Brown County v. S. F. L. ( 2022 )

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.
December 6, 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. 2021AP975 Cir. Ct. No. 2012GN183
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP
AND PROTECTIVE PLACEMENT OF S. F. L.:
BROWN COUNTY,
PETITIONER-RESPONDENT,
V.
S. F. L.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, 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. 2021AP975
¶1 PER CURIAM. “Stanley”1 appeals an order continuing his
protective placement under WIS. STAT. ch. 55. He argues that Brown County
failed to present sufficient evidence supporting the order. Additionally, Stanley
argues that the circuit court erred by not making specific factual findings on the
record regarding his incompetence. We disagree and therefore affirm the court’s
order.
BACKGROUND
¶2 Stanley has been subject to guardianship and protective placement
orders since 2012 and 2013, respectively. Stanley was originally placed in a
locked unit because of “safety” concerns. In June 2015, however, Stanley moved
to a licensed adult family home. In July 2016, Stanley moved to a community-
based residential facility (CBRF)—his placement at the time of this appeal.
¶3 In December 2020, the County filed another petition to continue
Stanley’s protective placement at the CBRF. As part of this process, both
Sheila DeGrand, with the Brown County Health and Human Services Department,
and Dr. Bradley Allen interviewed Stanley, and their resulting reports were filed
with the circuit court and later admitted into evidence.
¶4 Stanley contested the continuation of his protective placement at the
CBRF, and the circuit court held a hearing on the petition. The County called
Dr. Allen and DeGrand as witnesses. Allen testified that Stanley “has been
diagnosed in the past with schizophrenia” and “[m]ore recently [with]
1
For ease of reading, we use a pseudonym in this confidential matter when referring to
the appellant, S.F.L. See WIS. STAT. RULE 809.81(8) (2019-20). All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.
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No. 2021AP975
schizophrenia affective disorder.” Both witnesses recommended that protective
placement continue at the CBRF because it was the least restrictive environment
for Stanley. DeGrand described the services that Stanley received at the CBRF,
and she testified that Stanley receives “nursing care due to diabetes that requires
blood monitoring as well as medications for his mental illness. He also has staff
that arrange medical appointments for him and arrange transportation to those
appointments to ensure he makes them. He also has meals provided for him.”
¶5 Both witnesses also testified regarding Stanley’s leg amputations
below the knee, which were necessitated because of infections resulting from
Stanley’s self-neglect. According to DeGrand, the infections started in 2011 and
2012, respectively, and at least one of the infections occurred while Stanley was
“in a supported apartment setting [around] the time the guardianship was started.”
According to DeGrand, Stanley had “somehow or another … gone off his
medications or declined to take them.” DeGrand further testified that, according
to some “reports,” Stanley was “pouring urine on [his leg wounds] which caused
them to become worse.” Stanley was also malnourished at the time of at least one
of the amputations, according to DeGrand.
¶6 Stanley also testified. He explained that his primary objective was
to live in his own apartment. Stanley testified that he could do many daily tasks
on his own, including transferring from his wheelchair, cooking for himself, and
conducting his own blood sugar testing. At the close of the evidence, Stanley’s
court-appointed guardian ad litem (GAL) recommended continued protective
placement at the CBRF.
¶7 The circuit court ultimately ordered continued protective placement
at the CBRF. Specifically, the court found that Stanley “does meet the
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standards … for the placement. I do find [the CBRF] is the least restrictive place
that he has and that he’s residing at.” In making its ruling, the court referenced
Stanley’s amputations and said that it “goes to show that he does need this
restrictive placement.” The court explained that it was continuing Stanley’s
placement at the CBRF because: (1) the placement provided Stanley with his
medication; (2) it brought him to his appointments and reminded him when the
appointments were scheduled; (3) it monitored his blood sugar three times a day;
and (4) it provided Stanley with nutritional meals.
¶8 Stanley now appeals. Additional facts will be provided below as
necessary.
DISCUSSION
¶9 A county seeking an order for protective placement over an
individual must satisfy the requirements of WIS. STAT. § 55.08(1) by clear and
convincing evidence. WIS. STAT. § 55.10(4)(d). An annual review of the
protective placement must take place if the county continues to seek protective
placement. WIS. STAT. § 55.18(1)(a); State ex rel. Watts v. Combined Cmty.
Servs. Bd., 122 Wis. 2d 65, 84, 362 N.W.2d 104 (1985) (“We hold that there must
be an annual review of each protective placement by a judicial officer.”).
