Clark County Community Services v. R. F.

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 1, 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. 2022AP481 Cir. Ct. No. 2018GN7P

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE GUARDIANSHIP AND
PROTECTIVE PLACEMENT OF R.F.:

CLARK COUNTY COMMUNITY SERVICES,

PETITIONER-RESPONDENT,

V.

R. F.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Clark County:
LYNDSEY BRUNETTE, Judge. Reversed and cause remanded with directions.
No. 2022AP481

¶1 BLANCHARD, P.J.1 R.F. appeals a circuit court order continuing
his protective placement in an adult group home pursuant to WIS. STAT.
§§ 55.08(1) and 55.12. R.F. argues in pertinent part that the County failed to
prove by clear and convincing evidence that continued protective placement would
provide the “least restrictive environment … consistent with the needs of” R.F., as
required to support the court’s decision. See §§ 55.08(1), 55.12(3). I conclude
that Clark County Community Services (the County) failed to prove by clear and
convincing evidence that all of the requirements to justify an order for continuing
protective placement were met. Accordingly, I reverse the order.

¶2 R.F. requests in his opening brief on appeal that if this court reverses
the order for continued protective placement in an adult group home I should
“remand this matter to the circuit court with directions to enter an order
transitioning R.F. to protective services.”2 The County fails to respond to R.F.’s

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
Regarding protective services, WIS. STAT. § 55.08(2) provides in pertinent part:

A court may under [WIS. STAT. §] 55.12 order protective
services for an individual who meets all of the following
standards:

(a) The individual has been determined to be
incompetent by a circuit court … and on whose behalf a petition
for a guardianship has been submitted.

(b) As a result of developmental disability, …, serious
and persistent mental illness, or other like incapacities, the
individual will incur a substantial risk of physical harm or
deterioration or will present a substantial risk of physical harm to
others if protective services are not provided.

Neither party suggests that this court has a basis to give any direction to the circuit court as to
particular protective services that the circuit court could or must order following remand. That is
(continued)

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No. 2022AP481

request or to otherwise address the remedy in the event of reversal, which I take as
a concession that R.F.’s requested remedy is appropriate. See Schlieper v. DNR,
188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (“respondents cannot
complain if propositions of appellants are taken as confessed which respondents
do not undertake to refute”). Accordingly, I remand to the circuit court with
directions to enter an order directing that R.F. be transitioned from protective
placement to protective services.3

BACKGROUND

¶3 R.F. is now 22. In February 2018, when he was 17, the County filed
two petitions based on circumstances arising from his alleged cognitive and
developmental disabilities: one for permanent guardianship and a second for an
order of protective placement in a behavioral health facility for minors in Vernon
County. In April 2018, the circuit court determined that he was incompetent and
as a result required a permanent guardianship as a result of a serious and persistent
mental illness and a developmental disability.4 The court also ordered that he be
protectively placed in the Vernon County facility for minors. In January 2020, the

a topic to be addressed by the circuit court following remand, as that court deems appropriate
consistent with Chapter 55 and the Due Process Clause.
3
Briefing in this appeal concluded on August 8, 2022, with no correspondence from the
parties regarding the potential for mootness or a lack of court competency. It does not appear
from the record that the circuit court’s order for continuing protective placement has expired.
Accordingly, R.F.’s requested remedy of reversal and remand with directions is not precluded by
our supreme court’s ruling that, at least with respect to a recommitment order under WIS. STAT.
ch. 51, if the order being reversed has expired, “the circuit court lacks competency to conduct any
proceedings on remand. Therefore, reversal is the appropriate remedy in this case.” Sheboygan
County v. M.W., 2022 WI 40, ¶4, 402 Wis. 2d 1, 974 N.W.2d 733.
4
R.F. does not dispute the permanent guardianship in this appeal.

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No. 2022AP481

location of his protective placement was transferred to an adult group home in
Chippewa County.

