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Defense Win! Evidence was insufficient to support ch. 55 protective placement order

Outagamie County DHHS v. L.C.E., 2023AP929, District 3, 6/4/24 (one-judge decision; ineligible for publication); case activity

There was insufficient evidence for the protective placement order because the County failed to prove that “Lauren” was “so totally incapable of providing for . . . her own care or custody as to create a substantial risk of serious harm to . . . herself or others,” as required by § 55.08(1)(c).

Lauren was subject to a guardianship under ch. 54, beginning in 2018. In 2019, she was also involuntarily committed under ch. 51, and that commitment was extended sometime in 2020. Lauren successfully appealed the recommitment in 2021. See Outagamie County v. L.C.E., No. 2021AP324, unpublished slip op. (WI App Sept. 8, 2021). (See our post on Lauren’s ch. 51 decision here). The County later petitioned to have Lauren protectively placed under ch. 55.

To meet the requirements of § 55.08(1)(c), “The risk of harm must be substantial. Mere speculation as to difficulties [a ward] may encounter is not sufficient. Specific harm must be foreseeable to fulfill this requirement. Furthermore, the foreseeable harm must be serious. . . . [M]inor accidents, injuries and illness are not sufficient to satisfy this requirement.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15, 275 N.W.2d 143 (1979). Speculative and vague testimony that an individual will be at risk of being taken advantage of, is vulnerable to abuse, or that there are concerns they might not be able to care for themselves, are not sufficient.

The testimony of the two witnesses did not satisfy the County’s burden:

Luke did not specify what kind of abuse Lauren would be “vulnerable” to; why Lauren takes the medication and what symptoms may reappear if she stops taking medication; what activities of daily living Lauren may not be able to perform on her own; how any of these factors would affect Lauren’s ability to care for herself; or how any of these concerns would lead to serious harm to Lauren or others. This evidence does not rise to the level of the specific and substantial risk of serious harm required by WIS. STAT. § 55.08(1)(c). See Zander, 87 Wis. 2d at 514-15; Zebulon K., Nos. 2011AP2387, 2011AP2394, ¶16.

(¶15). The court also notes that Lauren’s guardianship of the person and of her estate would continue regardless of whether she was protectively placed, and therefore concludes that potential vulnerability to financial exploitation, or the inability to manage one’s financial affairs, are not a basis for a protective placement. (¶16).

¶17 Similarly, Dr. Andrade’s testimony does not prove by clear and convincing evidence that Lauren is so incapable of providing for her own care or custody as to create a substantial risk of serious harm to herself or others. Andrade testified that Lauren’s apartment was “[q]uite dirty” and could worsen if Lauren were not protectively placed. However, this vague concern does not demonstrate that Lauren is totally incapable of providing for her own care. See Zebulon K., Nos. 2011AP2387, 2011AP2394, ¶16.

(¶17). The court goes on to consider the doctor’s testimony that Lauren once jumped out of a two-story window. Based on the wording of the circuit court’s factual finding, and the lack of a finding that the doctor was more credible than Lauren (who testified that she had not jumped out of a two-story window), the court of appeals concludes that the record does not support the doctor’s testimony or the circuit court’s finding. (18-19).

Although the briefs are not available from the court of appeals, practitioners may want to look to this opinion, or request the briefs from the Wisconsin State Law Library, for clues on how to handle bad facts and/or factual findings that are based on hearsay in guardianship cases. This opinion shows how hearsay issues, like the “two-story window” claim can be difficult to overcome, and can follow individuals through multiple ch. 51 and ch. 55 petitions. The court’s analysis suggests litigants may be successful if they are able to raise multi-pronged challenges to the reliability of such testimony (combination of hearsay, and the lack of any credibility determination). The court of appeals also concluded that the circuit court’s related factual finding here was clearly erroneous for multiple reasons. (18-19).

As a result, the court of appeals concludes that “[t]he record is devoid of any evidence of a specific and foreseeable harm that Lauren will suffer due to her disability if she is not protectively placed.” (¶20).

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