Racine County v. P.B.

2022 WI App 62
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP765-FT

Complete Title of Case:

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT
OF P.B.:

RACINE COUNTY,
PETITIONER-RESPONDENT,

V.

P. B.,
RESPONDENT-APPELLANT.

Opinion Filed: November 30, 2022
Submitted on Briefs: August 18, 2022
Oral Argument:

JUDGES: Gundrum, P.J., Neubauer and Lazar, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
brief of Colleen Marion. Assistant state public defender, Madison.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Sarah M. Kidd, assistant corporation counsel, Racine.
2022 WI App 62

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.
November 30, 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. 2022AP765-FT Cir. Ct. No. 2021GN58

STATE OF WISCONSIN IN COURT OF APPEALS

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF P.B.:

RACINE COUNTY,

PETITIONER-RESPONDENT,

V.

P.B.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County:
KRISTIN M. CAFFERTY, Judge. Vacated and cause remanded with directions.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

¶1 NEUBAUER, J. P.B. appeals from orders entered by the circuit
court appointing a guardian over her person and estate, directing her protective
placement in an unlocked facility, and denying her postdisposition motion to vacate
No. 2022AP765-FT

the guardianship and protective placement orders. P.B. argues that she was denied
her right to attend the guardianship and protective placement hearing in person. The
guardianship and protective placement statutes give certain rights to individuals
who are the subject of guardianship or protective placement petitions, including the
“right to be present” at the final hearing on the petitions. See WIS. STAT.
§§ 54.42(5), 55.10(4) (2019-20).1 The statutes also require a petitioner (here, the
County) to ensure that the individual who is the subject of a petition “attends” the
final hearing, unless the individual’s guardian ad litem waives the attendance. WIS.
STAT. §§ 54.44(4)(a), 55.10(2). For the reasons below, we conclude that these
statutes protect an individual’s right to be physically present in the room where the
hearing is held. Because the County failed to ensure that P.B. was afforded an
opportunity to attend her final hearing in person, and her guardian ad litem did not
waive her attendance, the circuit court lacked competency to rule on the petitions.
Thus, we vacate the orders and remand for a hearing that complies with the statutes.

BACKGROUND

¶2 On May 6, 2021, the County filed a petition for temporary and
permanent guardianship over P.B. under WIS. STAT. ch. 54 and a petition for
protective placement under WIS. STAT. ch. 55. The next day, after hearing testimony
from an investigator for the County and from P.B., the circuit court granted
temporary protective placement and appointed P.B.’s daughter as her temporary
guardian. The court also signed the County’s proposed order setting a final hearing
on the petitions for May 28, 2021, to be held via Zoom, a web-based conferencing

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2022AP765-FT

platform that is used for audio and video conferencing.2 The court later changed the
hearing date to June 2, 2021, and informed P.B. that a
guardian ad litem (GAL) had been appointed to represent her interests at the hearing.

¶3 The GAL prepared a report in connection with the final hearing, but
did not file it until after the hearing had concluded. In the report, the GAL advised
that he had informed P.B. of certain rights, including her right to “be present at the
hearing.” The report also indicated that P.B. intended to contest competency and
protective placement. The GAL further advised that, in his opinion, P.B. “can
attend the hearing in court.” The GAL did not check the box on the report waiving
P.B.’s attendance.

¶4 At the start of the June 2 hearing, P.B., her counsel, and several other
participants appeared by Zoom. P.B. was located at the facility where she was being
temporarily detained. Due to technical difficulties, P.B. lost her video connection
midway through the hearing and thereafter participated only by audio. P.B.’s
counsel participated from another location.

¶5 At the end of the hearing, the circuit court announced its decision.
Based upon the testimony and other evidence presented, the court determined that
P.B. was in need of guardianship and protective placement.

¶6 P.B. filed a postdisposition motion asking the circuit court to vacate
the guardianship and protective placement orders because she was not permitted to
attend the final hearing in person and did not consent to participate by video
conference. In support, P.B. cited WIS. STAT. §§ 54.44(4) and 55.10(2), which

2
Dave Johnson, What Is Zoom and How Does It Work?, LIFEWIRE: TECH FOR HUMANS
(Feb. 11, 2021), https://www.lifewire.com/what-is-zoom-and-how-does-it-work-4800476.

