Clark County v. R. D S.

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 18, 2022
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. 2022AP229 Cir. Ct. No. 2013GN2P

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE GUARDIANSHIP AND
PROTECTIVE PLACEMENT OF R.D.S.:

CLARK COUNTY,

PETITIONER-RESPONDENT,

V.

R. D. S.,

RESPONDENT-APPELLANT.

APPEAL from order of the circuit court for Clark County:
LYNDSEY BRUNETTE, Judge. Reversed and cause remanded with directions.
No. 2022AP229

¶1 KLOPPENBURG, J.1 R.D.S. appeals the circuit court’s order
continuing his protective placement in a group home pursuant to WIS. STAT.
§ 55.08(1). R.D.S. argues that: (1) the circuit court improperly shifted the burden
of proof; and (2) there was insufficient evidence presented at the hearing to
support a continuation of R.D.S’s protective placement. As explained below, the
record establishes that Clark County Community Services (the County) failed to
prove by clear and convincing evidence that the standards for continuing
protective placement were met.2 Accordingly, I reverse the order continuing
R.D.S.’s protective placement.

¶2 R.D.S. requests that, if this court reverses the order for continued
protective placement, the court “remand this matter to the circuit court with
directions to enter an order allowing R.D.S. to live with his parents, with
protective services.” The County does not respond to R.D.S.’s request or
otherwise address the remedy in the event of reversal, which I deem as a
concession that R.D.S.’s requested remedy is appropriate. See Schlieper v. DNR,
188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (explaining that “[t]his

1
This case initially involved both a petition for permanent guardianship under WIS.
STAT. ch. 54 and a petition for protective placement under WIS. STAT. ch. 55. Because this
appeal involves only the protective placement order, it is decided by one judge pursuant to WIS.
STAT. § 752.31(2)(d) (2019-20). See Waukesha County v. Genevieve M., 2009 WI App 173, ¶5,
322 Wis. 2d 131, 776 N.W.2d 640 (per curiam) (“appeals which involve only a protective
placement order … will be assigned for decision by one court of appeals judge.”).

The parties completed briefing of this appeal on July 8, 2022.

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

Because this conclusion is dispositive, I do not address R.D.S.’s burden-shifting
2

argument. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).

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No. 2022AP229

court has held that respondents cannot complain if propositions of appellants are
taken as confessed which respondents do not undertake to refute”). Accordingly, I
also remand to the circuit court with directions to enter an order allowing R.D.S.
to live with his parents, with protective services.3

BACKGROUND

¶3 R.D.S. was first placed in a group home pursuant to an order for
protective placement in 2013, and since then he has lived in that group home
pursuant to orders continuing his protective placement. In May 2021, the County
filed a petition for an annual review of the status of R.D.S.’s protective placement.

¶4 The circuit court held a Watts4 hearing in August 2021. Three
witnesses testified at the hearing: the psychologist who examined R.D.S. before
the hearing (whose report was also entered into evidence), the assistant manager of
the group home where R.D.S. is protectively placed, and R.D.S. Their testimony
is described in detail blow. After the close of evidence, the County argued that
R.D.S.’s protective placement be continued, R.D.S.’s counsel argued that the
County failed to meet its burden of showing that the standards for continuing

3
The parties do not argue, and it does not appear from the record, that the order being
reversed has expired. Accordingly, the requested remedy of reversal and remand with directions
is not precluded by our supreme court’s recent ruling that, with respect to a recommitment order
under WIS. STAT. ch. 51, if the order being reversed has expired, “the circuit court lacks
competency to conduct any proceedings on remand. Therefore, reversal is the appropriate
remedy in this case.” Matter of Commitment of M.W., 2022 WI 40, ¶4, 402 Wis. 2d 1, 974
N.W.2d 733.
4
State ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65,
362 N.W.2d 104 (1985) (requiring an annual review of the necessity of a hearing and, if
necessary, a “full due process hearing” on the need for continued protective placement).

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No. 2022AP229

protective placement were met, and the guardian ad litem recommended that the
court order protective services in lieu of protective placement.