¶4 The protective placement came up for annual review in 2021, with
R.F. contesting it at the Watts hearing for which the County petitioned. See State
ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65,
362 N.W.2d 104 (1985) (requiring an annual review of the necessity for a hearing
and, if necessary, a “full due process hearing” addressing the need for continued
protective placement).

¶5 Four witnesses testified at the Watts hearing. Two witnesses
testified to facts and opinions that favored continuing protective placement. Dr.
Brian Stress, a psychologist who examined R.F. before the hearing, emphasized
the view that R.F. is “extremely vulnerable.” Kristofer Geissler, the owner and
caretaker of the adult group home in Chippewa County where R.F. had been most
recently protectively placed, similarly testified in part that R.F. is “a very
vulnerable young man,” who “can be talked into a variety of different things.”

¶6 Two witnesses gave testimony that effectively opposed continuing
protective placement. Dr. Gail Tasch, a psychiatrist who also evaluated R.F.,
testified in part that he has “some limitations” and “initially, he would require
some help to become fully independent,” but also that “[t]here is really no reason
why he should be restricted to the property where he is at[,] at the group home.”
Jennifer Hanson, the owner of a home health care business who ran a group foster
home where R.F. resided for “three and a half to four years” while he was in high
school, testified in part that R.F. “was very independent with all of his” activities
of daily living, “did everyday, normal activities like every other kid in the school,”
and “has got a good head on his shoulders” and “knows right from wrong.”

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No. 2022AP481

¶7 R.F. did not testify.

¶8 After the close of evidence, the County argued that R.F.’s protective
placement should be continued, emphasizing evidence that it submitted showed
that he “is at significant risk of exploitation.” The guardian ad litem agreed that
protective placement should be continued. R.F.’s attorney argued that the County
“has not met [its] burden for showing that protective placement is necessary here,”
but that R.F. “would be amenable” to some protective services.

¶9 The circuit court granted the County’s petition. The court made the
observation that “we want to have [R.F.] be more independent” over time, but
determined that, as of the time of the hearing, R.F.’s “incapacities … still render
[him] incapable of providing for [his] own care and custody, which would create
[a] substantial risk of harm to [himself] or others.”

DISCUSSION

¶10 This court has summarized the pertinent review standards in the
following terms:

[T]he circuit court’s decision on … [protective] placement
involves a determination of … [the] best interests [of the
individual sought to be protectively placed], and … this
determination is committed to the trial court’s discretion.
We affirm discretionary decisions if the circuit court
applies the proper legal standard to the relevant facts and
uses a rational process to reach a reasonable result.
Whether the circuit court applied the correct legal standard
in exercising its discretion presents a question of law,
which we review de novo.

Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d 411, 678 N.W.2d 285
(citations omitted). “The circuit court’s factual findings will not be overturned

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No. 2022AP481

unless clearly erroneous.” Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52
(Ct. App. 1998); see also WIS. STAT. § 805.17(2).

¶11 A circuit court may not order the protective placement of an
individual without first determining that the petitioner (here the County) has
shown by clear and convincing evidence that the individual meets all four
standards in WIS. STAT. § 55.08(1). Coston, 222 Wis. 2d at 22-23; WIS. STAT.
§ 55.10(4)(d). As pertinent here, the four standards are the following:

(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, …,
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).

¶12 There is an additional requirement: A petitioner must show that, in
addition to the four standards just cited, the individual would be protectively
placed “in the least restrictive environment” that meets the needs of the individual.
Even if this is not a requirement of the Due Process Clause, it is required when
multiple chapter 55 provisions are harmonized. Under WIS. STAT. § 55.12(3),
protective placement “shall be provided in the least restrictive environment and in
the least restrictive manner consistent with the needs of the individual to be
protected and with the resources of the county department.” See also WIS. STAT.

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No. 2022AP481

§ 55.08(1) (court may order protective placement “under s. 55.12”). This is
reinforced by the “Declaration of policy” in Chapter 55, which states in pertinent
part:

The legislature recognizes that many citizens of the state,
because of serious and persistent mental illness, …,
developmental disabilities, or other like incapacities, are in
need of protective services or protective placement.… This
chapter is designed to establish those protective services
and protective placements, to assure their availability to all
individuals when in need of them, and to place the least
possible restriction on personal liberty and exercise of
constitutional rights consistent with due process and
protection from abuse, financial exploitation, neglect, and
self-neglect.

