Wood County v. J. A. B.

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 21, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP220 Cir. Ct. No. 2012GN39

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE PROTECTIVE PLACEMENT OF J.A.B.:
WOOD COUNTY,

PETITIONER-RESPONDENT,

V.

J.A.B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Wood County:
NICHOLAS J. BRAZEAU, JR., Judge. Reversed.

¶1 KLOPPENBURG, P.J.1 J.A.B. appeals an order for her protective
placement pursuant to WIS. STAT. ch. 55. J.A.B. argues that Wood County failed

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP220

to prove, by clear and convincing evidence, one of the four standards that must be
met to order protective placement: that she was so totally incapable of providing
for her own care or custody as to create a substantial risk of serious harm to herself
or others, as required by WIS. STAT. § 55.08(1)(c). I agree. Accordingly, I reverse
the order for protective placement.2

BACKGROUND

¶2 In March 2024, the County filed a petition for protective placement
of J.A.B.3 This petition followed the termination, in 2022, of J.A.B.’s earlier
protective placement, which was first ordered in 2012. The County subsequently
filed a psychologist’s report prepared by Dr. Nicholas Starr, who evaluated J.A.B.
over the telephone in April 2024. In response to the County’s filings, J.A.B.
sought an independent psychological evaluation from Dr. Steven Benson. Benson
evaluated J.A.B. in person in May 2024 and filed a psychologist’s report with the
circuit court.

¶3 The circuit court held a hearing on the petition in June 2024. The
parties stipulated to the admission of both psychologists’ reports and waived their
right to cross-examine the psychologists. The parties also stipulated to two of the
four standards that must be met to order protective placement: “the guardianship

2
J.A.B. also argues that the County failed to prove, by clear and convincing evidence,
another of the four standards that must be met to order protective placement: that she had a
primary need for residential care and custody, as required by WIS. STAT. § 55.08(1)(a). I do not
address this argument because of my dispositive conclusion that the County failed to prove, by
clear and convincing evidence, that she was so totally incapable of providing for her own care or
custody as to create a substantial risk of serious harm to herself or others, as required by
§ 55.08(1)(c).
3
The parties stipulated to the continuation of the guardianship of person and estate.

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No. 2025AP220

requirement,” apparently referring to WIS. STAT. § 55.08(1)(b), and that J.A.B. had
a disability that is permanent or likely to be permanent, as required by
§ 55.08(1)(d).4 As to the two remaining standards that must be met to order
protective placement, § 55.08(1)(a) and (c), the court heard testimony from an
emergency mental health adult protective service coordinator for Wood County
Human Services and admitted Starr’s and Benson’s reports into evidence. I
present in the discussion below pertinent parts of the witness’s testimony and the
psychologists’ reports. After considering the parties’ arguments and the
recommendation of the guardian ad litem (GAL), the court granted the petition for
protective placement of J.A.B.

4
WISCONSIN STAT. § 55.08(1)(b) requires that, to order a protective placement, a circuit
court find by clear and convincing evidence that “[t]he 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.” In the
circuit court, both J.A.B. and the County stipulated that J.A.B. met “the guardianship
requirement,” and, on appeal, the County goes further and asserts that J.A.B. “was under a
guardianship of her person and estate.” However, guardianship of an adult is not a requirement
for protective placement; a court must instead find that the adult “has been determined to be
incompetent by a circuit court.” See § 55.08(1)(b). J.A.B. does not argue that she did not meet
the applicable standard in § 55.08(1)(b)—that she “has been determined to be incompetent by a
circuit court”—and, accordingly, I do not address the County’s assertion regarding guardianship
any further.

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No. 2025AP220

¶4 J.A.B. appeals.5

DISCUSSION

¶5 This court’s review of a protective placement order presents a mixed
question of law and fact. Walworth County v. Therese B., 2003 WI App 223,
¶21, 267 Wis. 2d 310, 671 N.W.2d 377. “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 (Ct. App. 1998) (citing WIS. STAT. § 805.17(2)). The issue of
whether the evidence satisfies the legal standard for protective placement is a
question of law that the appellate court reviews de novo. Id. at 23.

¶6 “‘Protective placement’ means a placement that is made to provide
for the care and custody of an individual.” WIS. STAT. § 55.01(6). A circuit court
may order the protective placement of an individual if the court finds, by clear and
convincing evidence, that the individual meets all four standards set forth in WIS.
STAT. § 55.08(1):

(a) The individual has a primary need for residential
care and custody.

