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Defense win! Evidence of “least restrictive alternative” insufficient to support continued protective placement

Clark County v. R.F., 2022AP481, District 4, 9/1/22, (1-judge opinion, ineligible for publication); case activity

Too bad this decision isn’t recommended for publication.  The court of appeals reversed an order continuing a ch. 55 protective placement because the County failed to offer clear and convincing evidence that the continuation of protective placement would provide the least restrictive environment consistent with R.F.’s needs.  And because the County failed to respond to R.F.’s requested remedy, the court of appeals granted it. It remanded the case with directions to order the County to transition R.F. to protective services.

R.F. was protectively placed in 2018 due to mild intellectual disability and bipolar disorder, a serious and persistent mental illness.  This appeal concerns his challenge to the 2021 annual review of his protective placement mandated 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). Briefly, they are: (a) the individual has a primary need for residential care and custody; (b) the individual is an adult who has been determined to be incompetent; (c) as a result of developmental disability or serious and persistent mental illness, he is so incapable of caring for himself that he poses a serious risk of harm to himself or others; and (d) he has a disability that is permanent or likely to be permanent.

In addition, a county must prove that the protective placement “shall be provided in the least restrictive environment and in the least restrictive manner consistent with the needs of the individual to be protected and with the resources of the county department.” See Wis. stat. §55.12(12)(3) and §55.001.

R.F. argued that the County failed to prove standards (a) and (c) by clear and convincing evidence. His needs could be addressed with a less restrictive alternative like protective services with a nurse periodically checking to see if he was taking his medications correctly.

The county tried to shift the burden of proof to R.F. by insisting that he had to show the existence of a less restrictive set of alternatives. The court of appeals wouldn’t have it.

¶19  . . . It was for the County to demonstrate that the “least restrictive environment” is protective placement. The County misses the target if its position is that it was enough to show that R.F. would do less well—even very much less well—living in the community without any support, as compared with living in the protective placement. A meaningful assessment of the potential for less restrictive alternatives to protective placement would have to include discussion of specific alternatives and their likelihood of success (or why success was unlikely). In sum, there appears to have been no exploration by the parties and the circuit court how care might be provided for this young man in a residential setting other than the protective placement.

¶20 Said in more general terms, it is fatal to the County’s argument that it completely fails to account for the following possibility: that R.F. was incapable of providing for his own care or custody when not provided some kind of protection under WIS. STAT. ch. 55 or his guardianship, but that he could do so with some combination of restrictions or protections that do not include protective placement specifically.

Four witnesses testified at this annual review hearing. Two offered testimony supporting continued protective placement, and two offered testimony against it. One expert was on each side.  The court of appeals had to defer the trial court’s assessment of the credibility of the witnesses and the weight assigned to various pieces of evidence. The problem was they didn’t address the subject of least restrictive alternatives. And the County failed to develop an argument that the court of appeals could infer that protective placement was the least restrictive alternative from any parts of the testimony.  It would not abandon its neutral role to construct such an argument for the County.  Opinion, ¶25.

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