Ch. 55 practitioners take note! This is one of a few Wisconsin decisions reversing the continuation of a ch. 55 protective placement due to insufficient evidence. Here, the County failed to prove that due to R.D.S.’s disability he was incapable of caring for himself and posed a substantial risk of serious harm to himself or others. And because the County did not address R.D.S.’s requested remedy (an order allowing him to live with his parents), the court of appeals granted it.
R.D.S. was protectively placed in a group home in 2013. In 2021, the County petitioned for an annual review of that protective placement as required by §55.18 and State ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 362 N.W.2d 104 (1985).
To order a protective placement or the continuation of a protective placement the circuit court must find clear and convincing evidence of the four standards in §55.08(1). R.D.S.’s appeal concerns the third standard, which requires proof that:
As a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual 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 or others. Serious harm may be evidenced by overt acts or acts of omission. §55.08(1)(c).
The circuit court conducted a Watts annual review hearing where three witnesses testified: the examiner, the manager of R.D.S.’s group home, and R.D.S.
The examiner testified that R.D.S. has limited insight into his mental health issues and did not know which medications he was taking. Without protective placement, he would not take his medications, he would decompensate, end up in the hospital, become more paranoid, and have a recurrence of similar symptoms. Opinion, ¶10.
The group home manager testified that R.D.S. made himself a sandwich for breakfast every day, but other meals were provided to him. He could be taught to cook his own meals, but he might forget to turn off the stove. While he had no hygiene problems, she had to prompt him to shower more than once per week. Also, he was generally compliant with medications and could potentially learn to manage them. Opinion, ¶11.
Lastly, R.D.S. testified that he did not want to be protectively placed. He wanted to live with his parents. He promised to take all of his medications. He used to cook meals for the group home residents, and he showers twice per week. Opinion, ¶12.
The circuit court continued R.D.S.’s protective placement because (1) he was unaware of his mental illness and the medications he was taking to address it, (2) he showered once a week, and (3) he needed meal preparation help. Opinion, ¶13.
The court of appeals did not regard this as a close case. The County failed to show a substantial risk of serious harm:
¶14 As to (1), the psychologist testified that, if R.D.S. did not properly take his medication, he could decompensate, become more paranoid, and need to be hospitalized. However, there was no evidence that R.D.S. was not compliant with taking his medication, or that he did not properly do so when he lived with his parents for one week each month. Nor was there evidence as to whether, and how, by “decompensating” and becoming “more paranoid,” R.D.S. would be at substantial risk of endangering himself or others. As to (2), the group home assistant manager testified that R.D.S. showered unprompted no more than once a
week. However, there was no evidence that his doing so caused any hygiene problem. As to (3), the assistant manager testified that R.D.S. did not prepare his meals other than a sandwich for breakfast, and that while he could learn to cook he
might forget to turn off the oven. However, there was no evidence of his being forgetful or of his not eating properly when he lived with his parents for one week each month. This evidence was not sufficient to meet the County’s burden to prove by clear and convincing evidence that, due to his mental illness, R.D.S. was “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 or others.” WIS. STAT.§ 55.08(1)(c).
The examiner’s reasons for continuing this protective placement sound A LOT like the reasons that circuit courts routinely give for extending a ch. 51 commitment. The person doesn’t recognize that he has a mental illness, will stop taking medications, and decompensate. Such evidence is insufficient under ch. 55, a point the court of appeals underscored in ¶20. But it is sufficient for extending ch. 51 commitments year after year.