuit court regarding Dwight’s amenability to medication, COA finds the record does not support that conclusion. (¶32). And, even if Dwight was not taking his medications for cholesterol and depression, the record does not show that his failure to take those medications would create the statutorily-recognized level of risk. (¶33). Mere allegations of hoarding are also insufficient under these facts. (¶33). Vague allegations of financial mismanagement, coupled with the losing of two debit cards, also do not meet the standard. (¶34).
Ultimately, however, COA affirms for different reasons. Dwight has a traumatic brain injury stemming from a motorcycle accident. (¶2). Dwight not only continues to want to ride a motorcycle, he very nearly purchased one while under this protective placement. (¶35). Evidence in the record, however, shows that he does not have the cognitive abilities to operate a motorcycle safely and that Dwight does not recognize his limitations in this respect. (¶36). “Given Dwight’s noted failure to comprehend his deficiencies, it is foreseeable that he could successfully purchase a motorcycle, ride it, and crash it as a result of his TBI.” (Id.). In addition to this evidence, the County also showed that Dwight has gotten lost twice while riding a bike and that “he was unable to demonstrate reasoned judgment and seek help.” (¶37). Accordingly, COA finds dangerousness proven under these facts.
