La Crosse County v. K. K.

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.
April 24, 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. 2024AP1871 Cir. Ct. No. 2023GN94

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE GUARDIANSHIP OF K.K.:

LA CROSSE COUNTY,

PETITIONER-RESPONDENT,

V.

K.K.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for La Crosse County:
MARK A. HUESMANN, Judge. Order affirmed; order reversed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1871

¶1 PER CURIAM. K.K. appeals orders for guardianship of his person
pursuant to WIS. STAT. ch. 54 and for his protective placement pursuant to WIS.
STAT. ch. 55 (2023-24).1 In his appellate briefing, K.K. challenges only the order
for his protective placement. Specifically, K.K. argues that La Crosse County
failed to prove, by clear and convincing evidence, that he was so totally incapable
of providing for his own care or custody as to create a substantial risk of serious
harm to himself or others, as required under WIS. STAT. § 55.08(1)(c). We agree.
Accordingly, we affirm the order for permanent guardianship and reverse the order
for protective placement.2

BACKGROUND

¶2 In December 2023, the County filed a petition for protective
placement of K.K. The County also filed a psychologist’s report completed by
Dr. Joel Rooney, who had evaluated K.K. at the La Crosse County Care Center
(“Care Center”) where K.K. was residing under a WIS. STAT. ch. 51 commitment.

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
Explaining further this court’s mandate, K.K.’s notice of appeal states that he is
appealing both the order for guardianship under WIS. STAT. ch. 54 and the order for protective
placement under WIS. STAT. ch. 55. Because K.K.’s arguments in his appellate briefing address
only the protective placement order, and he seeks relief only from the protective placement order,
this court affirms the guardianship order as unchallenged, addresses only the protective placement
order, and reverses that order based on the County’s failure to make the showing of a substantial
risk of serious harm that is required by WIS. STAT. § 55.08(1)(c).

K.K. also argues that the County failed to prove, by clear and convincing evidence, that
he has a primary need for residential care and custody, as required by WIS. STAT. § 55.08(1)(a).
We do not address this argument because of our dispositive conclusion that the County failed to
prove, by clear and convincing evidence, that he is so totally incapable of providing for his own
care and custody as to create a substantial risk of serious harm to himself or others, as required by
§ 55.08(1)(c).

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No. 2024AP1871

¶3 The circuit court held a hearing on the petition on January 16, 2024.
The court heard testimony from the director of the Care Center, a County social
worker, and Rooney. The court admitted Rooney’s report into evidence. We
present in the discussion below pertinent parts of each witness’s testimony and
Rooney’s report. After considering the parties’ arguments and the
recommendation of the guardian ad litem (GAL), the court granted the petition for
protective placement of K.K.3

¶4 K.K. was subsequently transferred from the Care Center to a
community-based residential facility, and then to a different community-based
residential facility.

DISCUSSION

¶5 Decisions on protective placement are within the sound discretion of
the circuit court. Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d 411,

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Given the passage of time that is significant for the nature of the case, we now briefly
explain the timeline since the circuit court issued the protective placement order on January 17,
2024. K.K. timely filed a notice of intent to pursue post-disposition relief from that order and,
after receiving several extensions of time in which to file a motion or a notice of appeal, filed the
notice of appeal in September 2024. After the parties completed their appellate briefing, the
appeal was submitted to this court in January 2025, approximately one year after entry of the
protective placement order, which was around the time that K.K.’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, we address the appeal as
submitted.

Separately, when the circuit court issued the protective placement order, K.K. was also
subject to a WIS. STAT. ch. 51 commitment order. The parties do not in their appellate briefing
address any potential effect of the commitment order on this appeal. Accordingly, we do not
address the commitment order further.

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No. 2024AP1871

678 N.W.2d 285. “The circuit court’s factual findings will not be overturned
unless clearly erroneous.” Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52
(Ct. App. 1998); see WIS. STAT. § 805.17(2). The issue of whether the evidence
satisfies the legal standard for protective placement is a question of law that we
review de novo. Coston, 222 Wis. 2d 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). Before a circuit
court can order the protective placement of an individual, the court must find by
clear and convincing evidence that the individual meets all four standards in WIS.
STAT. § 55.08(1). WIS. STAT. § 55.10(4)(d). Those standards are as follows, with
the focus here being on (c):

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

(b) The individual is a minor who is not alleged to
have a developmental disability and on whose behalf a
petition for guardianship has been submitted, or is an adult
who has been determined to be incompetent by a circuit
court.

(c) As a result of developmental disability,
degenerative brain disorder, serious and persistent mental
illness, or other like incapacities, the individual is so totally
incapable of providing for his or her own care or custody as
to create a substantial risk of serious harm to himself or
herself or others. Serious harm may be evidenced by overt
acts or acts of omission.