¶10 To continue protective placement each year, a county must again
satisfy the requirements in WIS. STAT. § 55.08(1). See WIS. STAT. § 55.18(3)(e).
As relevant here, if an individual subject to a protective placement continuation
desires an evidentiary hearing, a Watts hearing must be held. See § 55.18(3)(d);
Watts, 122 Wis. 2d at 85 (“A full due process hearing should be required
whenever the protectively placed individual … requests it.”).
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¶11 A circuit court’s factual findings at a Watts hearing “will not be
overturned unless clearly erroneous.” See Walworth County v. Therese B., 2003
WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377 (citation omitted). “An
appellate court will search the record for evidence to support the [circuit] court’s
findings of fact,” Fond du Lac County v. J.G.S., Jr., 159 Wis. 2d 685, 687-88,
465 N.W.2d 227 (Ct. App. 1990), “not for evidence to support findings the court
could have reached but did not,” Noble v. Noble, 2005 WI App 227, ¶15, 287
Wis. 2d 699, 706 N.W.2d 166. “The issues of whether the evidence satisfies the
legal standard for incompetency and whether the evidence supports protective
placement are questions of law, which we review de novo.” Therese B., 267
Wis. 2d 310, ¶21 (citation omitted).
¶12 Stanley argues on appeal that the County failed to meet its burden of
proof to continue his protective placement. Specifically, Stanley contends the
County failed to show by clear and convincing evidence that he met the
requirements of WIS. STAT. § 55.08(1),2 which, in relevant part, states that a court
may order protective placement for an individual who meets all of the following
standards:
(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
2
Stanley concedes that the County met its burden of proving that he “has a disability that
is permanent or likely to be permanent.” See WIS. STAT. § 55.08(1)(d).
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a substantial risk of serious harm to himself or herself or
others. Serious harm may be evidenced by overt acts or
acts of omission.
¶13 The problem with most of Stanley’s appellate arguments is that he is
essentially asking us to reweigh the evidence as if we were the circuit court.
However, as noted above, our review of factual findings on appeal is limited to
determining whether a circuit court’s factual findings were clearly erroneous; we
do not reweigh the evidence presented to a circuit court. Dickman v. Vollmer,
2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202.
I. WISCONSIN STAT. § 55.08(1)(a): Primary need for residential care and
custody
¶14 Stanley first argues that the County failed to show that he “ha[d] a
primary need for residential care and custody.” See WIS. STAT. § 55.08(1)(a).
“[P]rimary need for residential care and custody” means “the person must have a
primary need (1) to have his or her daily needs provided for in a residential
setting; and (2) to have someone else exercising control and supervision in that
residential setting for the purpose of protecting the person from abuse, financial
exploitation, neglect, and self-neglect.” Jackson Cnty. Dep’t of Health & Hum.
Servs. v. Susan H., 2010 WI App 82, ¶16, 326 Wis. 2d 246, 785 N.W.2d 677.
¶15 In support of his position, Stanley points to his testimony during the
Watts hearing, as well as that of Dr. Allen. For example, Allen testified that
Stanley had “been doing well. He actually is active. He participates in activities.”
Allen also testified that Stanley was stable, did not have “behavioral issues,” and
was “managing his emotions and interactions adequately.” Stanley testified that
he normally did his own diabetes testing, maneuvered in and out of his wheelchair
on his own, and could cook for himself.
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¶16 We disagree with Stanley that the County failed to meet its burden
as to WIS. STAT. § 55.08(1)(a). We first note that Stanley’s citations to
Dr. Allen’s testimony are taken out of context. While Allen did testify that
Stanley was “doing well,” Stanley fails to account for the rest of Allen’s
testimony, in which Allen stated: “Given [Stanley’s] history however, I would be
concerned for him being alone for any length of time and/or I would be concerned
about him going into the community [and] for him to engage in activities that are
not within his ability or that he’s capable of.” Allen further testified that during
his examination of Stanley, Stanley scored in the “severe … deficit range” for his
immediate memory. Allen testified that he was concerned over Stanley cooking
on his own. Allen testified that while he could not definitively say what Stanley
could safely cook, Stanley “exhibits some difficulties with attention and planning
so [he could] perhaps [do] simple meal preparation.”