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No. 2022AP765-FT

instruct the party seeking guardianship or protective placement to ensure that the
individual for whom guardianship or protective placement is sought “attends the
hearing,” unless the individual’s guardian ad litem waives the attendance. See
§§ 54.44(4)(a), 55.10(2). In her motion, P.B. noted that her GAL had neither waived
her attendance nor provided reasons why she was unable to attend.

¶7 The County opposed P.B.’s motion, arguing that the circuit court had
authority to conduct the hearing by video or teleconference under WIS. STAT.
§§ 885.58 and 885.60. The County also relied on P.B.’s failure to object to
proceeding via Zoom pursuant to § 885.60(2)(d), despite knowing in advance that
the court planned to conduct the hearing using that technology.

¶8 The circuit court denied P.B.’s motion. The court determined that
P.B. had a right to attend the final hearing under the guardianship and protective
placement statutes, but noted that those “statutes do not use the term ‘physically
present.’” The court then turned to WIS. STAT. § 885.60(2)(a) and determined that
it does grant a right to be physically present, but concluded that P.B. had waived
that right by not objecting to attending via Zoom before the hearing.3

DISCUSSION

3
In her postdisposition motion, P.B. also argued that the many technical problems that
occurred during the hearing violated the statutory standards established for video conferencing, that
the circuit court impermissibly admitted hearsay evidence at the hearing, and that the County did
not prove by clear and convincing evidence that she needed a guardian or protective placement.
The court rejected these arguments, stating that P.B. was able to “meaningfully attend[] the
hearing” despite the technical difficulties and that no party objected to continuing the hearing via
Zoom when P.B.’s video connection was lost. The court further rejected P.B.’s argument that it
had improperly admitted hearsay evidence and affirmed its prior determination that the County had
presented sufficient evidence for the guardianship and protective placement. P.B. challenges each
of these aspects of the court’s ruling on appeal, but we decline to address them because our ruling
on the court’s lack of competency is sufficient to decide the appeal. See Sweet v. Berge, 113
Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one issue is dispositive of an appeal, we
need not discuss other issues).

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No. 2022AP765-FT

I. Applicable Legal Standards

¶9 This appeal requires us to interpret and apply provisions in the
guardianship and protective placement statutes, WIS. STAT. chs. 54 and 55, and
provisions in WIS. STAT. ch. 885 addressing the use of video conferencing in circuit
court proceedings. We review the circuit court’s interpretation of those statutes de
novo. Jefferson County v. Joseph S., 2010 WI App 160, ¶4, 330 Wis. 2d 737, 795
N.W.2d 450.

¶10 Our goal in interpreting a statute “is to determine what the statute
means so that it may be given its full, proper, and intended effect.” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d
110. We begin with the statutory language, which “is given its common, ordinary,
and accepted meaning.” Id., ¶45. Because context and “the structure of the statute
in which the operative language appears” are also important in determining
meaning, we interpret statutory language “in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46.

¶11 “The purposes underlying a statute are also useful in ascertaining a
statute’s meaning.” State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d
848. “Finally, when engaging in statutory interpretation, we are assisted by prior
decisions that have examined the relevant statutes.” Id.

II. WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) require physical
presence at a final hearing.

¶12 We begin our analysis with the statutes that address hearings in
guardianship and protective placement actions. As relevant here, WIS. STAT.
§ 54.44(1)(a) requires a circuit court to hear a petition for guardianship within ninety

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No. 2022AP765-FT

days after it is filed. The individual over whom guardianship is sought—referred to
in the statute as the “proposed ward or ward”—has certain statutory rights, including
“the right to be present” at the hearing and “the right to have any hearing regarding
the guardianship conducted in a location and manner that is accessible to the”
individual. WIS. STAT. § 54.42(5), (6). Section 54.44(4)(a) requires the petitioner
to make sure the individual “attends” the hearing, unless the attendance is waived:

(4) PRESENCE OF PROPOSED WARD OR WARD. (a) Adult
proposed ward or ward. The petitioner shall ensure that the
proposed ward or ward attends the hearing unless the
attendance is waived by the guardian ad litem. In
determining whether to waive attendance by the proposed
ward or ward, the guardian ad litem shall consider the ability
of the proposed ward or ward to understand and
meaningfully participate, the effect of the attendance of the
proposed ward or ward on his or her physical or
psychological health in relation to the importance of the
proceeding, and the expressed desires of the proposed ward
or ward. If the proposed ward or ward is unable to attend the
hearing because of residency in a nursing home or other
facility, physical inaccessibility, or a lack of transportation
and if the proposed ward or ward, guardian ad litem,
advocate counsel, or other interested person so requests, the
court shall hold the hearing in a place where the proposed
ward or ward may attend.