WIS. STAT. § 55.001 (emphasis added). In addition, the County on appeal does not
dispute that due process and chapter 55 are not satisfied if the petitioner fails to
show this requirement by clear and convincing evidence.5

¶13 Whether the evidence supports protective placement is an issue of
law that I review de novo. Walworth Cnty. v. Therese B., 2003 WI App 223, ¶21,
267 Wis. 2d 310, 671 N.W.2d 377.

¶14 For purposes of this appeal, R.F. does not dispute that the County
proved standards (b) and (d) of WIS. STAT. § 55.08(1).6 He argues that the County

5
I note that in 2005 Wis. Act 253, 264, and 387, the legislature recodified Chapter 55,
with one of many consequences being the amendment of WIS. STAT. § 55.06 to eliminate
subsection (9), which explicitly stated that a circuit court could order protective placement of an
individual only in “the least restrictive environment consistent with the [individual’s] needs.” See
§ 55.06(9) (2003-04); see also K.N.K. v. Buhler, 139 Wis. 2d 190, 197-98, 407 N.W.2d 281 (Ct.
App. 1987) (applying this rule from § 55.06(9)). I interpret the legislature to have left in place
this same rule through the 2005 amendments, based on the statutes cited in the text.

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No. 2022AP481

failed to prove standards (a) and (c) by clear and convincing evidence. That is, he
argues that the County failed to present sufficient evidence on which the circuit
court could properly rely to determine that he “has a primary need for residential
care and custody,” or that his mental illness has resulted in him being “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 others.” See § 55.08(1)(a), (c).

¶15 R.F. takes the position that, so far as the evidence presented to the
circuit court revealed, features of the guardianship (which, to repeat, R.F. does not
contest) that include protection of his person and estate, together with court-
ordered protective services, “such as a nurse periodically checking to see if he is
taking his medications correctly,” could be adequate to help R.F., if he were no
longer in protective placement, to “provid[e] for his … own care or custody” and
avoid “substantial risk of serious harm to himself … or others.” This argument
was preserved in the circuit court. Counsel for R.F. took the position that
“something lesser,” such as protective services, would be adequate to meet R.F.’s
needs.

¶16 The County on appeal does not direct me to evidence presented at
the annual review hearing bearing on the existence or non-existence of alternatives
that could have met R.F.’s needs and that would have involved less restriction than
24/7 placement in an adult group home. Instead, the County makes two assertions

6
For context regarding WIS. STAT. § 55.08(1) standards (b) and (d), I note that Dr. Stress
stated in a report admitted at the annual review hearing, partially quoting from medical history,
that R.F. has as a “mild intellectual disability” and a serious and persistent mental illness,
“supported by the diagnosis of ‘bipolar disorder, mood disorder due to known physiological
condition with fixed features.’”

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No. 2022AP481

regarding R.F.’s argument, neither of which is responsive. First, the County states
the following:

Any argument that R.F. could be placed in a lesser
restrictive setting is not well[]developed. Dr. Stress
supports 24-hour supervision in an [adult family home]
based on R.F.’s incapacities. Mr. Geissler similarly
supports continued placement in the [adult family home]
based on the assistance and reminders R.F. requires with
basic daily activities, as well as his concerns regarding the
risks to R.F. and others if he does not have the supervision
and support the [adult family home] offers.

I disagree that R.F.’s argument is insufficiently developed. The concept is not
complicated or obscure, and R.F. makes concrete assertions about allegedly
unrebutted evidence that the County simply ignores. Then, in this paragraph, the
County proceeds to provide mere summaries of conclusions, not on-point
arguments based on the evidentiary record or specific facts found by the circuit
court.