¶17 Doctor Allen’s report, which was received into evidence, also
outlined Stanley’s need for supervision and his inability to provide for his own
daily needs. In it, Allen noted that “[d]ue to [Stanley’s] physical limitations and
medical needs … [he] requires significant assistance with his activities of daily
living including medication and medical treatment/management.” Further, due to
Stanley’s amputations, he “requires assistance/monitoring with many activities of
daily [tasks] including toileting, dressing, bathing, transferring [to and from his
wheelchair], meals, housekeeping, medication/diabetic management, safety, and
medical care.” As such, Allen concluded in his report that Stanley was in need of
twenty-four-hour supervision, in a secured setting with monitored egress, and
on-site skilled nursing care.
¶18 Stanley also ignores DeGrand’s testimony regarding Stanley’s need
for someone to provide for his daily needs and supervise him to prevent
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No. 2021AP975
self-neglect. For example, DeGrand testified that Stanley receives numerous
services at the CBRF that provide for his daily needs, including prepped meals,
“nursing care due to diabetes that requires blood monitoring as well as
medications for his mental illness,” and medical appointment booking. DeGrand
also testified that Stanley consistently expressed “that he has no desire to take
medications and he would like to discontinue taking medications.” DeGrand
testified that Stanley’s refusal to take medications in the past resulted in the need
to amputate Stanley’s legs.
¶19 Moreover, DeGrand reported that Stanley “requires assistance with
[activities of daily living] such as bathing and dressing. He is mostly independent
with grooming and toileting but is incontinent of bowel at times.” Further, Stanley
ignores the fact that DeGrand testified that, at times, Stanley “does require staff
assistance with [wheelchair] transfer.” Given the testimony from both of the
County’s witnesses, the County met its burden of proof as to WIS. STAT.
§ 55.08(1)(a).
II. WISCONSIN STAT. § 55.08(1)(b): Incompetence
¶20 Stanley next argues that the circuit court did not make a finding
regarding his incompetency, as required under WIS. STAT. § 55.08(1)(b).3 In his
reply brief, Stanley compares the finding of incompetency for purposes of a
continuation of protective placement to the finding of dangerousness in a
3
The circuit court did not expressly address WIS. STAT. § 55.08(1)(b) in its oral ruling.
That said, the court did address the element in its written order titled, “Findings and Order
Continuing Protective Placement/Order for Protective Services (Annual Review of Protective
Placement),” using a standard court form: Form GN-4120 (May 2018). We deem the court’s
finding under § 55.08(1)(b) via the written order adequate, although not ideal. See WIS. STAT.
§ 805.17(2) (“If an opinion or memorandum of decision is filed, it will be sufficient if the
findings of ultimate fact and conclusions of law appear therein.”); see also infra ¶¶24-25.
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recommitment proceeding under WIS. STAT. ch. 51. In Langlade County v.
D.J.W., 2020 WI 41, ¶43, 391 Wis. 2d 231, 924 N.W.2d 277, our supreme court
ruled that in a recommitment proceeding, circuit courts must make “specific
factual findings with reference to the [dangerousness] subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. on which [a] recommitment is based.”4 According to
Stanley, WIS. STAT. ch. 55 proceedings must operate like ch. 51 proceedings in
this regard.
¶21 We agree that a circuit court is required to make specific findings
with regard to incompetency. An individual is incompetent for purposes of WIS.
STAT. § 55.08(1)(b) when a petitioner proves by clear and convincing evidence
that the elements in WIS. STAT. § 54.10(3)(a)5 are met:
1. The individual is aged at least 17 years and 9 months.
2. For purposes of appointment of a guardian of the person,
because of an impairment, the individual is unable
effectively to receive and evaluate information or to make
or communicate decisions to such an extent that the
individual is unable to meet the essential requirements for
his or her physical health and safety.
….
4
We note that Stanley first developed this argument with reference to Langlade County
v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 924 N.W.2d 277, in his reply brief. Therefore, the
County did not have an opportunity to respond specifically to that argument. Under these
circumstances, we could refuse to consider the argument. See A.O. Smith Corp. v. Allstate Ins.
Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (court of appeals generally does not
address arguments raised for the first time in a reply brief). That said, because we ultimately
conclude that the circuit court did make the requisite factual findings, we will address this
argument.
5
WISCONSIN STAT. § 54.10(3)(a)3. is only applicable to incompetency determinations
“[f]or purposes of appointment of a guardian of the estate.” As the County points out on appeal,
§ 54.10(3)(a)3. does not apply to Stanley because he has no guardianship of his estate.
9
No. 2021AP975
4. The individual’s need for assistance in decision making
or communication is unable to be met effectively and less
restrictively through appropriate and reasonably available
training, education, support services, health care, assistive
devices, a supported decision-making agreement under
[WIS. STAT.] ch. 52, or other means that the individual will
accept.
