Dodge County H.H.S. v. L. W.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 19, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1754 Cir. Ct. No. 2020GN4

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE CONDITION OF L.W.:

DODGE COUNTY HEALTH AND HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

L. W.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1754

¶1 PER CURIAM. L.W. appeals orders for guardianship and
protective placement. We affirm.1

¶2 We begin by reciting the applicable legal standards for guardianship
of the person. A circuit court may appoint a guardian if the petitioner proves by
clear and convincing evidence that the person, “because of an impairment, … is
unable effectively to receive and evaluate information or to make or communicate
decisions to such an extent that the individual is unable to meet the essential
requirements for his or her physical health and safety.” WIS. STAT. § 54.10(3)(a)2.

¶3 Two important terms in that provision are defined. As relevant to
this case, “impairment” is defined as a “serious and persistent mental illness.”
WIS. STAT. § 54.01(14). In addition, “[m]eet the essential requirements for
physical health or safety” means to “perform those actions necessary to provide
the health care, food, shelter, clothes, personal hygiene, and other care without
which serious physical injury or illness will likely occur.” Sec. 54.01(19).

¶4 L.W. also relies in part on a further provision: “Unless the proposed
ward is unable to communicate decisions effectively in any way, the
determination” to appoint a guardian under WIS. STAT. § 54.10(3)(a) “may not be
based on mere old age, eccentricity, poor judgment, physical disability, or the
existence of a supported decision-making agreement.” Sec. 54.10(3)(b).

1
This appeal is decided by a three-judge panel because, when a case involves both
guardianship under WIS. STAT. ch. 54 (2019-20) and protective placement under WIS. STAT. ch.
55 (2019-20), it is decided by a three-judge appeal. Waukesha Cnty. v. Genevieve M., 2009 WI
App 173, ¶5, 322 Wis. 2d 131, 776 N.W.2d 640 (per curiam).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2020AP1754

¶5 The applicable standard of review is mixed. We do not overturn the
circuit court’s factual findings unless they are clearly erroneous, but the issue of
whether the evidence satisfies the legal standards for guardianship and protective
placement are questions of law. Walworth Cnty. v. Therese B., 2003 WI App
223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. The circuit court’s weighing of
conflicting expert opinions is a finding of fact to which we defer. Id., ¶26.

¶6 Here, the circuit court found that L.W. is unable to effectively
receive and evaluate information. L.W. asserts that inability to effectively receive
and evaluate information is a legal conclusion that the court erred in making, and
not a finding of fact to which we defer unless it is clearly erroneous. She cites no
authority for that proposition, and we disagree with it. The question is one of
causation, specifically, whether the person’s impairment causes an inability to
effectively receive and evaluate information. As applied in this case, we regard
the effects of L.W.’s mental illnesses on her mental process as a factual question.
This is consistent with Therese B. See id., ¶¶21, 23-24. Further, even if this were
a legal conclusion, the result of this appeal would be the same.

¶7 Two experts submitted reports and testified to differing opinions,
one in support of the petition and one not. L.W. argues that the circuit court’s
finding that she was unable to effectively receive and evaluate information was
erroneous due to flaws in the testimony of the expert whose opinion supported the
petition.

¶8 In L.W.’s view, the flaw in this expert’s opinion is that he employed
a faulty premise that bad decisions on L.W.’s part are sufficient to show that she
was unable to effectively receive and evaluate information. This premise is
flawed, she argues, because poor judgment and bad outcomes are not, by

3
No. 2020AP1754

themselves, a basis for guardianship. She argues that there was no testimony that
her types of mental illnesses necessarily impact a person’s understanding or
decision-making.

¶9 L.W.’s focus on the testimony of this expert fails to acknowledge the
expert’s written report. When we look at the hearing testimony alone, L.W.’s
description of the testimony is at least partially accurate. There is no testimony
about her specific mental illnesses, how they affect her behavior, or how they
cause her to be unable to effectively receive and evaluate information. There is
only a generic statement, repeating the legal standard, that she has serious and
persistent mental illness. But no specific illness is identified or described.

¶10 However, the expert’s written report, which was received in
evidence, provides more information, and we quote it at length:

She is diagnosed with major depression by history,
an adjustment disorder with a major personality disorder,
history of schizoaffective disorder, history of cannabis use
disorder but living in a restrictive environment, and
developmental coordination disorder. This is characterized
by poor judgement, lack of insight, impaired reasoning and
planning….

As a result of this disorder she has impairments.
She lacks the evaluative capacity to communicate and make
decisions. In the area of person, she is not able to provide
medical care for herself, seek medical care, allow medical
treatment, handle her catheter, clean herself and living area
with her bowel and urine problem. She cannot shop for
groceries and other items. She refuses any supportive care.
She believes that she can live entirely by herself but, then,
admits that she cannot do the necessary actions to support
herself…. She cannot find shelter which will accommodate
her incontinence difficulties. She is a health and safety risk
to herself due to infections. She cannot adapt to an
emergency without assistance.

4
No. 2020AP1754

¶11 It is clear from this report that the expert did not, as L.W. argues,
employ a premise that bad decisions on L.W.’s part are sufficient to show that she
was unable to effectively receive and evaluate information. Instead, the expert
described the effects of her mental illnesses, and opined that they cause her to lack
the “evaluative capacity” to make decisions.

