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Evidence insufficient to sustain order continuing protective placement under ch. 55

Wood County Human Services v. James D., 2013AP1378, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity

One of the elements of protective placement is that the person has a disability that is permanent or likely to be permanent, § 55.08(1)(d). The County failed to prove this element by clear and convincing evidence because its psychological expert was unable to testify that James suffered from a permanent or likely to be permanent disability, and none of the other witnesses provided evidence that could remedy the lack of the expert’s opinion on that issue:

¶14      We have stated that in order to meet its burden of proof for protective placement, the government “must present a witness who is qualified by experience, training and independent knowledge of [the individual’s] mental health to give a medical or psychological opinion on each of these elements.” [Walworth County v.Therese B., [2003 WI App 223,] 267 Wis. 2d 310, ¶13[, 671 N.W.2d 377]….

¶15      At the hearing, Waltonen [the psychologist] testified that given the information he was provided, he was unable to testify that James suffers from a permanent or likely to be permanent disability. Waltonen acknowledged that he was not provided information concerning James’s history of substance abuse or his prior diagnosis of alcohol-induced dementia. However, the burden lay with the County to present a qualified witness to provide a medical or psychological opinion as to the permanence of any disability James may suffer. Although James was previously diagnosed with alcohol-induced dementia, no medical or psychological opinion was offered at trial from Waltonen that James continues to suffer from that ailment.

¶16      The County argues that even if Waltonen’s testimony is disregarded, the evidence was sufficient to support the court’s finding that James suffers from a permanent, or likely to be permanent, disability. The County asserts that the testimony of Jason [James’s son] and Miloch [a social worker] in conjunction with the report prepared by Sersch [a protective services evaluator], demonstrates that James continues to suffer from ongoing symptoms of alcohol-induced dementia. I am not persuaded. Although the testimony of Jason and Miloch established that James continues to drink alcohol and is likely to continue to do so in the future, and although Miloch’s testimony established that James suffers from problems with his memory, neither individual gave a medical or psychological opinion that James’s alcohol-induced dementia was likely to be permanent. Furthermore, although Sersch stated in his report that James suffers from alcohol-induced dementia, lacks the capacity to provide sufficient care for himself and is in need of protective placement, Sersch’s report does not indicate that James’s disability is permanent or likely to be permanent.

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