“‘Impairment’ means a developmental disability, serious and persistent mental
illness, degenerative brain disorder, or other like incapacities.” WIS. STAT.
§ 54.01(14).
¶22 As expressly provided in WIS. STAT. § 54.10(3)(a), a circuit court
may find that an individual is incompetent “only if the court finds by clear and
convincing evidence that all of the [subdivisions in § 54.10(3)(a)] are true.”
(Emphasis added.) Put differently, the subdivisions in § 54.10(3)(a) are the
ultimate facts needed to find a person incompetent. See ultimate fact, BLACK’S
LAW DICTIONARY (11th ed. 2019) (“A fact essential to the claim or the defense.”).
Significantly, in all matters tried without a jury, a court “shall find the ultimate
facts and state separately its conclusions of law thereon.” WIS. STAT. § 805.17(2).
¶23 Like our supreme court stated with regard to specific dangerousness
findings, specific incompetency findings “will clarify issues raised on
appeal … and ensure the soundness of judicial decision making, specifically with
regard to challenges based on the sufficiency of the evidence.” See D.J.W., 391
Wis. 2d 231, ¶44. When a circuit court makes specific findings regarding
incompetence, we avoid “conflicting messages from the County and the [court]
regarding the statutory basis for this [protective placement].” See id., ¶40.
Similarly, as Stanley argues on appeal, like in a recommitment proceeding, there
are “important liberty interest[s] at stake” in protective placement proceedings,
which favors requiring specific factual findings of incompetence in order to
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“provide[] increased protection to patients” so that protective placements “are
based on sufficient evidence.” See id., ¶¶42-43.
¶24 That said, we reject Stanley’s argument that the circuit court in this
case failed to make specific factual findings as to his incompetence. The court did
address incompetency in its written order. See supra note 3. There, the court
stated that, “[a]s a result of [a] serious and persistent mental illness[, Stanley] is so
totally incapable of providing for [his] own care or custody to create a substantial
risk of serious harm to [himself] or others.” Furthermore, the court stated that
Stanley “has a disability that is permanent or likely to be permanent.” Therefore,
the court’s findings under WIS. STAT. § 55.08(1)(b) via the written order are
minimally sufficient. See WIS. STAT. § 805.17(2).
¶25 While the circuit court made the minimum factual findings required,
we urge courts to make more detailed findings on the record for two reasons.
First, as we noted previously, there are “important liberty interest[s] at stake” in
protective placement orders. See D.J.W., 391 Wis. 2d 231, ¶43. “Freedom from
physical restraint is a fundamental right that has always been at the core of the
liberty protected by the Due Process Clause from arbitrary governmental action.”
Id., ¶42 (citations omitted). Like hearings under WIS. STAT. ch. 51, hearings to
continue protective placement “cannot be perfunctory under the law. Attention to
detail is important.” See Outagamie County v. Melanie L., 2013 WI 67, ¶94, 349
Wis. 2d 148, 833 N.W.2d 607 (discussing involuntary medication orders).
Second, also noted earlier, specific factual findings will clarify issues raised on
appeal, particularly when an appeal is based on the sufficiency of the evidence.
See D.J.W., 391 Wis. 2d 231, ¶44.
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¶26 Stanley next argues that the County failed to meet its burden of
showing that he was incompetent under WIS. STAT. § 55.08(1)(b).6 Under WIS.
STAT. § 54.10(3), the County was required to prove that Stanley suffers from an
“impairment,” which is defined by WIS. STAT. § 54.01(14) as including a “serious
and persistent mental illness.” “Serious and persistent mental illness” is defined as
including schizophrenia. Sec. 54.01(30). At the Watts hearing, Dr. Allen testified
that Stanley had been diagnosed with schizophrenia affective disorder—which
Allen defined in his report as a “serious and persistent mental illness.” DeGrand
also noted in her report that Stanley suffered from schizophrenia. On this record,
the County clearly met its burden to show that Stanley suffered from at least one
impairment.
¶27 The County was also required to prove that, because of an
impairment, Stanley was “unable effectively to receive and evaluate information
or to make or communicate decisions.” See WIS. STAT. § 54.10(3)(a)2. Stanley
cites to Dr. Allen’s testimony to show that he could effectively receive and
evaluate information and communicate decisions. Stanley again takes Allen’s
testimony out of context. Allen did testify that Stanley had “been doing well. He
actually is active. He participates in activities[,]” and that Stanley did not exhibit
“behavioral issues” and was “managing his emotions and interactions adequately.”
