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Defense win! Evidence held insufficient to support protective placement

J.C. v. R.S., 2022AP1215 , 2/16/23, District 4, (1-judge opinion, ineligible for publication); case activity

In a rare Chapter 55 reversal, the court of appeals held that the petitioner failed to prove that the individual under review had a degenerative brain disorder that was likely to be permanent.

In June 2021, R.S.’s daughter petitioned for guardianship of her person. R.S. did not contest the petition, and the circuit court appointed her son as her guardian. A few months later, the daughter petitioned for protective placement of R.S.

A circuit court may order protective placement when a person: (1) has “a primary need for residential care and custody”; (2) is “an adult who has been determined to be incompetent by a circuit court”; (3) is “so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself” because of a “degenerative brain disorder … or other like incapacities”; and (4) has “a disability that is permanent or likely to be permanent.” (Opinion, ¶11)  (quoting §55.08(1)(a)-(d)).

The circuit court found that the daughter had satisfied all 4 elements. R.S. appealed and argued, among other things,  that the evidence offered on elements (3) and (4) was insufficient.

The daughter did not offer any evidence from the protective placement hearing to support the third and fourth elements. Instead, she relied on R.S.’s failure to dispute the petition for guardianship, claiming that R.S. thereby conceded that she has a degenerative brain disorder, and it is permanent.

The court of appeals disagreed first because “§54.48 makes clear that a grant of a guardianship is not grounds for an involuntary protective placement: ‘A finding of incompetency and appointment of a guardian under this chapter is not grounds for involuntary protective placement or the provision of protective services. A protective placement and the provision of protective services may be made only in accordance with [WIS. STAT.] ch. 55.'” (Opinion, ¶21).

Second, the record included no basis to support the daughter’s assertion because no transcript from the guardianship hearing exists. R.S. ordered it but when the court reporter tried to access the recording to prepare the transcript, none was available. The court of appeals declined to hold R.S. responsible for the incompetence of the person responsible for recording the guardianship hearing. (Opinion, ¶22 ).

Third, the court of appeals held that the circuit court never should have granted the guardianship. Even if the guardianship was uncontested, the circuit court still needed the “medical or psychological report” required by §54.36(1) and R.S. v. Milwaukee Cnty., 162 Wis. 2d 197, 470 N.W.2d 260 (1991). The only report filed was by a physician assistant. A physician assistant is not a physician or a psychologist. (Opinion, ¶22 )(citing §448.01(5) and §455.04(1)).

Fourth, the physician assistant’s report does say that R.S. has a degenerative brain disorder that is likely permanent. However, the substance of an examiner’s report is hearsay unless the author testifies. R.S., 162 Wis. 2d at 207. The physician assistant did not testify at R.S.’s protective placement hearing.

In dicta, the court of appeals addressed the type of opinion required for a protective placement. R.S. claimed that the physician or psychologist who signed the §54.36(1) report for the guardianship also had to testify to the medical or psychological opinion at the protective placement hearing. The court of appeals disagreed. It said: “Neither WIS. STAT. ch. 55 nor any other authorities require that such an opinion must be from only a physician or psychologist. Instead, the circuit court must determine whether opinions are admissible pursuant to WIS. STAT. §907.02(1), and those may (or may not) be from a physician’s assistant based on the record made at the hearing.” (Opinion, ¶27).

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