Racine County HSD v. K. M.

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT II
January 28, 2026
To:
Hon. Timothy D. Boyle
Circuit Court Judge
Electronic Notice
Teresa Hill
Register in Probate
Racine County Courthouse
Electronic Notice
Christine A. Gabron
Electronic Notice
Sarah Maureen Kidd
Electronic Notice
Jill Marie Skwor
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2024AP2077 Racine County HSD v. K.M. (L.C. #2022GN91)
Before Neubauer, P.J., Gundrum, and Lazar, JJ.
Summary disposition orders 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).
K.M., hereafter referred to under the pseudonym “Kerry,” appeals the continuation of his
guardianship and protective placement. Based upon our review of the briefs and record, we
conclude at conference that this case is appropriate for summary disposition. See WIS. STAT.
RULE 809.21 (2023-24).1 We summarily affirm.
At the outset, we note that Kerry claims to be challenging the guardianship he has been
subject to since 2022. On October 16, 2023, the County petitioned for the first annual review of
1 All references to the Wisconsin Statutes are to the 2023-24 version.

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Kerry’s protective placement order. Ten days later, using form GN-4110, “Report and
Recommendation of Guardian ad Litem (Annual Review of Protective Placement),” Kerry’s
guardian ad litem filed a report and recommendation as required by WIS. STAT. § 55.18, the
statute governing protective placement. In paragraph 4E of the protective placement report, the
guardian ad litem indicates: “The ward wishes to contest his placement and the need for
guardianship.” However, at no point did Kerry file a petition for review or termination of
guardianship—via state form GN-3670, which concerns review of an adult guardianship, or via
any other type of filing. At the protective placement hearing that followed, the circuit court
referenced the fact that Kerry wanted his protective placement and guardianship reviewed and
orally ruled that the guardianship and protective placement should both continue. Following the
hearing, however, the circuit court issued a written order pertaining solely to Kerry’s protective
placement. No written order regarding the guardianship was entered.
Given that no petition to review the adult guardianship was filed, and given that the only
final order in the record pertains solely to the protective placement, we will limit our review to
Kerry’s protective placement order, which we consider under a mixed standard of review. We
uphold the circuit court’s findings of fact unless they are clearly erroneous. See Coston v.
Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998). Whether the evidence supports
protective placement is a question of law we review de novo. See id. at 23.
Protective placement orders are subject to annual review pursuant to WIS. STAT. § 55.18.
See State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 84, 362 N.W.2d 104
(1985). When a ward contests the continuation of the protective placement order, a full due
process hearing before a circuit court judge is required. WIS. STAT. § 55.18(3)(d); see also
Watts, 122 Wis. 2d at 85.

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To order the continuation of the protective placement order, the circuit court must find
that there is clear and convincing evidence that the ward continues to meet the standards for
protective placement under WIS. STAT. § 55.08(1). Section 55.08(1) requires the circuit court to
find that the proposed ward meets all of the following standards:
(a) The individual has a primary need for residential care and
custody.
(b) The individual is a minor who is not alleged to have a
developmental disability and on whose behalf a petition for
guardianship has been submitted, or is an adult who has been
determined to be incompetent by a circuit court.
(c) 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.
(d) The individual has a disability that is permanent or likely to be
permanent.
Sec. 55.08(1).
In addition, the court must also find that the protective placement is the least restrictive
under the circumstances. WIS. STAT. § 55.18(3)(e)1.-2.
On appeal, Kerry challenges the sufficiency of the evidence supporting the continuation
of his protective placement. See Walworth County v. Therese B., 2003 WI App 223, ¶21, 267
Wis. 2d 310, 671 N.W.2d 377 (whether evidence sufficiently supports protective placement is a
question of law subject to de novo review). Specifically, he argues that the evidence was
insufficient to show that: (1) he had a primary need for residential care and custody; (2) he was
incompetent; (3) he suffered from a mental illness to such a degree that he presented a substantial
risk of serious harm to himself or others; (4) his disability was permanent or likely to become