Sec. 54.44(4)(a).

¶13 As in the guardianship context, an individual who is the subject of a
petition for protective placement also has “the right to be present” at the hearing on
the petition. See WIS. STAT. § 55.10(4) (applying right to be present in WIS. STAT.
§ 54.42(5) to hearing for protective placement). Using language similar to WIS.
STAT. § 54.44(4)(a), § 55.10(2) also requires the petitioner to make sure the
individual over whom protective placement is sought “attends” the hearing, unless
the attendance is waived:

(2) ATTENDANCE. The petitioner shall ensure that the
individual sought to be protected attends the hearing on the

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No. 2022AP765-FT

petition unless, after a personal interview, the guardian ad
litem waives the attendance and so certifies in writing to the
court the specific reasons why the individual is unable to
attend. In determining whether to waive attendance by the
individual, the guardian ad litem shall consider the ability of
the individual to understand and meaningfully participate,
the effect of the individual’s attendance on his or her
physical or psychological health in relation to the importance
of the proceeding, and the individual’s expressed desires. If
the individual is unable to attend a hearing only because of
residency in a nursing home or other facility, physical
inaccessibility, or lack of transportation, the court shall, if
requested by the individual, the individual’s guardian ad
litem, the individual’s counsel, or other interested person,
hold the hearing in a place where the individual is able to
attend.

Sec. 55.10(2). “Failure to ensure the attendance of the respondent at a hearing
absent a valid waiver by the guardian ad litem causes the [circuit] court to lose
competency to proceed on the petition.” Joseph S., 330 Wis. 2d 737, ¶5.

¶14 P.B.’s appeal raises the question whether her right to “attend” the final
hearing entitled her to be physically present in the room where the hearing took
place, absent a valid waiver. To answer this question, we must determine the
meaning of the phrase “attends the hearing” in WIS. STAT. §§ 54.44(4)(a) and
55.10(2). Neither WIS. STAT. ch. 54 or 55 defines the term “attends,” and no
published Wisconsin decision has considered its meaning in the context of a
proceeding in which the participants appear through video-conference technology.
Thus, we look to the word’s “common, ordinary, and accepted meaning,” Kalal,
271 Wis. 2d 633, ¶45, and may consult dictionary definitions in our analysis,
Stroede v. Society Ins., 2021 WI 43, ¶12, 397 Wis. 2d 17, 959 N.W.2d 305 (“[W]e
often consult a dictionary in order to guide our interpretation of the common,
ordinary meanings of words.”).

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No. 2022AP765-FT

¶15 The definition of “attends” that appears most applicable is “to be
present at” or to “go to.” Attend, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (unabr. 1993). Being “present at” or “go[ing] to” a hearing suggests
that the individual is physically present at the location where the hearing takes
place.4

¶16 Other language in WIS. STAT. §§ 54.44(4)(a) and 55.10(2) supports
the conclusion that “attends” connotes physical presence. Kalal, 271 Wis. 2d 633,
¶46 (statutory language is not construed in isolation, but rather “in the context in
which it is used” and “as part of a whole”). Specifically, each statute provides that
if the individual cannot attend a hearing “because of residency in a nursing home or
other facility, physical inaccessibility, or” lack of transportation, the circuit court
must, upon request, “hold the hearing in a place” where the individual can attend.
Sec. 54.44(4)(a), 55.10(2). In other words, the statutes require the court to change
the location of the hearing if the individual cannot “attend” because of where the
individual resides, because the individual cannot physically access the hearing
location, or because the individual does not have transportation to the hearing
location. The statutory directive to change the location of the hearing if any of these
circumstances exists appears intended to ensure the individual can attend the hearing
in person.

¶17 P.B. also cites a related statute, WIS. STAT. § 885.60(2)(a), which
pertains to a circuit court’s use of video conferencing technology. See Soto, 343
Wis. 2d 43, ¶21 (identifying § 885.60 as “related” to criminal statute governing
presence of a defendant at certain proceedings). Section 885.60 permits the use of

Our analysis is equally applicable to the statutory right to be “present” at the hearing,
4

which as relevant here means “being before, beside, with, or in the same place as someone or
something.” Present, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993).

