Price County v. C. W.

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.
September 6, 2023
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. 2023AP18-FT Cir. Ct. No. 2021GN21

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE GUARDIANSHIP OF C. W.:

PRICE COUNTY,

PETITIONER-RESPONDENT,

V.

C. W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Price County:
KEVIN G. KLEIN, Judge. Affirmed.

¶1 STARK, P.J.1 Clara2 appeals from an order for her protective
placement under WIS. STAT. § 55.08(1). She argues that Price County failed to

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

(continued)
No. 2023AP18-FT

prove by clear and convincing evidence that she was in need of protective
placement because it did not present testimony from a medical professional as to
each element in § 55.08(1), and that the County’s failure to do so violated her due
process rights. We conclude that the relevant statutes do not require a medical
professional to provide testimony in support of a petition for protective placement
where, as here, a guardianship of Clara’s person was ordered within twelve
months of the protective placement hearing, the court took judicial notice of a
medical professional’s report and its findings and order from the guardianship
proceeding, and a comprehensive evaluation was prepared in this matter pursuant
to WIS. STAT. § 55.11 by a qualified individual. Accordingly, we affirm.

BACKGROUND

¶2 In November 2021, Price County filed a petition for temporary and
permanent guardianship of Clara. The County also filed a petition to have Clara
protectively placed. As part of the guardianship proceedings, Dr. Nicholas Starr, a
psychologist, examined Clara and filed a report with the circuit court in which he
diagnosed her as having dementia and parasitosis. At the temporary guardianship
hearing, the court received Starr’s report into evidence, granted the temporary
guardianship, appointed a guardian ad litem (GAL), and scheduled a jury trial.

¶3 Prior to trial, the parties reached a resolution. Pursuant to the
parties’ stipulation, the circuit court received Dr. Starr’s examination report into
evidence. Further, based upon Starr’s report and the parties’ agreement, the court

This is an expedited appeal under WIS. STAT. RULE 809.17.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.

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found that Clara was incompetent and “impaired as a result of degenerative brain
disorder” and ordered permanent guardianships of Clara’s person and estate. The
County withdrew its petition for protective placement, as the parties agreed that an
attempt would be made to meet Clara’s needs less restrictively at home. The
County noted, however, that both parties believed “that at some time in the
future,” they would revisit Clara’s need for protective placement.

¶4 In April 2022, the County refiled in the same case a second petition
for Clara’s protective placement. In May 2022, Beverly Albrecht, a certified
social worker and investigator for Adult Protective Services, filed a
comprehensive agency evaluation for Clara’s protective placement on behalf of
the Price County Department of Health and Human Services (the Department). To
prepare the evaluation, Albrecht interviewed Clara’s family members, an Aspirus
Medford Hospital social worker, an Aspirus visiting nurse, and a Conservatorship
Plus, LLC staff member; reviewed Clara’s medical records from Aspirus Medford
Hospital and Clinic; reviewed Price County Sheriff’s Department’s reports,
photos, and a body camera video; visited Clara’s current address, Price Electric,
Prevail Bank, Medford Co-op, and a volunteer shopper who assisted Clara; and
reviewed Inclusa Health Services staff correspondence.

¶5 In June 2022, the circuit court held a full due process hearing on the
protective placement petition. Albrecht was the sole witness to testify at the
hearing. She stated that she did not provide direct services to Clara but she met
with her often “to keep tabs on her needs.” She further testified that the prior
petition for protective services was dismissed because the County had tried to give
Clara “a chance to try to live at home with [the] guardianship and other services in
place,” and that the County filed a new petition because it determined the in-home
services were insufficient to adequately care for Clara. Albrecht testified that

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since the guardianship was ordered, Clara had received cleaning, nursing, grocery,
and exterminator services while in her home. Albrecht stated that she was
uncertain about the quality of Clara’s nutrition while in her home but she
mentioned that the grocery services ensured that Clara had access to healthy food.