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permanent; and (5) his present placement was the least restrictive option under the
circumstances.
Turning to the record before us, we conclude there was clear and convincing evidence
sufficient to show that Kerry had a primary need for residential care and custody. See id.; see
also WIS. STAT. § 55.08(1)(a). Licensed psychologist Dr. Tammy Zimmel testified at Kerry’s
protective placement hearing that Kerry continues to require placement in a licensed, certified, or
registered setting and has a primary need for residential care and custody. Dr. Zimmel stated that
Kerry has these placement needs because he requires help cooking for himself, needs reminders
to take his medication, and also requires housekeeping and laundry support. Dr. Zimmel further
testified that Kerry needs assistance dressing himself due to the weakness in his left hand
following a stroke, and requires “cues and prompts to complete basic grooming and hygiene
needs.” Dr. Zimmel also testified that Kerry lacks insight into medical and mental health
conditions, including: not understanding the circumstances regarding his initial protective
placement order, identifying only two of approximately eight medical conditions he struggles
with, and identifying only “three of eighteen of scheduled medications that he is prescribed.”
While Kerry testified that he can shower, brush his teeth, cook, do laundry, and manage his
finances independently, Dr. Zimmel’s testimony contradicts Kerry’s testimony.
Likewise, we agree that clear and convincing evidence sufficiently supports the
conclusion that Kerry remains incompetent. See WIS. STAT. § 55.08(1)(b). An incompetent
person is one who has been “‘adjudged by a court of record to be substantially incapable of
managing his or her property or caring for himself or herself by reason of infirmities of aging,
developmental disabilities, or other like capacities.’” Joseph P., 222 Wis. 2d at 23 (citation
omitted). Dr. Zimmel testified that in her professional opinion, Kerry was incapable of caring

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for himself due to his physical and mental health challenges. Contrary to what Kerry argues, it
was not simply that Kerry disagreed with his diagnoses that Dr. Zimmel found him incompetent.
Dr. Zimmel testified that Kerry suffered from a serious and persistent mental illness, a major
neurocognitive disorder, and vascular concerns. Dr. Zimmel also opined that Kerry lacked
insight as to the severity of his diagnoses, and further, when she asked him how he planned to
personally gauge the effectiveness of his medications, Kerry’s responses were “tangential” and
“unable to answer that question.” Moreover, Dr. Zimmel not only indicated Kerry does not
understand or appreciate the nature and consequences of his impairments, but she also testified
that Kerry is unable to protect himself from abuse, exploitation, neglect, or meet the essential
requirements for his own health and safety.
Similarly, we conclude because of Kerry’s physical and mental health challenges, he “is
so totally incapable of providing for his … own care or custody as to create a substantial risk of
serious harm to himself or … others.” See WIS. STAT. § 55.08(1)(c). In addition to the numerous
factors noted by Dr. Zimmel above, we agree with the circuit court that Kerry put himself at
serious personal risk by failing to take his blood pressure medication and by refusing to follow
the facility’s rules prohibiting smoking in his room, which was cluttered with boxes and totes
and created a fire hazard.
We also conclude that Kerry’s disabilities are permanent or likely to be permanent. See
WIS. STAT. § 55.08(1)(d). Dr. Zimmel opined as much after interviewing Kerry, the
administrator of the residential facility, and Kerry’s guardianship representative. Dr. Zimmel
also reviewed the guardian ad litem report, the protective placement review, and Kerry’s
previous psychology report, as well as Kerry’s current resident information sheet, current care
plan, medication and problem lists.

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Finally, we conclude that Kerry’s protective placement is the least restrictive under the
circumstances. See WIS. STAT. § 55.18(3)(e)1. Dr. Zimmel testified that Kerry required
placement in a community-based residential facility or adult home. She further opined that
Kerry required 24-hour supervision and monitoring of his egress. While Kerry argues he does
not require this support and supervision, he presents no contrary evidence beyond his own
opinion. In contrast, Dr. Zimmel reached her conclusions after conducting numerous interviews
and reviewing several reports. Indeed, Dr. Zimmel noted that when she interviewed Kerry, he
appeared disheveled—his clothing had cigarette burns and food stains and his nails were long
and dirty—and that his room was extremely cluttered. She noticed that Kerry had difficulty
walking and keeping his balance, and that his left hand, which had been injured in a stroke, was
almost completely useless, making it difficult for Kerry to dress himself. Furthermore, Kerry did
not seem to understand the extent of his health challenges; for example, he told Dr. Zimmel that
he did not believe he had a stroke when his medical records indicated that he did in fact suffer
one.
In sum, the evidence sufficiently supports the circuit court’s decision to continue Kerry’s
protective placement under the standards required by WIS. STAT. § 55.08(1), see Therese B., 267
Wis. 2d 310, ¶21, and it sufficiently shows that protective placement was the least restrictive
placement under the circumstances, see also WIS. STAT. § 55.18(3)(e)1.-2.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is summarily affirmed pursuant to
WIS. STAT. RULE 809.21.

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IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals