J. C. v. R. 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.
February 16, 2023
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. 2022AP1215 Cir. Ct. No. 2021GN120

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE CONDITION OF R. S.:

J. C.,

PETITIONER-RESPONDENT,

V.

R. S.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Reversed.
No. 2022AP1215

¶1 FITZPATRICK, J.1 R.S.2 appeals an order of the Dane County
Circuit Court that granted a petition for a protective placement. R.S. contends that
the petitioner failed to establish each element set forth in WIS. STAT. § 55.08(1)
and, as a result, the circuit court lacked a basis to order the protective placement.
For the reasons discussed below, I agree with R.S. and reverse the order of the
circuit court.

¶2 The careful circuit judge was placed in a difficult position. At the
evidentiary hearing on the protective placement petition, it was established that
R.S. requires residential care and custody, that R.S. is incapable of providing for
her own care, and, as such, there is a substantial risk of serious harm to R.S. It
was also shown that R.S.’s family is no longer able to care for her, in spite of her
family’s heartfelt and significant efforts. However, petitioner failed to establish
by admissible testimony that R.S. suffers from a “degenerative brain disorder” or
“other like incapacit[y],” and that condition is permanent or likely to be
permanent. See WIS. STAT. § 55.08(1)(c), (d). The statutory elements that protect
the due process rights of R.S. cannot be overlooked. “Although protecting people
from harm is important, so is due process.” Dodge Cnty. v. Ryan E.M., 2002 WI
App 71, ¶11, 252 Wis. 2d 490, 642 N.W.2d 592.

BACKGROUND

¶3 There is no dispute as to the following material facts.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Consistent with WIS. STAT. § 809.19(1)(g), this opinion refers to the respondent-
appellant by her initials, and this opinion refers to R.S.’s children but does not name those
persons.

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¶4 In June 2021, R.S.’s daughter, proceeding pro se, petitioned the
court for a guardianship of R.S.’s person. With the petition was a report written
by Abby Allen,3 a physician’s assistant.4 In July 2021, the daughter, still pro se,
filed a petition for protective placement of R.S. Michelle Allaby, a certified social
worker for Dane County, filed a comprehensive evaluation regarding that petition
as ordered by the circuit court pursuant to WIS. STAT. § 55.11(1).

¶5 In August 2021, a hearing was held before a court commissioner
regarding the petition for the guardianship of R.S.’s person. The guardian ad litem
for R.S. met with her and determined that R.S. did not contest the petition for a
guardianship. The court commissioner ordered that R.S.’s son is the guardian of
her person.

¶6 In October 2021, the circuit court held an evidentiary hearing on the
request for protective placement of R.S. By that time, the daughter had retained
counsel, and counsel prior to the hearing filed an amended petition for protective
placement. R.S.’s daughter and social worker Allaby were the only witnesses at
the hearing. At the close of testimony, counsel for R.S. requested dismissal of the
petition because no medical or psychological professional testified at the hearing
and, as a result, the daughter failed to prove the necessary elements that R.S. has a
degenerative brain disorder or other like incapacity that is permanent or likely to
be permanent. In response, R.S.’s daughter argued that those disputed elements

3
The handwriting on the report is often difficult to decipher, but the signature refers to
Allen as a “P.A.” R.S.’s briefing in this court refers to Allen as a “physician’s assistant,” and that
is not disputed by R.S’s daughter.
4
There was no request for a guardianship of the estate because that was previously
resolved by R.S. through an advance planning document.

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No. 2022AP1215

were subsumed within findings made at the time the court commissioner ordered a
guardianship of R.S.’s person.

¶7 The circuit court denied R.S.’s motion and determined that there was
clear and convincing evidence of each of the required elements. The court granted
the petition and ordered a protective placement for R.S. in a community-based
residential facility. R.S. appeals the circuit court’s order granting the protective
placement. R.S. does not appeal the guardianship order. However, aspects of the
guardianship petition and hearing make a difference to my analysis, and I will
discuss those later.

¶8 Other material facts will be mentioned in the following discussion.

DISCUSSION

¶9 This appeal concerns the construction and application of WIS. STAT.
ch. 55 which governs the state’s protective system for adults at risk. Questions of
statutory construction and whether the circuit court correctly applied the
applicable statutes to the facts are subject to de novo review. Jackson Cnty. Dept.
of Health and Human Servs. v. Susan H., 2010 WI App 82, ¶10, 326 Wis. 2d
246, 785 N.W. 677; Kindcare, Inc. v. Judith G., 2002 WI App 36, ¶9, 250 Wis.
2d 817, 640 N.W.2d 839. The circuit court’s factual findings will not be
overturned by this court unless those are clearly erroneous. Coston v. Joseph P.,
222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998).

¶10 WISCONSIN STAT. ch. 55 authorizes protective placements in which
an individual is placed in a residential facility for care. See WIS. STAT. § 55.01(6),
(6m), (6r). WISCONSIN STAT. §§ 55.08(1) and 55.10(4)(d) require a circuit court
to determine that four elements are established by clear and convincing evidence

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No. 2022AP1215

before ordering a protective placement. The individual may be placed in
protective placement if he or she: (1) has “a primary need for residential care and
custody”; (2) is “an adult who has been determined to be incompetent by a circuit
court”; (3) 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” because of a
“degenerative brain disorder … or other like incapacities”; and (4) has “a
disability that is permanent or likely to be permanent.” Sec. 55.08(1)(a)-(d).

¶11 A “huge liberty interest” is at risk in a protective placement
proceeding because it is “indefinite in duration and thereby [is] tantamount to a
life sentence to a nursing home or other custodial setting.” Jefferson Cnty. v.
Joseph S., 2010 WI App 160, ¶13, 330 Wis. 2d 737, 795 N.W.2d 450 (quoting
Walworth Cnty. v. Therese B., 2003 WI App 223, ¶12, 267 Wis. 2d 310, 671
N.W.2d 377). Those liberty interests, and an individual’s due process rights, are
recognized in the “Declaration of policy” in WIS. STAT. § 55.001 which states in
part:

This chapter is designed to establish those protective
services and protective placements, to assure their
availability to all individuals when in need of them, and to
place the least possible restriction on personal liberty and
exercise of constitutional rights consistent with due process
and protection from abuse, financial exploitation, neglect,
and self-neglect.

Sec. 55.001.

¶12 Because of the liberty interest a person has in living where and under
what conditions they choose, the legislature has required procedural protections
enunciated in WIS. STAT. ch. 55 to protect due process rights of persons potentially
subject to a protective placement. Joseph S., 330 Wis. 2d 737, ¶13; Kindcare,
Inc., 250 Wis. 2d 817, ¶12. Accordingly, the parties do not have the option of

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No. 2022AP1215

avoiding the requirements of ch. 55 on the ground of efficiency. See Dane Cnty.
v. Kelly M., 2011 WI App 69, ¶30, 333 Wis. 2d 719, 798 N.W.2d 697.

¶13 As noted, the first element which must be shown is that R.S. has “a
primary need for residential care and custody.” WIS. STAT. § 55.08(1)(a). In the
circuit court, and in this appeal, R.S. does not dispute that this element was
established by the evidence at the evidentiary hearing. As was also noted earlier,
the second element is that R.S. is “an adult who has been determined to be
incompetent by a circuit court.” Sec. 55.08(1)(b). R.S. concedes that this element
has been satisfied because a determination of incompetency is a requisite of the
order in the guardianship. See WIS. STAT. § 54.10(3)(a).

¶14 As applicable here, the third element mandates that the evidence
establish that R.S. is “so totally incapable of providing for … her own care or
custody as to create a substantial risk of serious harm to … herself” because of a
“degenerative brain disorder … or other like incapacit[y].” WIS. STAT.
§ 55.08(1)(c). At this point, I will consider whether R.S. was incapable of
providing for her own care so as to create a substantial risk of serious harm to
herself. Whether she suffers from degenerative brain disorder or other like
incapacity, and whether that condition is permanent or likely to become so (the
fourth element), will be discussed later in this opinion.

¶15 R.S. argues that the evidence did not prove that there was a
substantial risk of serious harm to herself because she cannot care for herself.
Rather, R.S. asserts that the evidence showed only that she needs some assistance
with daily life. The record and the circuit court’s findings of fact, to which I defer,
establish otherwise.

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No. 2022AP1215

¶16 The testimony of R.S.’s daughter and the social worker proved the
following. R.S. lived with her daughter at the time of the hearing and previously
resided with her son. R.S. requires around-the-clock supervision and care because
of her unsafe behaviors and memory impairment. Among other things, R.S.
requires assistance taking her prescribed medication and with meal preparation.
Further concerns are that: R.S. wanders out of her daughter’s house which is near
a busy road; R.S. undresses and urinates outside the house; and R.S. leaves
burning butts of her cigarettes on the carpet in the house and on her clothing.
R.S.’s daughter encourages R.S. to bathe, but R.S. often refuses to do so for long
stretches of time. Because of her unsteady balance, R.S. is at a risk of falls and
injury from falls. The problem is made more acute because R.S. sometimes loses
consciousness without warning.

¶17 The circuit court found credible the testimony of the social worker
and R.S.’s daughter and made findings of fact consistent with their testimony.
From that, the circuit court concluded that R.S. is incapable of providing for her
own care, and that creates a substantial risk of serious harm to herself. The circuit
court, based on those same findings of fact, concluded that a community-based
residential facility was the least restrictive placement for R.S. under these
circumstances. On appeal, R.S. presents no valid basis to overturn those findings
of fact made by the circuit court.

¶18 As part of her argument, R.S. asserts that a community-based
residential facility is not the least restrictive placement for her. Instead, she
contends that she should be back at the home of either her daughter or son and,
with that, she simply needs to receive protective services from a government
agency. This assertion by R.S. is belied by the substantial efforts of her family to
care for her in their own homes as R.S.’s abilities and cognition have further

7
No. 2022AP1215

deteriorated. The evidence was irrefutable that her family has tried to keep R.S. in
their homes and, as stated by her daughter, they can not “keep going like this.”
R.S.’s daughter also testified that R.S. “needs more care than I can give her,” and
that she worries about her mother “[e]very[ ]day.” To the extent that R.S. is
arguing that her family should continue to keep up the very difficult job of
personally caring for her 24 hours a day, 7 days a week, 365 days a year, and hope
that protective services in the home will be enough, that argument was rejected by
the circuit court for good reason. I find no basis in the record for this assertion
from R.S.

¶19 The remaining issues are whether the daughter proved that R.S.
suffers from a degenerative brain disorder or other like incapacity (part of element
3) and whether that condition is permanent or likely to be permanent (element 4).
The circuit court concluded that these elements were met, and I will review those
remaining disputed issues together.

¶20 The social worker testified at the protective placement hearing that
she saw in R.S.’s medical records that R.S. suffers from “dementia” that is
“permanent.” R.S.’s daughter does not rely on that testimony to establish that the
third and fourth elements were met. In fact, the daughter does not rely on any
evidence from the protective placement hearing to support her position. Instead,
she asserts that R.S.’s failure to dispute the petition for the guardianship of her
person is tantamount to a concession that R.S. has a degenerative brain disorder
that is permanent. That assertion fails on many levels.

¶21 First, WIS. STAT. § 54.48 makes clear that a grant of a guardianship
is not grounds for an involuntary protective placement: “A finding of
incompetency and appointment of a guardian under this chapter is not grounds for

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No. 2022AP1215

involuntary protective placement or the provision of protective services. A
protective placement and the provision of protective services may be made only in
accordance with [WIS. STAT.] ch. 55.” Sec. 54.48.