¶5 The circuit court granted the County’s petition for continued
protective placement of R.D.S., and this appeal followed.

DISCUSSION

¶6 Decisions on protective placement are within the sound discretion of
the circuit court. Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d 411,
678 N.W.2d 285. “The circuit court’s factual findings will not be overturned
unless clearly erroneous.” Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d
52, 61 (Ct. App. 1998); see WIS. STAT. § 805.01(2). The issue of whether the
evidence satisfies the legal standard for protective placement is a question of law
that we review de novo. Coston, 222 Wis. 2d 23.

¶7 Before a circuit court can order the protective placement of an
individual, it must find by clear and convincing evidence that the individual meets
all four standards in WIS. STAT. § 55.08(1). WIS. STAT. § 55.10(4)(d). Those
standards are as follows:

(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

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No. 2022AP229

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).

¶8 Here, R.D.S. challenges only whether the third standard, WIS. STAT.
§ 55.08(1)(c), was proven by clear and convincing evidence. Specifically, R.D.S.
argues that the County failed to present sufficient evidence to show that his mental
illness has resulted in his being “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.” WIS. STAT. § 55.08(1)(c).

¶9 At the August 2021 hearing, the County’s expert witness, licensed
psychologist Dr. Michael Lace, testified that, in preparation for the hearing, Lace
met with R.D.S. by telephone for approximately forty-five minutes and reviewed
R.D.S.’s most recent evaluation in 2018. Lace also prepared a report that was
entered into evidence.

¶10 Lace testified that his main concern is R.D.S.’s limited “insight and
judgment” in terms of his denying that he has any mental health-related issues and
his not knowing what medications he is taking. Lace opined that, based on
R.D.S.’s lack of awareness of both his mental illness and his medications, without
24-hour supervision, R.D.S. would not likely comply with his medications and
treatment, and he would likely “decompensate and perhaps end up in the hospital”
and become “more paranoid, and have a recurrence of []similar symptoms.” Lace
testified that R.D.S. made no specific comments indicating that he does not want
to take his medications or would not take them without supervision, nor did Lace
see any specific instances in the record of any issue with R.D.S. not taking his

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No. 2022AP229

medications. Lace testified that he believes that “residential care and custody …
would be the best fit” in order to help R.D.S. with “medication management,” but
also that protective services could be appropriate “if someone is working closely
with him.” Lace testified that there would be safety issues if R.D.S. “was
completely cut off from services … and didn’t have any protective services at the
very least.”

¶11 Also at the August 2021 hearing, Riley Meyers, assistant manager at
the group home where R.D.S. is protectively placed, testified that R.D.S. prepares
a sandwich for his breakfast and that the group home staff cook R.D.S.’s other
meals, prompt him to shower more than once a week, and administer his
medications. Meyers testified that she has not seen R.D.S. cook meals but that he
could if he was willing to learn, though he might forget to turn off the oven; that
he has no personal hygiene issues other than not showering more than once a
week; and that he is generally compliant with taking his medications and could
potentially learn to manage his own medications. Meyers testified that she is
aware of no inappropriate behaviors during R.D.S.’s visits with his parents at their
home.

¶12 As the third witness at the August 2021 hearing, R.D.S. testified that
he wants the circuit court to discontinue his protective placement and that he
would go live with his parents. He testified that he lives at his parents’ home one
week each month, and that when he is there he takes his medication in labeled
packets. He testified that, if he went to his parents’ home he would take all the
medications he is prescribed, even though he believes that he does not need them,
and that he would not oppose the court ordering that someone come to his parents’
home and make sure that he is taking his medications every day. He testified that
he used to cook meals for the group home residents, that he showers twice a week

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No. 2022AP229

and does not need to be prompted, and that he takes his medications without being
prompted.

¶13 The evidence presented at the hearing and credited by the circuit
court identified the following three concerns with not continuing R.D.S.’s
protective placement at the group home: (1) medication management, given his
lack of awareness of either his mental illness or the medications he takes to
address his mental illness; (2) showering; and (3) meal preparation.