Stanley also cites to his testimony at the Watts hearing for his proposition that the
County did not meet its burden to show that he could not effectively receive and
evaluate information or communicate decisions. For example, Stanley testified
6
Stanley does not expressly concede that the County proved that he was older than
seventeen years and nine months, but both Dr. Allen’s report and DeGrand’s report noted
Stanley’s birthdate which clearly shows that Stanley meets the age requirement. Both of these
reports were admitted into evidence. Therefore, the County met its burden as to this element.
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No. 2021AP975
that he understood his medical needs and demonstrated this understanding by
testifying that he schedules his medical appointments. As the County argues on
appeal, Stanley offers no nexus between this testimony and the statutory
requirement that he could effectively receive and evaluate information or
communicate decisions. In other words, the testimony Stanley cites to does not
equate to the County failing to meet its burden. Simply because Allen testified
that Stanley is, for example, active, does not mean that the County failed to
demonstrate that Stanley is “unable effectively to receive and evaluate information
or to make or communicate decisions.”
¶28 Stanley’s reliance on his own testimony at the Watts hearing does
not lead us to conclude that the County failed to meet its burden under WIS. STAT.
§ 54.10(3)(a)2. In fact, the County met its burden based on Dr. Allen’s testimony
and report. Allen testified about Stanley’s problems with receiving and evaluating
information or communicating decisions, stating that Stanley scored in the
“severe … deficit range” for his immediate memory. Allen’s report specifically
states that Stanley’s mental illness interferes with his ability to receive and
evaluate information. Additionally, Allen testified that Stanley expressed “some
mild perhaps delusional thinking, some grandiosity, perception that he is able to
function at a high[er]-level than he truly is.” The circuit court gave more
credibility and weight to Allen’s testimony and his report’s findings. These
credibility findings are supported by the record and therefore not clearly
erroneous.
¶29 As to the last element of incompetency—i.e., that Stanley’s need for
assistance in decision making or communication is unable to be met through
alternative means, see WIS. STAT. § 54.10(3)(a)4.—Stanley argues that he testified
that he would be open to support services assisting him at a placement less
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No. 2021AP975
restrictive than a CBRF. But both Dr. Allen and DeGrand opined that such
services would not be enough. Specifically, Allen’s report stated that “[d]ue to the
severity of [Stanley’s] limited insight/judgment, less restrictive interventions
would not adequately provide for his safety and personal needs.” Allen further
testified that he would “be concerned [with Stanley] being alone for any length of
time.” Further, DeGrand testified that due to Stanley’s desire not to take his
medication, support services would not be adequate because those services do not
ensure that a patient takes his or her medications.
¶30 The circuit court clearly found Dr. Allen and DeGrand more credible
than Stanley because the court ordered the protective placement to continue, and it
stated that Stanley met “the standards … for the placement,” also making that
factual finding in its written order. The court’s credibility finding is supported by
the record and thus not clearly erroneous. Given the testimony and reports from
both Allen and DeGrand, the County proved by clear and convincing evidence that
Stanley was incompetent.
III. WISCONSIN STAT. § 55.08(1)(c): Incapacity to provide for own care or
custody
¶31 The County was also required to prove, by clear and convincing
evidence, that Stanley met the standard under WIS. STAT. § 55.08(1)(c). In part,
this standard required the County to prove that due to Stanley’s mental illness, he
was incapable of his own care or custody as to create a substantial risk of harm to
himself or others. The term “care” in § 55.08(1)(c) “means that the person’s
incapacity for his or her daily needs creates a substantial risk of serious harm to
the person or others.” Susan H., 326 Wis. 2d 246, ¶17. In addition, the word
“[c]ustody” means “that the person cannot provide for himself or herself the
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protection from abuse, financial exploitation, neglect, and self-neglect that the
control and supervision by others can provide.” Id.¶32 Relying upon his own testimony, Stanley again argues that the
County failed to establish, by clear and convincing evidence, that he could not
care for himself. Once again, Stanley fails to acknowledge Dr. Allen’s testimony
that Stanley could not provide for his own care or custody “primarily because of
his need for support in conjunction with limited insight.” Specifically, Allen
testified that Stanley needed assistance with his wheelchair and general daily
living. DeGrand also testified about Stanley’s need for assistance with daily
living, including assistance with his wheelchair, blood sugar monitoring,
transportation for appointments, and assistance with his medications.