¶22 Second, as R.S. points out, there is no basis in the record from the
guardianship hearing to support the daughter’s assertion.5 That is so because there
is no transcript from the guardianship hearing. R.S. requested a transcript for this
appeal. However, there is no dispute that, when a court reporter tried to access
what should have been a recording of the guardianship hearing, none was
available. Usually, we hold the failure to produce a transcript against an appellant.
See Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App.
1993) (“[W]hen an appellate record is incomplete in connection with an issue
raised by the appellant, we must assume that the missing material supports the trial
court’s ruling.”). In these circumstances, I refuse to hold that fact against R.S.
She requested the transcript and, through no fault of her own, no transcript can be
prepared. Rather, this very concerning situation has arisen because of the
incompetence of the person who was responsible for the recording of R.S.’s
guardianship hearing.

¶23 Third, the guardianship should not have been granted by the court
commissioner. My discussion of this point goes to the daughter’s argument on
these disputed issues and will make a difference if another petition for a protective
placement of R.S. is filed. As noted earlier, one element for a protective
placement is that a circuit court has previously determined that R.S. is

5
I have every confidence that the guardian ad litem took care to explain to R.S. the
rights she was waiving by agreeing to the guardianship, but that does not control these disputed
issues.

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No. 2022AP1215

“incompetent.” See WIS. STAT. § 55.08(1)(b). Whether R.S. is incompetent was
decided in the guardianship proceeding. See WIS. STAT. § 54.10(3)(a). But, there
is a shelf life (so to speak) on that determination of incompetence because WIS.
STAT. § 55.075(3) states in pertinent part: “If the individual is adjudicated
incompetent in this state more than 12 months before the filing of an application
for protective placement … on … her behalf, the court shall review the finding of
incompetency.” Sec. 55.075(3). As a result, at the next protective placement
hearing, R.S.’s incompetence will be revisited.

¶24 At any rate, the following is the problem with the guardianship
granted by the court commissioner. In making a determination regarding a
guardianship of the person, a court shall consider “[t]he medical or psychological
report provided under [WIS. STAT. §] 54.36(1).” WIS. STAT. § 54.10(3)(c)2. That
report, pursuant to WIS. STAT. § 54.36(1), must meet these standards:

Whenever it is proposed to appoint a guardian on
the ground that a proposed ward allegedly has
incompetency …, a physician or psychologist, or both,
shall examine the proposed ward and furnish a written
report stating the physician’s or psychologist’s professional
opinion regarding the presence and likely duration of any
medical or other condition causing the proposed ward to
have incapacity.

Sec. 54.36(1). To confirm the point, in R.S. v. Milwaukee Cnty., 162 Wis. 2d 197,
470 N.W.2d 260 (1991),6 our supreme court stated:

We do not question a circuit court’s reliance on a licensed
professional’s written report under [WIS. STAT. §] 880.33

6
In quite a coincidence, the person subject to the guardianship in that opinion from the
Wisconsin Supreme Court has the same initials as the respondent-appellant in this matter. There
is no basis to conclude that the R.S. discussed in this opinion is the same R.S. discussed in our
supreme court’s opinion.

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No. 2022AP1215

[(1987-88) (now § 54.36(1))] when the proposed ward does
not object to the appointment of a guardian or does not
object to the report being admitted as evidence. The
legislature probably imposed the requirement of the report
to aid the court and to protect proposed wards against
improvident appointment of guardians based only on the
testimony of possibly overzealous or self-interested
petitioners. Comments of the Commissioners on Uniform
State Laws to Uniform Guardianship and Protective
Proceedings Act, 8A U.L.A. sec. 2-203, pp. 477-78 (1983).

R.S., 162 Wis. 2d at 207-08. Accordingly, even if the guardianship is uncontested,
there must be a report filed with the petition which meets the requirements of WIS.
STAT. § 54.36(1) in order to grant the guardianship. Id.