¶14 As to (1), the psychologist testified that, if R.D.S. did not properly
take his medication, he could decompensate, become more paranoid, and need to
be hospitalized. However, there was no evidence that R.D.S. was not compliant
with taking his medication, or that he did not properly do so when he lived with
his parents for one week each month. Nor was there evidence as to whether, and
how, by “decompensating” and becoming “more paranoid,” R.D.S. would be at
substantial risk of endangering himself or others. As to (2), the group home
assistant manager testified that R.D.S. showered unprompted no more than once a
week. However, there was no evidence that his doing so caused any hygiene
problem. As to (3), the assistant manager testified that R.D.S. did not prepare his
meals other than a sandwich for breakfast, and that while he could learn to cook he
might forget to turn off the oven. However, there was no evidence of his being
forgetful or of his not eating properly when he lived with his parents for one week
each month. This evidence was not sufficient to meet the County’s burden to
prove by clear and convincing evidence that, due to his mental illness, R.D.S. was
“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.” WIS. STAT.
§ 55.08(1)(c).

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No. 2022AP229

¶15 The County’s arguments to the contrary are unavailing. The County
argues that R.D.S.’s testimony about properly taking his medication and caring for
himself while at his parents’ home is uncorroborated. However, this argument is
refuted by the record. The psychologist testified that there is no indication of
medication management issues in the record that he reviewed, and the group home
assistant manager testified that there is no indication of inappropriate behaviors by
R.D.S. while at his parents’ home.

¶16 The County argues that R.D.S.’s testimony about an old, undisputed
multi-million dollar judgment in favor of his prior business constitutes a
“preoccupation” that is a “symptom of his longstanding impairments relating to
his mental illness.” However, the County does not explain how this
“preoccupation” shows a substantial risk of danger to R.D.S. or others.

¶17 The County argues that the circuit court found the group home
assistant manager’s testimony more credible than R.D.S.’s as to his showering no
more than once per week. However, as stated, the County points to no evidence
that such a practice poses any risk of danger to R.D.S. The County asserts that the
assistant manager testified that R.S.D. needed to be prompted to shower even once
per week. This assertion misrepresents her testimony. She testified that he “just
wants to [shower] once a week” and group home staff prompt him “to take more
showers during the week.”

¶18 The County argues that the circuit court properly weighed the
evidence as to whether R.D.S. is incapable of providing for his own care or
custody. However, as explained, there is little if any evidence showing that R.D.S.
is so incapable as to be at substantial risk of endangering himself; the testimony
described above does not constitute clear and convincing evidence to that effect.

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No. 2022AP229

¶19 The County argues that the evidence of R.D.S.’s unwillingness to
perform activities of daily living reflects his mental illness and proves his inability
to do so. However, while it may reflect R.D.S.’s mental illness, there is no
evidence that R.D.S. is unwilling to or does not perform the activities identified as
concerns so as to risk his health and safety. That is, there is no evidence that he is
not compliant with taking his medication, either at the group home or at his
parents’ home; there is no evidence that his showering no more than once per
week endangers him; and there is no evidence that he does not eat properly when
away from the group home at his parents’ home.

¶20 The County argues that it is sufficient that the psychologist testified
that R.D.S.’s unawareness of his mental illness and medication needs means that,
if he were not protectively placed, there is a risk that he could endanger himself by
not properly taking his medications. However, as explained above, the
psychologist did not specify what danger would ensue from R.D.S’s improperly
managing his medications, and could not identify any indication that R.D.S. had
been or indicated he would be noncompliant with taking his medications.

¶21 In sum, the County fails to show that it presented sufficient evidence
to meet its burden of proving, by clear and convincing evidence, that the
dangerousness standard in WIS. STAT. § 55.08(1)(c) was met.

CONCLUSION

¶22 For the reasons stated, the August 2021 order for protective
placement is reversed, and this case is remanded to the circuit court with directions
to enter an order allowing R.D.S. to live with his parents, with protective services.

By the Court.—Order reversed and cause remanded with directions.

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No. 2022AP229

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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