(d) The individual has a disability that is permanent
or likely to be permanent.

Sec. 55.08(1).

¶7 Here, as noted, the dispositive issue on appeal is whether the County
proved the third standard, WIS. STAT. § 55.08(1)(c), by clear and convincing

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No. 2024AP1871

evidence. Specifically, K.K. argues that the County failed to present sufficient
evidence to show that his mental illness resulted in his being “so totally incapable
of providing for his … own care or custody as to create a substantial risk of
serious harm to himself … or others.” See § 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).

Additional Background

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

¶9 Care Center director Tim Blumentritt testified that K.K. “struggle[d]
to regulate his emotions and behaviors at times.” Blumentritt testified more
specifically that K.K. had “periods of instability, irritability” and described as
examples that K.K. recently displayed a fist toward a staff member and slammed a
door when he could not find his coffee cup. Blumentritt testified that K.K. was
physically capable of handling his activities of daily living, but that he had to be
reminded of certain tasks such as changing clothes and showering. Blumentritt
opined that, if K.K. were not in a structured environment with constant
supervision, “he would struggle significantly.” Blumentritt testified more
specifically that, without K.K.’s current supports at the Care Center and through
the County, “getting to appointments, staying organized, [and] taking medications
would be significant challenges.” Blumentritt testified that K.K. had shown some

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No. 2024AP1871

improvement over the previous two months, and Blumentritt attributed that
improvement to the stability and structure provided by the Care Center.

¶10 County social worker Stephanie Varilek testified that she had been
working on connecting K.K. with resources such as mental health services and
housing. Varilek testified that these efforts were hindered by K.K.’s lack of
insight into his levels of need, his difficulties in following through on referrals
(such as when he hung up on an agency employee based on how the employee
sounded), and his inability to independently complete paperwork for certain
benefits. Varilek testified that she was also helping K.K. obtain a state ID, which
was hindered by K.K.’s inability to provide the necessary documents. Varilek
testified that, if K.K. were no longer in a structured environment with constant
supervision, K.K. would struggle with managing and maintaining appointments,
managing his medication, and maintaining access to resources and services.

¶11 County psychologist Rooney testified that he based his report on his
review of K.K.’s medical records, conversations with Care Center staff, and a
personal evaluation of K.K. Rooney testified that K.K. had a serious and
persistent mental illness, that his condition was permanent or likely to be
permanent, and that his condition was treatable. Rooney opined that K.K.’s
condition “ma[d]e him unable to effectively receive and evaluate information and
[to] make or communicate decisions related to his physical health and safety.”
Rooney testified that K.K. “appeared to lack insight into his condition, into his
own behavior.”

¶12 Rooney opined that K.K. was “so totally incapable of providing for
his own care and custody that he[] [was] a substantial risk of harm to himself or
others” and that “if left to his own devices, he would be homeless and wouldn’t be

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No. 2024AP1871

able to maintain stable placement.” Rooney testified that K.K. could, with help,
follow through with activities of daily living and taking his medications, but that
he could not “organize these tasks and follow through and do those things on his
own.”

¶13 Rooney testified that an adult family home or group home would be
the least restrictive appropriate environment for K.K. and that it needed to be “a
specialized one with people that are trained to … ensure he’s taking his
medications as prescribed, that his physical whereabouts are being monitored, and
that there’s not an opportunity for him to leave, and that staff are also sensitive
with how they go about encouraging him to follow through with his activities of
daily living.”

¶14 On cross-examination, Rooney agreed with the proposition that K.K.
was “pretty good at taking care of his” activities of daily living, and testified that
“some prompting and encouragement and sending him in the right direction and
saying it the right way [was] something that was helpful for him while at the Care
Center to follow through with his” activities of daily living. Rooney also agreed
that K.K. was good about requesting his medications as needed.

¶15 The GAL recommended that the circuit court order protective
placement. The GAL noted that K.K. “does very well once he’s stabilized and
he’s taking his medication. However, once he doesn’t have the 24/7 supervision,
he decompensates, and then things become a problem for him.” The GAL opined
that protective placement would “give a longer period of time for stabilization”
and that, if K.K. made progress, “the Court [could] always change the conditions
of the protective placement” at the annual reviews.

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No. 2024AP1871

¶16 The circuit court found that K.K. was “suffering a condition that
render[ed] him incompetent, … in particular, a serious and persistent mental
illness, … that this [was] permanent or likely to be permanent, and as a result,
there[] [was] a primary … residential need for care and custody, [and] that the
least restrictive environment consistent with his needs [was] a facility that [would]
provide 24/7 care, in this case, what would be appropriate appears to be an adult
family home or a community-based residential facility.” The court determined
that protective placement was appropriate and that protective services would not
meet K.K.’s needs “at this time.” The court stated that it “ha[d] too many
concerns about either acts of omission or things where [K.K.] would not be able to
care for himself.”