5
Given the passage of time that is significant for the nature of the case, I now briefly
explain the timeline since the circuit court issued the protective placement order on June 25,
2024. J.A.B. timely filed a notice of intent to pursue postdisposition relief from that order and,
after receiving an extension of time in which to file a motion or a notice of appeal, filed the notice
of appeal in January 2025. After the parties completed their appellate briefing, the appeal was
submitted to this court in June 2025, approximately one year after entry of the protective
placement order, which was around the time that J.A.B.’s protective placement order would have
been subject to the legally required annual review. See State ex rel. Watts v. Combined Cmty.
Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 84-85, 362 N.W.2d 104 (1985) (requiring an
annual review of the necessity of a protective placement and, if necessary, a “full due process
hearing” on the need for continued protective placement). Neither party, after being notified that
this appeal was submitted to this court, informed this court that this appeal may be moot or
otherwise affected by any such annual review. Accordingly, I address the appeal as submitted.

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No. 2025AP220

(b) The individual … 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.

§ 55.08(1); WIS. STAT. § 55.10(4)(d) (setting standard of proof).

¶7 As stated, the dispositive issue on appeal is whether the County
proved, by clear and convincing evidence, that as a result of her disability, J.A.B.
was so totally incapable of providing for her own care or custody that she posed a
substantial risk of serious harm to herself or others, as required by WIS. STAT.
§ 55.08(1)(c). Under this standard, “[t]he risk of harm must be substantial. Mere
speculation as to difficulties [that an individual] may encounter is not sufficient.
Specific harm must be foreseeable to fulfill this requirement.” Zander v. County
of Eau Claire, 87 Wis. 2d 503, 514-15, 275 N.W.2d 143 (Ct. App. 1979). “The
harm envisioned … must be directly foreseeable from the overt acts or omissions
of the individual.” K.N.K. v. Buhler, 139 Wis. 2d 190, 202, 407 N.W.2d 281 (Ct.
App. 1987). Moreover, “the foreseeable harm must be serious.… [M]inor
accidents, injuries and illness are not sufficient to satisfy this requirement.”
Zander, 87 Wis. 2d at 515.

Additional Background

¶8 I present here pertinent parts of the testimony offered at the hearing,
the psychologists’ reports, the GAL’s recommendation, and the circuit court’s
decision and reasoning.

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¶9 At the hearing in June 2024, the County’s sole witness was Erin
Knetter, an emergency mental health adult protective service coordinator for
Wood County Human Services. Knetter testified as follows. Knetter had
“provid[ed] social work-type services to [J.A.B.]” during J.A.B.’s previous
protective placement and had filed the petition for the reinstatement of J.A.B.’s
protective placement at issue in this case. Knetter had not worked with J.A.B. for
the two years immediately preceding the hearing. During those two years,
“[a]ccording to [J.A.B.’s] guardian, [J.A.B.] continue[d] to drink alcohol.” On
one occasion, J.A.B. became “highly intoxicated” at her neighbor’s residence and
“contacted the maintenance man to help her use a walker to get back to her
apartment because she was so incapable of walking.”

¶10 J.A.B. “continue[d] to have contact with law enforcement in regards
to alcohol use as well as her inability to prevent herself from abuse from others.”
Within the last year, law enforcement transported J.A.B. to a medical center “to
determine if she needed a [WIS. STAT. §] 51.45,” because “law enforcement felt
that she was so unsafe.”6 On this occasion, “[o]nce she was able to sober up, she
was able to be sent home to care for herself.” J.A.B. “ha[d] two neighbors that
f[ou]ght with her,” and she “ha[d] been observed to have multiple
lacerations[ and] bruising,” but she was not able “to identify if someone had hurt
her or to prevent it from happening again.”

¶11 In the two years since the termination of J.A.B.’s protective
placement, J.A.B. was evicted from two separate residences due to her alcohol use

6
Under WIS. STAT. § 51.45, an intoxicated person who meets certain standards may
apply for voluntary treatment for alcoholism, be committed for emergency treatment, or be
involuntarily committed for treatment. See § 51.45(10)-(13).

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No. 2025AP220

“and bed bugs,” most recently in August 2023. J.A.B. had not received a notice of
eviction from her current apartment, but she had received a “notice of …
infractions that can lead to … eviction” from her current apartment, sometime in
February or March 2024.