¶6 Albrecht stated that despite these services, the Department still had
concerns about Clara living alone for a variety of reasons: her house had a
deteriorating substructure; her bathroom was nearly unusable; she burned bills and
other items in a working fireplace that had not been inspected; she put bolts on her
door without giving anyone a key; she fed the mice in her house like pets, leading
to an infestation; she left food sitting out that gathered flies; and, once, the fire
department was called because Clara left food burning on the stove and did not
realize that she had done so. Clara also regularly called for police assistance
despite there often being no genuine issue to report.

¶7 Albrecht testified that Clara was diagnosed with “parasitosis,” a
condition where Clara believes “parasites” or other “living things” are in her
wounds causing her to “pick at [them] continuously, causing a larger and larger
wound.” Albrecht stated that Clara’s most recent hospitalization was due to these
“wound care issues.”

¶8 Albrecht testified Clara also suffered from delusions—specifically,
that a “bad man” named “Pocock” comes to her house and that Clara blames “the
bad man” “for anything that isn’t running smoothly,” such as missing food, loud
noises, and alleged digging under her home. According to Albrecht, Clara’s
delusions caused Clara “to isolate herself” to such an extent that, in the past, she
had refused to open the door to her home.

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¶9 Regarding her physical health, Albrecht testified that Clara is “fairly
healthy” but again mentioned that Clara was recently hospitalized due to the
infection of a “nasty” wound. Albrecht stated that she knew that Clara had
diabetes, but she was unaware whether it was appropriately managed. Albrecht
testified that Clara was currently not on any medications because she “refuses to
take anything,” but in the past Clara had been prescribed Seroquel to treat her
delusions.

¶10 The circuit court sustained Clara’s counsel’s objection to Albrecht’s
testimony regarding the physical and mental conditions providing the basis for
Clara’s guardianship as lacking foundation. When asked if Clara’s conditions
were permanent, Albrecht answered that she believed they were, but Clara’s
counsel objected again based on a lack of foundation. The court overruled the
objection, explaining that the court took “notice of the result”—i.e., the court’s
finding in the previous guardianship action that Clara’s conditions were
permanent.

¶11 Albrecht testified that prior to the current protective placement
petition, Clara had been recently moved to a facility called Cranberry Court where
she received twenty-four-hour supervision. According to Albrecht, this facility
was the least restrictive environment for Clara and allows her to be “more active
instead of isolated.” Based upon her recent visit, Albrecht testified that Clara
“appear[ed] much neater groomed” and was “dressed clean” since residing in
Cranberry Court.

¶12 At the conclusion of Albrecht’s testimony, Clara’s counsel argued
that the County failed to present sufficient evidence in support of her protective
placement because it failed to present testimony from a medical professional. The

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County responded that because the prior circuit court “made the determination
back then that [Clara’s] disability is … permanent or likely to be permanent,” it
was sufficient for the County to provide “someone who’s intimately involved”
with Clara to show “that there’s been no changes in the last five, six months.”

¶13 The circuit court found that the County had met its burden to prove
that Clara met the standards for protective placement, based in part on the court’s
review of “necessary reports and documents on file.” The court further found that
Clara had a “primary need for residential care and custody” due to the “set of
circumstances that do show significant danger, significant safety concerns, [and]
significant lack of insight.” The court noted that Clara was “adjudicated
incompetent as of last December,” which was “within the last 12 months, and
there’s been no evidence that that incompetency has disappeared.” Clara’s
difficulties, the court found, “are a result of either degenerative brain disorder or
other like incapacities,” and they result in Clara “being totally incapable of
providing for her own care or custody as to create a substantial risk of serious
harm to herself.” Lastly, the court found Clara has “a disability that is permanent
or likely to be permanent” and she resides in the least restrictive placement
consistent with her needs. Clara now appeals.

DISCUSSION

¶14 Clara argues that the County failed to meet its burden to prove by
clear and convincing evidence that she is in need of protective placement. She
claims that the County was required to present evidence from a medical
professional regarding her medical needs as well as demonstrate that these needs
created a basis for a protective placement order. She argues the County’s failure
to provide such evidence contradicts the statutory requirements in WIS. STAT.

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ch. 55, the United States Constitution, and Walworth County v. Therese B., 2003
WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377. She further asserts that the
County’s failure to call a medical professional deprived her of her right to cross-
examine that professional on the required elements for protective placement,
thereby violating her due process rights.