¶12 L.W. also argues that the expert relied on his subjective belief as to
what choices she should make, and applied a standard under which a person is
competent only if she makes decisions that seem rational to others and that have
good outcomes. L.W. asserts that many adults make decisions that would fail this
standard by smoking, drinking alcohol and taking illegal drugs, or not taking
vaccinations and other medical care.

¶13 We disagree with this argument. The expert used the proper
measure, which is embedded in the statute: whether the person is unable to meet
the essential requirements for his or her physical health and safety, which means
being unable to “perform those actions necessary to provide the health care, food,
shelter, clothes, personal hygiene, and other care without which serious physical
injury or illness will likely occur.” WIS. STAT. § 54.01(19).

¶14 This definition establishes that the types of decisions by others that
L.W. refers to would not be a basis for guardianship under this provision. For
example, smoking may, in the long run, cause serious illness, but it does not do so
by making the person unable to obtain health care, food, shelter, clothes, personal
hygiene, or other care. For a guardianship to be appropriate, those are the effects
that the person’s impairment must cause. The statute does not, as L.W. suggests,
encompass all decisions that may lead to serious injury or illness, and that is what

5
No. 2020AP1754

makes L.W.’s situation substantively different from the types of decisions that she
attempts to equate her situation to.

¶15 To the extent that L.W. is arguing that the expert’s conclusion was
contrary to the paragraph which provides that a guardianship generally may not be
based on “poor judgment,” see WIS. STAT. § 54.10(3)(b), that paragraph does not
mean that evidence of poor judgment cannot be considered at all in any stage of
applying the statutory standard. Instead, a court may consider whether poor
judgment that has been shown was the product of an impairment, such as serious
and persistent mental illness. If it is not, then this paragraph clarifies that mere
poor judgment not caused by an impairment is not a basis for guardianship.
However, here, as we quoted above, the expert regarded poor judgment as a
feature of L.W.’s mental illnesses. Thus, it is appropriate to consider the ways in
which that poor judgment makes her unable to meet her needs.

¶16 L.W. asserts that the circuit court erred by basing its decision in part
on the court’s difficulty in understanding L.W.’s motivations to make decisions
that have bad outcomes. However, motivation is a proper consideration. In
indicating that L.W.’s motivation for making decisions with bad outcomes is
difficult to understand, the court was reasonably implying that the decisions were
coming from a source other than rational motivation, namely, mental illness.

¶17 L.W. argues that the circuit court “took a paternalistic approach” in
which it found her incompetent because a guardian could make better decisions
about her health than she can. As we have discussed, the court’s decision was
based on more than just the quality and outcomes of her decisions. Instead, the
court found that they were the product of serious and persistent mental illness.

6
No. 2020AP1754

¶18 Finally, L.W. also relies on the opinions of the expert who did not
support the petition. However, in reviewing findings of fact, we do not search for
evidence that supports findings the court did not make. See Dickman v. Vollmer,
2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202. It was, as we have
stated, up to the circuit court to weigh the conflicting expert opinions.

¶19 L.W. also argues that the court erred by ordering a guardian of the
estate. For guardianship of the estate, as relevant to this case, the standard is
whether L.W.’s mental illnesses caused her to be unable to effectively receive and
evaluate information related to the management of her property or financial affairs
to the extent that: (1) her property will be dissipated in whole or part; (2) she is
unable to provide for her support; or, (3) she is unable to prevent financial
exploitation. WIS. STAT. § 54.10(3)(a)3.

¶20 L.W. argues that the County failed to prove any of these three
possible outcomes. The circuit court’s oral decision did not discuss these points.
The court’s written form order includes a check box that the court uses to indicate
that the person meets one of these standards, but without indicating which
standard is met.

¶21 L.W. asserts that the County did not introduce any evidence that she
was without support or that her bills went unpaid at any time. This is inaccurate.
It omits the history, which she does not factually dispute, of her spending her
income for non-essential items, while allowing her electricity to be shut off for
nonpayment. In addition, L.W. fails to acknowledge the events that led her, on
November 7, 2019, to be staying at a hotel, with no more money for the remainder
of the month for shelter, food, or other essentials. These facts satisfy the legal
standard of being unable to provide for her support.

7
No. 2020AP1754

¶22 L.W. argues that the fact that she chooses to spend money on non-
essential items does not prove that she is unable to receive and evaluate
information. This argument is similar to one we rejected above regarding
guardianship of the person, and we reject this one for the same reason: the
relevant finding was based on more than simply the fact that her choices led to bad
outcomes.

¶23 L.W. also argues that the order for protective placement should be
reversed. She argues that the circuit court failed to make the required finding that
she is “totally incapable” of providing for her own care or custody, creating a
substantial risk of serious harm to herself or others. See WIS. STAT. § 55.08(1)(c).
While it is true that the court’s oral ruling did not directly address this point, other
than saying that “there is a need for” protective placement, the written check box
form order includes this finding.

¶24 L.W. argues that the finding was clearly erroneous because she is not
“totally incapable” of providing for her own care, and that the evidence instead
shows that she is capable of accessing medical or other services when necessary.
We reject this argument because the record amply demonstrates that her attempts
to access services have occurred mainly after she has already placed herself at
substantial risk of serious harm through her conduct.

¶25 L.W. also argues that the court’s decision disregards the distinction
between refusing care and being incapable of providing for one’s care. However,
when as here the circuit court has a reasonable basis to find that the person’s
refusal was the product of mental illness, there is no meaningful distinction.

8
No. 2020AP1754

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

9