¶12 Knetter opined that J.A.B. required in-home services but that
protective services were insufficient because J.A.B. “tend[ed] to not allow people
into her home” and had a history of becoming “belligerent” with service providers
due to her alcohol use. Knetter further testified: “[J.A.B.] ha[d] no ability to do
anything independent, to clean her home or to stop her alcohol use, so she gets
evicted,” and “if [J.A.B. were] evicted, we [would] have no place to put her
because of how many evictions she ha[d] on her record.” Knetter opined that an
adult family home would be the least restrictive placement for J.A.B. that would
ensure her needs were met.

¶13 On cross-examination, Knetter testified as follows. Knetter had not
visited J.A.B. at her current residence and was unaware of the present condition of
J.A.B.’s apartment. In addition, J.A.B. was actively receiving services from
Lutheran Social Services and, to Knetter’s knowledge, was attending all
appointments and accepting all in-home services.

¶14 Following Knetter’s testimony, the circuit court considered the
psychologist reports completed by Starr and Benson. Starr based his report on his
review of treatment records and prior reports, discussions with J.A.B.’s case
worker, and a ten-minute telephone conversation with J.A.B.7 Starr’s report

7
During Starr’s short call with J.A.B., she refused to participate in a psychiatric
evaluation. Starr reported that J.A.B. sounded intoxicated during the call.

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No. 2025AP220

contained the following information. J.A.B. had a significant history of alcohol
abuse and schizoaffective disorder “such that she [was] not able to properly care
for herself.” J.A.B. “ha[d] been unable to maintain a safe living environment in
her home and [was] facing her third eviction since 2022.” J.A.B. “continue[d] to
struggle with basic functioning to include eating, sleep and hygiene” and “has had
numerous law enforcement contacts for noise complaints and physical altercations
with her neighbors.” J.A.B. did not refuse or resist her prescribed treatment and
medications.

¶15 Starr opined that J.A.B. required protective placement, explaining
that J.A.B. “[was] at significant risk and [was] vulnerable.” Starr opined that a
less restrictive measure was not appropriate for J.A.B. because “[J.A.B. was]
uncooperative and ha[d] [a] history of non-compliance,” and “ha[d] been unable to
remain safe and sober outside of a facility.”

¶16 Benson based his report on an in-person diagnostic clinical interview
and neuropsychological testing of J.A.B. as well as a review of J.A.B.’s treatment
records since she was first found in need of protective placement in 2012. Benson
diagnosed J.A.B. as suffering from, among other incapacities, serious mental
disorders and neurocognitive deficits due to multiple etiologies, including chronic
alcohol abuse. Benson’s report also contained the following information.
“[J.A.B.] reportedly ha[d] been abstinent from alcohol since March 30, 2024” but
had a history of “periodic relapses with respect to alcohol abuse.” J.A.B.
“dress[ed] herself without help; perform[ed] toileting tasks without assistance;
use[d] a cell phone for dialing a few well-known numbers; prepare[d] her own
meals; and adequate[ly] complet[ed] … laundry.” J.A.B. performed some
housekeeping tasks but relied on Lutheran Social Services for assistance with
housekeeping and shopping. J.A.B. was compliant with prescribed medications,

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No. 2025AP220

but she had previously been noncompliant with recommendations for
psychotherapy and AODA (Alcohol and Other Drug Abuse) treatment. Benson
reported that J.A.B. had “impaired social judgment, extremely limited insight, and
significant deficits of executive functions,” and that she “should be considered a
vulnerable adult, who is at risk for manipulation and exploitation by others” as
well as for “physical harm and resumption of alcohol abuse.” Benson opined that
these risks warranted the need for guardianship for J.A.B. but not for protective
placement.

¶17 Benson opined that J.A.B. did not require protective placement
because she “ha[d] demonstrated the ability to live independently with the support
of her current guardian and occasional assistance from Lutheran Social Services.”
Benson recommended referring J.A.B. to the Community Comprehensive Services
(CCS) program at Wood County Human Services so that she could receive further
assistance in managing her daily activities and in monitoring her alcohol abuse.
Benson also recommended AODA treatment.

¶18 The GAL agreed with the County’s recommendation for protective
placement and opined that, without protective placement, J.A.B. “[was] not going
to address her alcohol needs, and … she need[ed] to address those before the
damage becomes more permanent.”