¶15 Our review of a protective placement order presents a mixed
question of fact and law. This court will uphold the circuit court’s factual findings
unless they are clearly erroneous. WIS. STAT. § 805.17(2). “A finding of fact is
clearly erroneous if it is against the great weight and clear preponderance of the
evidence.” Metropolitan Assocs. v. City of Milwaukee, 2018 WI 4, ¶62, 379
Wis. 2d 141, 905 N.W.2d 784. Whether the evidence supports protective
placement is a question of law that we review de novo. Coston v. Joseph P., 222
Wis. 2d 1, 23, 586 N.W.2d 52 (Ct. App. 1998). Whether an individual’s right to
due process was violated also presents a question of law that we review de novo.
State v. Zamzow, 2017 WI 29, ¶10, 374 Wis. 2d 220, 892 N.W.2d 637.

¶16 WISCONSIN STAT. ch. 55 “provides for long-term care for individuals
with disabilities that are permanent or likely to be permanent.” Fond du Lac
County v. Helen E.F., 2012 WI 50, ¶21, 340 Wis. 2d 500, 814 N.W.2d 179; see
also WIS. STAT. § 55.08(1)(d). This statutory scheme is designed “to place the
least possible restriction on personal liberty and exercise of constitutional rights
consistent with due process.” See WIS. STAT. § 55.001. An individual facing a
possible protective placement is entitled to various rights at full due process
hearings such as the right to counsel, a GAL, a jury trial, and “the right to present
and cross-examine witnesses, including any person making an evaluation or
review.” See WIS. STAT. § 55.10(4)(a)-(c).

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¶17 In order for an individual to be protectively placed, a petitioner must
prove, by clear and convincing evidence, that:

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

(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.

WIS. STAT. §§ 55.08(1), 55.10(4)(d). A “comprehensive evaluation” of the
individual is also required “if such an evaluation has not already been made.”
WIS. STAT. § 55.11(1). Additionally, if an individual is “adjudicated
incompetent … more than 12 months before the filing of an application for
protective placement … on his or her behalf, the court shall review the finding of
incompetency.” WIS. STAT. § 55.075(3).

I. Sufficiency of the evidence

¶18 Clara relies on Therese B. in support of her argument that the
County failed to prove by clear and convincing evidence that she was in need of
protective placement. She asserts Therese B. requires that in order to meet its
burden of proof for protective placement, “the government must present a witness
who is qualified by experience, training and independent knowledge of [the
individual’s] mental health to give a medical or psychological opinion on each”
element. Therese B., 267 Wis. 2d 310, ¶13. Clara concedes, however, that the

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County was not required to present the testimony of a physician or psychologist
and she states that the testimony of a nurse practitioner caring for Clara would
have been sufficient. We conclude that the County met its burden of proof under
the facts of this case.

¶19 The County first notes, and we agree, that Therese B. is
distinguishable. Therese B. concerned both an initial guardianship and a
protective placement. Id., ¶¶2, 16. Because those petitions were heard together
and a guardianship was sought, the witness in Therese B. was a psychologist
appointed by the circuit court to provide the statutorily required report concerning
Therese’s mental condition. Id., ¶3; see also WIS. STAT. § 54.36 (stating that an
appointment of a guardian requires that “a physician or psychologist, or both”
must “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”).

¶20 In the present case, Clara had already been appointed a guardian, and
only a protective placement order was at issue. As noted above, a medical opinion
is required for the appointment of a guardian, see WIS. STAT. § 54.10(2)(b)2., but
there is no such corresponding statutory requirement for a protective placement
order.

¶21 Clara argues that the fact she was previously adjudged in need of a
guardianship does not mean that she also requires protective placement. Clara is
correct that a “finding of incompetency and appointment of a guardian … is not
grounds for involuntary protective placement,” and a “protective
placement … may be made only in accordance with [WIS. STAT.] ch. 55.” See

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WIS. STAT. § 54.48. However, the circuit court here did not simply rely upon the
prior guardianship order as the basis for Clara’s protective placement. Instead, the
court considered all of the evidence before it in determining that the County
proved each element in WIS. STAT. § 55.08(1). This evidence included the
petition, comprehensive evaluation, and Albrecht’s testimony, together with the
findings and orders entered in Clara’s guardianship proceeding held five months
earlier. See WIS. STAT. § 902.01 (allowing a court to take judicial notice of
adjudicative facts).