¶17 Second, the County posits that “this entire argument” “hang[s]” “on
the testimony of Ms. Hanson” against continuing the protective placement. I
disagree that this argument depends entirely on Hanson’s testimony. The thrust of
R.F.’s argument is that the County failed to present clear and convincing evidence
to merit continued protective placement, including proof that this is the “least
restrictive environment” required to address R.F.’s needs.7

7
Further, the circuit court explicitly declined to “discredit” Hanson’s testimony, in
which she purported to describe her views of the strengths of capacity, character, and habit on
which R.F. could rely under various degrees of restriction. The court noted that her testimony
was “subjective” and more dated than the testimony of Dr. Stress and Geissler, but it did not find
that Hanson was not credible.

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No. 2022AP481

¶18 Indeed, as R.F. argues in reply, this position by the County in effect
improperly attempts to flip the burden of proof. That is, the County suggests that
it was R.F.’s burden to show to the circuit court how the evidence supports the
conclusion that continued protective placement would not provide the least
restrictive environment for R.F.’s needs (i.e., that R.F. had to prove the existence
of a less restrictive set of alternatives). This improper orientation appears to be
reflected at points in the County’s briefing.

¶19 The County argues (somewhat ambiguously): “With the less rigid
routine of his current adult family home …, R.F. has not demonstrated the same
ability to provide for his own care or custody.” It was not R.F.’s obligation to
demonstrate an ability to care for himself in the absence of any types of
restrictions. It was for the County to demonstrate that the “least restrictive
environment” is protective placement. The County misses the target if its position
is that it was enough to show that R.F. would do less well—even very much less
well—living in the community without any support, as compared with living in
the protective placement. A meaningful assessment of the potential for less
restrictive alternatives to protective placement would have to include discussion of
specific alternatives and their likelihood of success (or why success was unlikely).
In sum, there appears to have been no exploration by the parties and the circuit
court how care might be provided for this young man in a residential setting other
than the protective placement.8

8
The County appears to have gotten off track at a key point during the hearing. After
Dr. Stress testified to his (unexplained) conclusion that the protective placement would be R.F.’s
“least restrictive environment,” the County followed up with the following questions:

Q. Would an adult family home, as long as the right
precautions were in place, would that potentially meet his needs?
(continued)

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No. 2022AP481

¶20 Said in more general terms, it is fatal to the County’s argument that
it completely fails to account for the following possibility: that R.F. was incapable
of providing for his own care or custody when not provided some kind of
protection under WIS. STAT. ch. 55 or his guardianship, but that he could do so
with some combination of restrictions or protections that do not include protective
placement specifically.

¶21 Turning to the circuit court’s oral ruling, the court said in a
conclusory manner that “[t]he adult family home is still the least restrictive
environment consistent with [R.F.’s] needs,” without explaining on what basis the
court made this determination. The closest the court may have come to an
explanation was the following somewhat vague statement, which did not address
evidence regarding any concrete alternatives to support R.F. when he was,
theoretically, not in protective placement. The court characterized Dr. Stress as
having testified that, if R.F. “were to step up and start showing … responsibility”
for setting “an alarm,” then doing “chores,” making breakfast, and “liv[ing] kind
of a more structured life,” “on a consistent basis,” then that “might be enough to
warrant [Dr. Stress] changing his recommendations to a more step-down in
restrictiveness to something more independent.” The court did not explain why it

A. Yes.

Q. So would you support continued placement in his
current placement?

A. Yes.

Instead of asking Dr. Stress to explain and support his conclusion about protective placement
being the least restrictive environment, the County directed him to a different topic, namely,
whether R.F.’s needs could be met in the protective placement. This line of questioning failed to
show that less restrictive options could not also meet R.F.’s needs.

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No. 2022AP481

would necessarily be true that less restrictive means could not result in “a more
structured life” for R.F.

¶22 However, the County’s failure to address the substance of the
argument and the court’s failure to squarely address the topic based on record
evidence are not necessarily dispositive. If a circuit court does not explain the
reasoning behind a discretionary decision, “we may,” and ordinarily do, “search
the record to determine if it supports the court’s discretionary decision.” See
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737;
Brezinski v. Barkholtz, 71 Wis. 2d 317, 327, 237 N.W.2d 919 (1976).