¶19 The circuit court stated that Benson’s report was “not internally
consistent” and concluded that J.A.B. met the criteria for protective placement
“based on serious and persistent mental illness and other like [in]capacities,
including her alcohol use, which [was] a huge problem for her, and w[ould] …
become [a] permanent, probably vegetative disability in her long term if that’s not
addressed.” The court determined that the least restrictive placement consistent

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No. 2025AP220

with J.A.B.’s needs was an unlocked adult family home. The court concluded:
“[J.A.B.] continue[d] to drink. She continue[d] to fight with neighbors. She
need[ed] help getting around her apartment. She [did not] allow people in the
apartment. There are a lot of reasons I think this is appropriate for her.”

Analysis

¶20 The evidence presented at the hearing is insufficient to show that
J.A.B., because of her disability, was “so totally incapable of providing for … her
own care or custody as to create a substantial risk of serious harm to … herself or
others,” as required by WIS. STAT. § 55.08(1)(c). As stated, this standard requires
that the County identify a specific, foreseeable, and serious harm, and that the
County show that the risk of harm was substantial. Zander, 87 Wis. 2d at 514-15.
The circuit court, implicitly crediting Starr’s report and Knetter’s testimony, found
that J.A.B. had a history of refusing to allow people into her apartment, fought
with her neighbors, needed help getting around her apartment, and continued to
abuse alcohol. In addition, the court found that J.A.B.’s “alcohol use … [was] a
huge problem for her, and w[ould] … become [a] permanent, probably vegetative
disability in her long term if that’s not addressed.” As a matter of law, these
factual findings are not sufficient to show that J.A.B. was unable to care for
herself so as to create a substantial risk of serious harm to herself or others
because, as I now explain, they do not identify a specific, foreseeable, and serious
harm and show that the risk of harm was substantial.

¶21 Refusing to allow people into apartment. In his report, Starr stated
that J.A.B. “[was] uncooperative and [had a] history of noncompliance,” and
Knetter testified that, despite J.A.B.’s history of not allowing people into her home
and being “belligerent” with service providers, J.A.B. was currently accepting in-

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home services as well as attending all of her appointments. Assuming that the
circuit court gave more weight to Starr’s report than to Knetter’s testimony, and
accepting this finding regarding J.A.B.’s unwillingness to accept in-home services
as not clearly erroneous, it is not sufficient to establish a substantial risk of serious
harm. Specifically, Starr did not report, and Knetter did not testify, as to what
specific harm would result from J.A.B.’s refusal to allow people into her home.

¶22 Fighting with neighbors. Starr’s report also stated that J.A.B. “has
had numerous law enforcement contacts for noise complaints and physical
altercations with her neighbors.” Knetter testified to the appearance of bruises and
lacerations on J.A.B. that J.A.B. could not explain. But again, neither Starr nor
Knetter explained how J.A.B.’s fights with her neighbors put her or others at a
substantial risk of serious harm. “[M]inor accidents, injuries and illness are not
sufficient to satisfy” the standard set forth in WIS. STAT. § 55.08(1)(c), and there is
no evidence in the record showing that any bruising or lacerations were more than
minor. See Zander, 87 Wis. 2d at 515.

¶23 Needing help getting around apartment. The circuit court’s finding
that J.A.B. “need[ed] help getting around her apartment” is supported by Knetter’s
testimony that J.A.B. “ha[d] no ability to do anything independent, to clean her
home” or to move apartments without help from her guardian, and Benson’s
statement in his report that “while [J.A.B.] perform[ed] some housekeeping tasks,
she relie[d] upon assistance from Lutheran Social Services.” However, Knetter
and Benson did not explain how requiring assistance to clean one’s apartment and
complete housekeeping tasks, or requiring assistance to move homes, led to a
substantial risk of serious harm. Starr reported that J.A.B. “ha[d] been unable to
maintain a safe living environment in her home” and “[was] at significant risk and
[was] vulnerable,” but these statements lack the necessary detail to meet the

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protective placement standard set forth in WIS. STAT. § 55.08(1)(c), i.e., specific
“overt acts or acts of omission” that J.A.B. had engaged in that created a
substantial risk of serious harm. See WIS. STAT. § 55.08(1)(c); K.N.K., 139
Wis. 2d at 202 (“The harm envisioned … must be directly foreseeable from the
overt acts or omissions of the individual.”). Starr’s vague assertions allow for
speculation regarding the risk of harm that would result without J.A.B.’s
protective placement, but “[m]ere speculation as to difficulties [J.A.B.] may
encounter is not sufficient.” See Zander, 87 Wis. 2d at 515.