¶22 Clara concedes that WIS. STAT. ch. 55 does not require a written
report from a medical professional. She asserts, however, that this fact “doesn’t
mean that testimony from a medical professional isn’t required at a contested
protective placement proceeding.” She argues that in a protective placement
action, the circuit court “must make several findings relating to medical questions
involving the individual’s needs, capabilities and disability.” Specifically, Clara
argues that medical testimony is required for the court to determine whether “‘a
degenerative brain disorder … or other like incapacity’ renders ‘the
individual … so totally incapable of providing for … her own care or custody as to
create a substantial risk of serious harm to … herself or others,’” and whether “the
individual has a disability that is permanent or likely to be permanent.” While
Clara correctly notes that the court must be presented with evidence on each of the
elements required for a protective placement, we conclude that there was no need
for testimony from a medical professional in this case in light of the findings and
order entered in Clara’s prior guardianship proceeding.

¶23 For Clara to be protectively placed, WIS. STAT. § 55.08(1)(a)
required the County to prove that Clara has a primary need for residential care and
custody. The circuit court found that Clara required residential care and custody

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due to the “set of circumstances that do show significant danger, significant safety
concerns, [and] significant lack of insight.” Albrecht’s testimony provided ample
evidence in support of the court’s findings, as Albrecht testified regarding the
unsanitary and unsafe conditions in Clara’s home, as well as Clara’s isolation and
delusions. Additionally, Albrecht discussed Clara’s parasitosis which had recently
resulted in a serious infection requiring hospitalization. Clara does not take issue
with Albrecht’s testimony or argue that the court’s findings in this regard are
clearly erroneous.

¶24 WISCONSIN STAT. § 55.08(1)(b) required the County to prove that
Clara had been determined to be incompetent by a circuit court. The court
properly took judicial notice of the incompetency finding it made in Clara’s
guardianship proceeding. See WIS. STAT. § 902.01(2), (3).

¶25 WISCONSIN STAT. § 55.08(1)(c) and (d) required the County to
prove, in part, that Clara suffers from a permanent developmental disability,
degenerative brain disorder, serious and persistent mental illness, or other like
incapacities. Again, the circuit court here properly took judicial notice of the
finding in Clara’s guardianship proceeding that she suffers from a permanent
degenerative brain disorder or other like incapacity.

¶26 As to Clara’s argument that the County was required to provide
evidence from a medical professional in order to prove that her degenerative brain
disorder renders her “so totally incapable of providing for … her own care as to
create a substantial risk of serious harm to … herself or others,” we again note that
the circuit court relied upon its finding in the guardianship proceeding. In
addition, the court properly relied upon Albrecht’s testimony regarding Clara’s
limitations and needs since her guardianship was ordered. As noted above, this

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included testimony regarding unsanitary and unsafe conditions in Clara’s home, as
well as her isolation and her continuing delusions, all of which the court found
created a substantial risk of harm to Clara.

¶27 Clara does not question the accuracy of Albrecht’s testimony
regarding Clara’s inability to care for herself, nor does she claim that Albrecht
incorrectly stated that Clara’s inability creates a substantial risk of harm to Clara.
Instead, she appears to argue that the circuit court could not rely upon Albrecht’s
testimony because it was not provided by a medical professional. She fails,
however, to develop an argument as to why Albrecht lacked sufficient foundation
for her testimony or to explain what evidence should have been provided by a
nurse practitioner that Albrecht did not offer.