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No. 2022AP765-FT

video-conferencing technology in criminal and certain civil proceedings, including
protective placement proceedings under WIS. STAT. ch. 55. Importantly, however,
§ 885.60(2)(a) provides that “a respondent in a [protective placement] matter … is
entitled to be physically present in the courtroom at all … dispositional hearings.”5
Consistent with this entitlement, the statute specifies that a court’s use of video-
conferencing technology is “[s]ubject to” the right to be physically present.
Sec. 885.60(1).

¶18 The County notes that “the guardianship and protective placement
statutes do not use the term ‘physically present,’” unlike WIS. STAT. § 885.60(2)(a).
To the extent this observation is intended to mean that the phrase “attends the
hearing” means something other than physical presence, we disagree. First, as
discussed above, § 885.60(2)(a) affirms that “attends” means that a respondent in a
protective placement action is entitled to be physically present at all dispositional
hearings. Second, § 885.60 “was fully derived from a Supreme Court rule through
a legislative delegation under WIS. STAT. § 751.12.” Soto, 343 Wis. 2d 43, ¶32
(citing S. CT. ORDER 07-12, 2008 WI 37, 305 Wis. 2d xli (eff. July 1, 2008)).
“Section 751.12 prohibits the supreme court from abridging, enlarging or modifying
the substantive rights of any litigant when creating a Supreme Court rule under
§ 751.12(1).” Soto, 343 Wis. 2d 43, ¶32. Thus, § 885.60(2)(a) cannot enlarge or
diminish the statutory right to “attend” a final hearing under WIS. STAT. chs. 54 and

5
An official comment to Wisconsin Supreme Court Order 07-12, which created
subchapter III of WIS. STAT. ch. 885, makes clear that the availability and convenience of video-
conferencing technology may not override the right to be physically present at the dispositional
hearing: “It is the intent of [WIS. STAT. §] 885.60 to scrupulously protect the rights of criminal
defendants and respondents in matters which could result in loss of liberty … by preserving to such
litigants the right to be physically present in court at all critical stages of their proceedings.” S. CT.
ORDER 07-12, 2008 WI 37, 305 Wis. 2d xli, xlvii-xlviii (eff. July 1, 2008).

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No. 2022AP765-FT

55. This makes clear that the right recognized in WIS. STAT. §§ 54.44(4)(a) and
55.10(2) is a right to be physically present at the hearing.

¶19 We also consider the purpose and effect of the guardianship and
protective placement statutes. See Soto, 343 Wis. 2d 43, ¶20. Guardianship and
protective placement are statutorily created mechanisms that can result in the
significant curtailment of an individual’s physical liberty and decision-making
authority. Proceedings under these statutes implicate significant liberty interests
given the potential extent and duration of these restrictions:

We have recognized that a “huge liberty interest” is at stake
in a protective placement proceeding because [protective
placements] “are indefinite in duration and thereby are
tantamount to a life sentence to a nursing home or other
custodial setting.” We have also recognized the restrictions
on liberty that are attendant upon a declaration of
incompetency in a guardianship proceeding.

Joseph S., 330 Wis. 2d 737, ¶13 (quoting Walworth County v. Therese B., 2003
WI App 223, ¶12, 267 Wis. 2d 310, 671 N.W.2d 377). Not only are the stakes high
for the individual, the determinations that must be made to support the appointment
of a guardian or protective placement are among the most difficult that “a judge is
called upon to make.” See Bryn v. Thompson, 21 Wis. 2d 24, 28, 123 N.W.2d 505
(1963). Given this difficulty, we construed the predecessor to WIS. STAT.
§ 54.44(4)(a) as “reflect[ing] a legislative judgment that … a declaration of
incompetency and the attendant restrictions on a proposed ward’s liberty, not be
made without whatever input the proposed ward is able to give.” Knight v.
Milwaukee County, 2002 WI App 194, ¶3, 256 Wis. 2d 1000, 651 N.W.2d 890.
WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) reflect a similar legislative judgment
and protect an individual’s right to be physically present in the room where a final
guardianship or protective placement hearing is held.

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No. 2022AP765-FT

¶20 The County’s arguments that physical presence is not required are not
persuasive. The County argues that WIS. STAT. § 885.60 allowed it to arrange for
P.B. to appear at the hearing by video conference, unless she objected and asserted
her right to be physically present. We disagree.