¶24 Continuing to drink alcohol. Much of the evidence speaks to
J.A.B.’s problems with alcohol. Indeed, J.A.B.’s alcohol abuse appeared to be the
primary concern of Knetter and the GAL as well as the motivating factor for the
circuit court’s decision. The court’s finding that J.A.B.’s alcohol use would lead
to a “permanent, probable vegetative disability in her long term” is speculative and
not supported by the evidence. The record contains no evidence of specific,
foreseeable harm that would result from J.A.B.’s abuse of alcohol. Contra Wood
County v. P.J.L., No. 2024AP2098-FT, unpublished slip op., ¶29 (WI App Jan. 9,
2025) (finding substantial risk of serious harm where consumption of alcohol
along with medications “could be lethal”); Waukesha Cnty. DHHS v. Stanley
W.F., No. 2009AP985-FT, unpublished slip op., ¶11 (WI App Sept. 9, 2009)
(finding substantial risk of serious harm where “[t]he predicted consequences
associated with alcohol use … include[d] a probability of death or a comatose
state”).8 Knetter testified that on one occasion law enforcement transported J.A.B.
to a medical center because “[they] felt that she was so unsafe,” but confirmed that

8
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored unpublished
opinions issued after July 1, 2009, for their persuasive value).

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No. 2025AP220

J.A.B. “was able to be sent home to care for herself” once she regained sobriety.
Knetter also testified that J.A.B. was able to seek help when she was too
intoxicated to independently travel to her apartment. The GAL opined that J.A.B.
needed to address her problem with alcohol before it caused permanent damage,
but neither he nor Knetter explained what specific, foreseeable harm would result
from J.A.B.’s alcohol abuse. Nor did Starr’s report describe what specific
symptoms or behaviors occurred or would recur if J.A.B. continued to drink
alcohol.

¶25 Additional information. Although not specifically credited by the
circuit court, I briefly address the following evidence presented at the hearing and
explain why it is not sufficient to meet the substantial risk of serious harm
standard set forth in WIS. STAT. § 55.08(1)(c). First, Starr’s report supported
Knetter’s testimony that J.A.B. was at risk of being evicted from her current
residence. However, neither Starr nor Knetter discussed what specific,
foreseeable, and serious harm would result from another eviction, with Knetter
testifying only that a third eviction would make it harder for J.A.B. to obtain
housing. Difficulty obtaining housing is not a substantial harm sufficient to meet
the standard in § 55.08(1)(c). Second, Starr reported that J.A.B. “continue[d] to
struggle with basic functioning to include eating, sleep and hygiene.” Again, these
vague assertions do not evidence a substantial risk of serious harm to J.A.B. or
others. Third, Benson reported that J.A.B. had “impaired social judgment,
extremely limited insight, and significant deficits of executive functions,” and
opined that guardianship was warranted because J.A.B. was “a vulnerable adult,
who is at risk for manipulation and exploitation by others.” These reports are
concerning, but they are vague and do not describe “overt acts or acts of omission”
that “create[d] a substantial risk of serious harm” to J.A.B. or others so as to

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No. 2025AP220

support protective placement. See § 55.08(1)(c); Zander, 87 Wis. 2d at 515
(“Specific harm must be foreseeable to fulfill this requirement.”); Wood County v.
Zebulon K., Nos. 2011AP2387, 2011AP2394, unpublished slip op., ¶¶15-16 (WI
App Feb. 7, 2013) (concluding evidence that individuals were “unable to prevent
financial exploitation” and were “easy to manipulate” failed to meet the standard
for a substantial risk of serious harm).

¶26 The County argues that J.A.B. “is essentially asking [this court] to
reweigh the evidence as if the [c]ourt of [a]ppeals were the [c]ircuit [c]ourt.” This
argument misses the mark. As explained above, I independently conclude that the
evidence credited by the court, considered as a whole, was not sufficient to satisfy
the standard for protective placement set forth in WIS. STAT. § 55.08(1)(c). That is
the duty of this court. See Coston, 222 Wis. 2d at 23 (appellate court reviews de
novo whether the evidence supports protective placement).

¶27 In sum, the County did not show, by clear and convincing evidence,
that J.A.B. would, if not protectively placed, be so unable to care for herself as to
create a substantial risk of serious harm to herself or others.

CONCLUSION

¶28 For the reasons stated, I reverse the order for J.A.B.’s protective
placement.

By the Court.—Order reversed.

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

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