¶25 R.S. did not provide to the court for the guardianship hearing a
report that meets the requirements of WIS. STAT. § 54.36(1) because the report was
from a physician’s assistant rather than a physician or psychologist. Sec. 54.36(1).
The term “physician,” for purposes of WIS. STAT. ch. 54, is defined at WIS. STAT.
§ 54.01(24) (“‘Physician’ has the meaning given in [WIS. STAT. §] 448.01(5).”).
The definition of physician in § 448.01(5) does not include a physician’s assistant.
The term “psychologist” is defined, for purposes of ch. 54, at § 54.01(27)
(“‘Psychologist’ means a psychologist licensed under [WIS. STAT. §] 455.04(1) or
(2).”). The definition of psychologist in § 455.04(1) and (2) does not include a
physician’s assistant.7 For those reasons, the court commissioner should not have
granted the guardianship and, therefore, the result of the guardianship proceeding
regarding R.S. cannot be a determination that R.S. has a degenerative brain
disorder that is permanent or likely to be permanent.

7
On the form filed by the daughter regarding the guardianship, and signed by Abby
Allen the physician’s assistant, someone checked off a box which states: “I am a physician.”
That misrepresentation only makes matters worse.

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No. 2022AP1215

¶26 Fourth, it is correct that the report of the physician’s assistant filed
with the guardianship petition states that R.S. has a “degenerative brain disorder”
that is likely to be permanent. However, the substance of that report is hearsay
and is not admissible in evidence unless the physician’s assistant testifies and is
subject to cross-examination. In R.S., 162 Wis. 2d 197, our supreme court stated
that, in a contested guardianship, there must be testimony of the professional who
prepared the guardianship report under WIS. STAT. § 54.36(1):

Because we conclude that [WIS. STAT. § 54.36(1)]
does not provide that the hearsay written report of the
licensed professional is admissible in evidence in a
contested guardianship hearing without the in court
testimony of the professional who prepared the report, we
conclude that R.S.’s objection to admitting this hearsay
evidence must be sustained.

R.S., 162 Wis. 2d at 207. From that holding from our supreme court, it is
established that in-court testimony is required from the author of the report so the
person potentially subject to the guardianship can cross-examine the witness. Id.
at 210. The same principles must also apply to a contested protective placement
petition. Because the physician’s assistant did not testify at the protective
placement evidentiary hearing, her report cannot be the basis for a determination
that R.S. has a degenerative brain disorder or that such a condition is likely to be
permanent.

¶27 I now mention a related point because it may arise in another
protective placement petition regarding R.S. In her briefing in this court, R.S.
appears to twice assert that the physician or psychologist who signs the WIS. STAT.
§ 54.36(1) report for the guardianship must testify concerning protective
placement issues which concern medical or psychological opinions. If R.S.
intended to make that argument, it is incorrect. As stated in Therese B., a witness

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No. 2022AP1215

need only give a “medical or psychological opinion.” Therese B., 267 Wis. 2d
310, ¶13. Neither WIS. STAT. ch. 55 nor any other authorities require that such an
opinion must be from only a physician or psychologist.8 Instead, the circuit court
must determine whether opinions are admissible pursuant to WIS. STAT.
§ 907.02(1), and those may (or may not) be from a physician’s assistant based on
the record made at the hearing.

¶28 In sum, the petitioner failed to present admissible testimony on two
elements necessary for a protective placement order, and the petition fails for that
reason.

CONCLUSION

¶29 The circuit court’s order for protective placement is reversed, and
the petition shall be dismissed by the circuit court without prejudice.9

By the Court.—Order reversed.

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

8
When the legislature chooses to, it makes manifest its intention that an opinion from a
physician is required in a protective placement proceeding. See, e.g., WIS. STAT. § 55.14(4) (“A
petition under this section must include a written statement signed by a physician who has
personal knowledge of the individual that provides general clinical information regarding the
appropriate use of psychotropic medication for the individual’s condition and specific data that
indicates that the individual’s current condition necessitates the use of psychotropic
medication.”).
9
Nothing in this opinion curtails R.S.’s son or daughter from filing another petition for
protective placement for R.S. under WIS. STAT. ch. 55 with a request for temporary protective
placement pursuant to WIS. STAT. § 55.135, or for any other temporary relief that may be
available pursuant to ch. 55.

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