¶23 Searching the record for evidence on this topic that could support the
court’s discretionary determination, I locate only the following. First, Dr. Stress
made a conclusory, unexplained assertion that R.F.’s “least restrictive environment
would be in a facility that provides him with 24-hours-a-day[,] seven-days-a-week
supervision in a secured setting with monitored egress.”9 Second, Dr. Stress
offered the general opinion that “if [R.F.] puts forth effort, maybe he could
demonstrate” an ability to “complete his activities of daily living,” to “manag[e]
his money appropriately,” “to wash his clothing,” and to “not participat[e] in
vulnerable activities such as being on the internet,” this “could result in a less
restrictive environment and intervention in the future.” However, as with the

9
The only direct statement on this topic in Dr. Stress’s written report, which was
admitted as evidence at the annual review hearing, was stated in the same conclusory terms:

It is this psychologist’s opinion, to a reasonable degree of
psychological certainty[,] that [R.F’s] least restrictive
environment is to be placed in a facility that provides him with
24 hours a day, seven days a week supervision, in a secure
setting with monitored egress.

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No. 2022AP481

circuit court’s similar conclusion quoted above, this did not address evidence
regarding any concrete alternatives to protective placement.

¶24 It is true that, as summarized above, both of the pro-protective
placement witnesses and the circuit court addressed not only R.F.’s deficits in his
ability to engage in the activities of daily living, but in particular emphasized
R.F.’s forms of vulnerability to persons who might take advantage of R.F. or cause
him to fall into self-destructive habits. However, as far as the County now argues
and the record self-evidently reveals, there was no evidence before the circuit
court on the topic of whether less restrictive forms of protection for R.F. than
protective placement could address the vulnerability side of the equation. Thus,
the parties and the circuit court apparently never engaged in concrete discussion of
whether the available and affordable alternatives to protective placement might be
sufficient.

¶25 The circuit court here was presented with conflicting expert opinions
on various issues, and I must defer to the finder of fact’s assessments of credibility
and assignment of weight to various pieces of evidence. But so far as the County
explains, or our review of the record reveals, the court was not presented with any
evidence, much less evidence rising to the level of being clear and convincing,
directly bearing on the issue of whether the protective placement was “the least
restrictive environment.” It was the County’s obligation to adduce evidence on
this topic; the court’s determination cannot be based on speculation or
assumptions about the facts. See State v. Salas Gayton, 2016 WI 58, ¶19, 370
Wis. 2d 264, 882 N.W.2d 459 (“An exercise of discretion ‘contemplates a process
of reasoning. This process must depend on facts that are of record or that are
reasonably derived by inference from the record and a conclusion based on a
logical rationale founded upon proper legal standards.’” (emphasis added; quoted

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No. 2022AP481

source omitted)); McCleary v. State, 49 Wis. 2d 263, 277, 282, 182 N.W.2d 512
(when a circuit court failed to provide adequate reasoning or explanation for a
discretionary decision it “fail[ed] to exercise discretion”; “[d]iscretion is not
synonymous with decision-making”). The County fails to develop an argument
that the circuit court had an evidentiary basis from various pieces of testimony to
reasonably infer that protective placement is the “least restrictive environment.” I
note that this would have required the County, at a minimum, to direct this court to
specific evidence addressing less restrictive modes of protection. I would have to
abandon my neutral role to attempt to construct such an argument, which I cannot
do.

¶26 In sum, the County fails to show that it met its burden at the annual
review hearing to present clear and convincing evidence that the “least restrictive
environment” requirement was met.

CONCLUSION

¶27 For all of these reasons, the October 20, 2021 order for protective
placement is reversed, and this case is remanded to the circuit court with directions
to enter an order allowing R.F. to transition to protective services.

By the Court.—Order reversed and cause remanded with directions.

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

14