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Defense Win! COA orders protective placement petition dismissed on remand

Department on Aging v. R.B.L., 2022AP1431, District I, 6/27/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

In this protective placement appeal raising two interesting issues related to the circuit court’s competency, the court of appeals reverses with instructions to dismiss the underlying petition.

R.B.L. has been the subject of a protective placement since 2018. (¶2). On appeal, he raises two interesting challenges to an order entered in 2021 which extended that protective placement. The dispositive issue concerns the right to be physically present. “R.B.L. argues that the GAL did not properly waive his physical presence for the annual review hearings pursuant to WIS. STAT. § 55.10(2).” (¶6).  In order for the waiver of physical presence to pass muster, the GAL must file a “written certification containing the reasons an individual is unable to attend a review hearing.” (¶7). It is well-settled that a failure to validly waive the respondent’s physical presence deprives the circuit court of competency to enter an order extending the protective placement. (¶8). On this point, the Department concedes that R.B.L.’s physical presence was not validly waived and that the circuit court lost competency as a result. (¶6). The court of appeals accepts that concession. (¶7).

This was also the issue that led to relief in Racine County v. P.B., which we posted about here.

However, the parties disagree as to the correct remedy. (¶9). R.B.L. asks for dismissal. (Id.). The Department asks for a remand, so that it can conduct a hearing with R.B.L. physically present. (Id.). This is where R.B.L’s other issue becomes relevant, and where appellate practitioners can witness the devastation wrought by the Department’s imputed concession.

In addition to his physical presence issue, R.B.L. also argues that the Department lost competency when it failed to abide by the statutory requirements for filing the annual review paperwork. (¶5). Under § 55.18(1)(a), the petition seeking an annual review must be filed no “later than the first day of the 11th month after the initial order is made for protective placement for an individual and … annually thereafter.” (Id.). Here, that paperwork appears to have been filed several months late. (Id.).

The Department does not respond to this argument, thereby conceding it in R.B.L.’s favor. (¶9). Instead, the Department explicitly asks the court to ignore the issue given its concession on the physical presence issue. (¶6). However, R.B.L. also asked for dismissal as a remedy for the timing defect, a nuance seemingly lost on the Department. (¶9).  The court of appeals therefore grants that relief and ducks the parties’ dispute as to the proper remedy for an invalid waiver of physical presence. (Id.).

This case, in addition to demonstrating the harsh repercussions of an imputed concession, also touches on two interesting (and likely recurring) protective placement issues. Litigators handling such cases therefore need to be double-checking two important pieces of record evidence. As to the physical presence issue, litigators need to be checking not only that the appropriate box waiving the respondent’s presence is checked on the appropriate form, but also that the GAL fills in the blank explaining why the respondent is unable to attend. Second, careful calculation of the applicable deadline is essential; as this case demonstrates, the plain language of the statute is likely being ignored in many protective placement reviews and this issue is ripe for future challenge.


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