¶33 While the circuit court did not make specific factual findings in its
oral ruling as to this element, it did order the protective placement and made the
requisite findings in its signed order. Given the evidence before the court, the
County met its burden of demonstrating that Stanley could not provide for his own
care or custody.
¶34 Stanley further contends that even if the County adequately
demonstrated that he could not provide care or custody for himself, the County
failed to meet its burden of demonstrating that there was a “substantial risk of
serious harm to himself … or others” because of that inability to provide care or
custody for himself. See WIS. STAT. § 55.08(1)(c). According to Stanley, the
County relied solely on his 2011 and 2012 amputation incidents to meet its burden
of demonstrating risk under § 55.08(1)(c). Stanley phrases the question as
“whether [Stanley’s] act/omission from back in 2012 can indefinitely satisfy the
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No. 2021AP975
[C]ounty’s burden and indefinitely prevent [Stanley] from living more
independently.” He asserts that “[t]he answer to that question has to be ‘no.’”
¶35 Under WIS. STAT. § 55.08(1)(c), the potential harm at issue “may
not be based on mere speculation but 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). Here, the County relied on more than the evidence
of Stanley’s amputations.
¶36 In addition to the 2011 and 2012 amputations, the County provided
evidence that Stanley posed a “substantial risk of serious harm to himself” due to
his inability to provide for himself. Namely, DeGrand testified that Stanley
“decompensate[d]” two years ago after his medications “were changed a little bit.”
Further, as stated previously, DeGrand testified that Stanley had told her that he
would like to stop taking his medications and that this failure could become a
reality if he were placed in an independent setting. According to DeGrand, the last
time Stanley was in an independent apartment setting with support, he suffered
one of the leg amputations due to self-neglect after he stopped taking his
medications. Therefore, contrary to Stanley’s assertion, the County did not rely
solely on the amputations to prove this element—it relied on the fact that Stanley
could easily fall into the same serious health pitfalls that he did in 2011 and 2012
because he still had a desire to stop taking his medications in 2021. The evidence
provides more than “mere speculation” of serious harm, and it is “directly
foreseeable” that if Stanley were placed in an independent apartment or was not
protectively placed, a substantial risk of serious harm would occur to himself.
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IV. WISCONSIN STAT. § 55.12(3): Least restrictive environment
¶37 Lastly, Stanley argues that the County failed to show by clear and
convincing evidence that his placement at a CBRF was the least restrictive
environment. See 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. § 55.18(3)(e)1.
¶38 Instead, Stanley argues that the least restrictive environment would
have been an independent living situation with assistance. In support of this
proposition, Stanley cites to the same testimony that he has repeatedly cited in
support of prior arguments—e.g., that Stanley can take care of himself and to the
extent he required assistance, that he would welcome help at an independent
apartment. Stanley also relies on his testimony stating that Lakeland Care7 told
him that if he lived independently, it would send someone to spend time with him
for “four hours a day, seven days a week.”
¶39 Again, Stanley ignores our standard of review—i.e., we accept the
circuit court’s findings of fact unless they are clearly erroneous. Here, the court
found that Stanley’s current CBRF placement was the least restrictive placement
required because the staff: (1) provided Stanley with his medication; (2) reminded
him of and brought him to his appointments; (3) monitored his blood sugar three
times a day; and (4) provided Stanley with nutritional meals. These findings are
not clearly erroneous because they are supported by the testimony of Dr. Allen and
7
Lakeland Care employed Stanley’s case manager. Stanley testified that Lakeland Care
provided him with “door to door” appointments and transportation to his appointments.
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No. 2021AP975
DeGrand. Based on these findings, the County met its burden to show, by clear
and convincing evidence, that the CBRF was the least restrictive environment for
Stanley.
¶40 Stanley also ignores the evidence that was contrary to his testimony
and that the circuit court found more persuasive. For example, while Dr. Allen
testified that it would be possible for Stanley to live on his own at some point,
Allen also testified that Stanley’s current placement was the least restrictive
environment. This opinion was also noted in Allen’s report. DeGrand similarly
testified, consistent with her report, that Stanley’s current placement was the least
restrictive and that a “step-down” from a CBRF was not appropriate at that time.
One reason for her opinion was Stanley’s desire not to take his medication—
DeGrand explained that support services do not “sit and watch” patients take
medications—and her concern that Stanley would decompensate after not taking
his medications. As noted above, DeGrand also testified that the last time Stanley
was in a supported apartment setting, he went off of his medications, suffered
from an infection in his leg that led to amputation, and became malnourished.
¶41 For the reasons stated, we affirm the order continuing Stanley’s
protective placement.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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