Analysis

¶17 The testimony at the hearing established that K.K. was capable of
doing things for himself, taking care of his daily activities, and requesting his
medications, but that K.K. might need help in doing some of those tasks. As to the
kind of help that might be needed, the witnesses identified the following concerns:
completing paperwork; following through on referrals and managing appointments
so as to maintain access to resources and services such as mental health supports
and housing; staying organized; and managing medications. As to all of these
concerns, the witnesses testified that K.K. could maintain access to resources and
services, obtain housing, organize and follow through on activities of daily living,
and manage medications, but that he would need help with some of those tasks.

¶18 None of the witnesses testified as to why protective placement was
necessary for K.K. to receive such help, or how, even without such help, K.K.
would be at substantial risk of serious harm. In addition, none of the witnesses

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No. 2024AP1871

testified as to what specific symptoms would return if K.K. stopped taking
medications, what activities of daily living he would be unable to perform, or how
those symptoms or inabilities would prevent him from caring for himself so as to
present a substantial risk of serious harm.

¶19 Rooney did testify that K.K. would become homeless “if left to his
own devices,” but did not explain what serious harm would ensue. As the County
concedes, “being homeless is not inherently dangerous enough to meet the
protective placement standards.” While the County argues that K.K. did not
possess the abilities to follow through with the services necessary to ensure that
his needs were met even while homeless, the record does not contain evidence of
the foreseeable harm that might result. See K.N.K., 139 Wis. 2d at 203
(identifying past history of specific harmful acts as reliably predicting “the
foreseeable harm which may result” without protective placement). Unlike in
K.N.K., none of the witnesses testified to how K.K. had so failed to follow through
that he posed a danger to himself or others in the past, and their testimony as
summarized above did not provide specific examples of ways in which he would
be unable to follow through so as to pose a substantial risk of danger to himself in
the future if he were not protectively placed.

¶20 It is true that the GAL suggested that, without the “the 24/7
supervision” that the GAL implied ensures K.K.’s regular medication, “he
decompensates, and then things become a problem for him.” As with other
testimony that the County now relies on, these concepts could have provided
reasonable starting points for the County’s position regarding the substantial risk
of serious danger to himself or others. But the GAL’s testimony lacked the
necessary detail to meet the standard. The GAL provided no specifics about what
she meant by decompensation or by “a problem for him.”

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No. 2024AP1871

¶21 The County relies on Rooney’s report, in particular to its statements
of fact related to K.K.’s history and past behavior. The circuit court admitted the
report into evidence at the hearing but did not rely on it in making its ruling, nor
did Rooney testify to the facts referred to by the County. K.K. argues that
Rooney, in forming his opinion, may properly have relied on the facts stated in his
report, but Rooney did not testify, and his report did not show, that he had first-
hand knowledge of those facts. Therefore, K.K. argues, those statements of fact
are hearsay and cannot be considered for the truth of the matter asserted. We need
not resolve this dispute because, as we now explain, our conclusion that the
County failed to meet its burden remains unchanged even considering those
statements.

¶22 In the report, Rooney stated that, when K.K. was last living in the
community, he stopped taking his medications, used illicit substances, and was
evicted from the place where he was living. Rooney also reported that, while at
the Care Center, K.K. was “disorganized in his behavior and overall functioning”
as shown when he emptied all of the sugar bags and by his drinking too much
coffee, and that he needed to be prompted to shower and to place his dirty clothes
“in a certain location so that laundry can be done.” Based on this history,
combined with K.K.’s continuing lack of insight into the nature of his mental
health condition and its impact on his functioning and judgment, Rooney opined
that K.K. had a high risk of taking illicit substances and needing to be stabilized.

¶23 However, these aspects of Rooney’s report do not allow the County
to meet its burden of proving by clear and convincing evidence that K.K. was at
risk of serious harm to himself or others. Even in his report, Rooney did not
describe what specific symptoms or behaviors occurred or would recur if K.K.
took “illicit substances,” or why he needed or would need “to be stabilized.”

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No. 2024AP1871

Rooney in his testimony did reference K.K.’s having not used illicit substances
since he had been committed in the ninety days before the hearing, but neither
Rooney nor the other witnesses presented evidence showing the harm that did or
would result if K.K. used illicit substances.

¶24 In sum, even when statements in Rooney’s report are taken into
account, the County did not show, by clear and convincing evidence, that K.K.
would, if not protectively placed, be so unable to care for himself as to create a
substantial risk of serious danger to himself or others.

CONCLUSION

¶25 For the reasons stated, we affirm the order for K.K.’s guardianship
of his person and reverse the order for his protective placement.

By the Court.—Order affirmed; order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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