¶21 Again, the use of video-conference technology is expressly “[s]ubject
to” an individual’s right “to be physically present in the courtroom.” WIS. STAT.
§ 885.60(1), (2)(a). WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) require the
petitioner to make sure the individual over whom guardianship and protective
placement is sought “attends” the hearing, unless the individual’s GAL waives that
right.6 Waiver, in this context, requires “some affirmative relinquishment on the
part of the holder.” See Soto, 343 Wis. 2d 43, ¶37. Here, there is no dispute that
P.B.’s GAL did not waive her right to attend the hearing. Absent such a waiver, the
County acted contrary to the statutes by failing to ensure that P.B. appeared in
person.

¶22 Moreover, the specific provision in WIS. STAT. § 885.60 upon which
the County relies, § 885.60(2)(d), is not applicable to a respondent’s appearance via
video conference. Section 885.60(2)(d) addresses an individual’s ability to object
to the testimony of other witnesses being presented via video conference, not his or
her own remote appearance. This conclusion flows from the text and structure of
the four paragraphs in § 885.60(2). Paragraph (2)(a) recognizes the right of a
criminal defendant or a person in certain civil proceedings to be “physically present
in the courtroom at all trials and sentencing or dispositional hearings.” Sec.
885.60(2)(a). Paragraph (2)(b) permits the proponent of a witness to file a notice of

6
WISCONSIN STAT. § 55.10(2) goes further and requires the guardian ad litem to certify in
writing both the individual’s waiver and “the specific reasons why the individual is unable to
attend.”

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No. 2022AP765-FT

intent to present the witness’s testimony via video conference and gives “[a]ny other
party” to the proceeding ten days to file an objection. Sec. 885.60(2)(b). Paragraph
(2)(c) states that if a plaintiff or petitioner files an objection, the court “shall
determine the objection in the exercise of its discretion” under certain statutory
criteria. Sec. 885.60(2)(c). In contrast, paragraph (2)(d) states that if a defendant
or respondent files an objection, and the proceeding is one in which “he or she is
entitled to be physically present in the courtroom, the court shall sustain the
objection.” Sec. 885.60(2)(d).

¶23 Our supreme court has explained the intent of these provisions as
follows:

[WISCONSIN STAT. § 885.60] is also intended to preserve
constitutional and other rights to confront and effectively
cross-examine witnesses. It provides the right to prevent the
use of videoconferencing technology to present such adverse
witnesses, but rather require that such witnesses be
physically produced in the courtroom.

S. CT. ORDER 07-12, 305 Wis. 2d at xlviii. This statement of intent confirms that
§ 885.60(2) addresses the presentation of witness testimony through video
conference, not the attendance of respondents like P.B. The County’s failure to
ensure the physical presence of P.B. at the hearing, absent a valid waiver by the
GAL pursuant to WIS. STAT. §§ 54.44(4)(a) and 55.10(2), “cause[d] the [circuit]
court to lose competency to proceed on the petition.” Joseph S., 330 Wis. 2d 737,
¶5.

¶24 Finally, the County flags a statement by the circuit court in its written
decision that P.B.’s hearing “was conducted during a global pandemic … and
videoconference was an option that allowed the [c]ourt to conduct the hearing in a
manner protecting all litigants.” We note this statement to acknowledge that our

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No. 2022AP765-FT

supreme court issued several orders in light of the COVID-19 pandemic that
suspended most in-person proceedings in circuit courts, but those orders were
terminated effective May 21, 2021, twelve days before the final hearing in this case.
See In Re the Matter of Modification of Circuit Court and Municipal
Accommodations that Were Required Because of the COVID-19 Pandemic (S. Ct.
Order issued May 21, 2021). No party has brought to our attention any pandemic-
related order that precluded P.B. from being physically present at her final hearing.

CONCLUSION

¶25 WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) afford P.B. the right to
be physically present in the courtroom for her final hearing. The County did not
fulfill its statutory responsibility to ensure her in-person appearance and her GAL
did not waive her right to appear. Accordingly, the circuit court lacked competency
to issue the guardianship and protective placement orders. Those orders are vacated,
and this case is remanded to the circuit court so that a hearing may be conducted in
accordance with these statutes.

By the Court.—Orders vacated and cause remanded with directions.

13