¶28 In her reply brief, Clara argues that J.C. v. R.S., No. 2022AP1215,
unpublished slip op. ¶6 (WI App Feb. 16, 2023), provides that a “petitioner cannot
meet its burden without presenting a witness qualified to give a medical or
psychological opinion.” However, J.C. is distinguishable. That case concerned a
problem with the underlying guardianship, which is not at issue here. A prior
guardianship in J.C. was based on the report of a physician’s assistant, who did
not have the requisite background to file a report for purposes of WIS. STAT.
ch. 54. J.C., No. 2022AP1215, ¶25. The circuit court overseeing the protective
placement therefore could not rely on that report for the medical testimony
necessary to show that the subject individual was incompetent. Id., ¶¶25-26.

¶29 Here, in contrast, Clara’s guardianship was ordered based upon the
report of a psychologist. Clara stipulated to her guardianship order on the basis of
that report only five months before her protective placement hearing. Therefore,
in ordering Clara’s protective placement, the circuit court could properly rely on

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and take judicial notice of the order entered in the guardianship proceedings, in
which the court had determined that Clara was incompetent, that she had a
degenerative brain disorder, that her condition was permanent or was likely to be
permanent, and that it resulted in her “being totally incapable of providing for her
own care or custody as to create a substantial risk of serious harm to herself.”

¶30 In ordering Clara’s protective placement, the circuit court reviewed
each statutory element and it properly relied on Albrecht’s testimony, the
comprehensive evaluation, and its prior guardianship order. Clara does not argue
that the court’s findings are clearly erroneous. Under the unique facts of this case,
we conclude that there was no requirement that a medical professional provide
testimony in support of the petition for Clara’s protective placement.

II. Due process

¶31 Clara argues that “[b]ecause the essentially [sic] medical question of
whether [Clara] was in need of protective placement was decided without the input
of a medical professional—and without [Clara’s] ability to cross-examine the
medical professional—the protective placement order violates [Clara’s] due
process rights.” She asserts as in Therese B., Albrecht was merely a conduit for
the medical opinion of others, and she claims that the only evidence related to her
medical condition was Albrecht’s hearsay statement that she had parasitosis and
possibly some kind of Alzheimer-related dementia. Clara further asserts that
because no medical professional testified, she was denied “her statutory right to
cross-examine on the nature of the alleged diagnoses, whether they required
residential care, the extent to which they were the cause of her inability to care for
herself independently and whether they were permanent or likely to be
permanent.”

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¶32 Clara correctly notes that in Therese B., our supreme court held that
when an expert witness who had not personally examined Therese was used as a
conduit for the opinions of another examining professional, Therese was deprived
of the opportunity to cross-examine that professional in order to “adequately probe
the professional’s qualifications, the facts underlying the opinion and the method
undertaken to reach the opinion.” Therese B., 267 Wis. 2d 310, ¶13. Again,
however, Clara ignores the fact that the circuit court had before it the records from
Clara’s guardianship action—including Dr. Starr’s report and its determination
and order, which were filed within the twelve-month statutory deadline. See WIS.
STAT. § 55.075(3).

¶33 Clara nevertheless contends that the circuit court could not rely upon
Dr. Starr’s report in making its findings and order in the protective placement
action because the court admitted that report only for the purposes of the
guardianship action. She asserts that she did not stipulate to the report’s admission
in the protective placement matter, and Clara further contends that it was hearsay.

¶34 Even if we assume, without deciding, that the circuit court could not
properly consider Dr. Starr’s report in the context of this protective placement
action, Clara fails to provide any authority prohibiting the court from taking
judicial notice of the determination and guardianship order. As noted above, the
court’s findings and order in the guardianship matter clearly addressed the
findings that Clara contends must be based upon medical testimony in this matter.

¶35 In addition, the County responds that, as Clara noted in her brief,
pursuant to WIS. STAT. § 55.10(4), she had the “right to cross-examine witnesses,
including any person making an evaluation or review under [WIS. STAT. §] 55.11.”
See § 55.10(4)(c). The County argues that Clara was afforded that right—namely,

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she had the opportunity to cross-examine Albrecht, the author of the
comprehensive evaluation, and she did so. Clara was also entitled to present
witnesses at the hearing, and she could have called Dr. Starr. Instead, she chose to
leave the evidence in the record unrefuted. We therefore conclude that Clara’s due
process rights were not violated in the protective placement proceedings.

By the Court.—Order affirmed.

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

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