Waukesha County DH&HS v. M. A. S. ( 2023 )

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.
March 22, 2023
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. 2022AP877 Cir. Ct. No. 2022GN58
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT
OF M.A.S:
WAUKESHA COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
M.A.S.,
RESPONDENT,
R.B.,
OTHER PARTY-APPELLANT.
APPEAL from an order of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Dismissed.
No. 2022AP877
¶1 NEUBAUER, J.1 R.B., referred to herein by the pseudonym Rose,
appeals from an order granting a petition for protective placement over her
mother, M.A.S., referred to herein as Mary. Rose argues that her mother’s due
process rights were violated at the hearing on the petition and that the Waukesha
County Department of Health and Human Services did not present evidence
sufficient to show that her mother was in need of protective placement. This court
cannot reach the merits of these arguments, however, because Rose lacks standing
to appeal the order. WISCONSIN STAT. § 55.20 provides that “[a]n appeal may be
taken to the court of appeals from a final judgment or final order” under WIS.
STAT. ch. 55 “by the subject of the petition or the individual’s guardian, by any
petitioner, or by the representative of the public.” Rose is not one of the persons
authorized by the statute to bring an appeal, and her status as an “[i]nterested
person” in this proceeding does not permit her to appeal the order. See WIS. STAT.
§ 55.01(4). Additionally, Rose is not otherwise “aggrieved” sufficient to confer
standing. Thus, her appeal must be dismissed.
BACKGROUND
¶2 In March 2022, the County filed a petition for protective placement
of Mary under WIS. STAT. ch. 55 and a petition seeking the appointment of a
guardian under WIS. STAT. ch. 54. The County alleged that Mary had been
diagnosed with a “Major Neurocognitive disorder … with behavioral
disturbances,” had been “living in a car or staying at a motel” for the last three
years despite owning two homes, “ha[d] not taken care of herself physically or
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
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No. 2022AP877
addressed her multiple medical conditions,” and was “at significant risk of harm
and requires [twenty-four-]hour care and supervision for her safety.” Rose, one of
Mary’s three daughters, did not file an objection to either petition.
¶3 Counsel was appointed to represent Mary, and after an initial
hearing, a court commissioner appointed a nonfamily member to be her temporary
guardian. The circuit court held a final hearing on the petitions on April 7, 2022.
Mary’s guardian waived her appearance. Rose and Mary’s two other daughters
testified at the hearing. When asked to confirm that she did not oppose a
guardianship for her mother, Rose replied, “I would like for my sister, my two
sisters to [be coguardians].” Rose was not asked any questions about the issue of
protective placement.
¶4 At the conclusion of the hearing, the court found that the County had
met its burden of showing that protective placement and the appointment of a
permanent guardian were appropriate. The court subsequently entered two orders,
one appointing separate guardians of Mary’s person and estate (neither of which
were Rose’s sisters) and the other granting protective placement over Mary.
¶5 After entry of these orders, an attorney filed an appearance for Rose
and a notice of appeal “from the Order on Petition for Protective Placement or
Protective Services.” Mary, who was represented by counsel and has a guardian,
has not appealed from either order.
¶6 The County filed a motion to dismiss Rose’s appeal, arguing that she
lacks standing to appeal the protective placement order under WIS. STAT. § 55.20
and that she did not timely file a notice of intent to pursue postdisposition relief as
required by WIS. STAT. RULE 809.30(2)(b). This court addressed the County’s
motion in an order dated October 7, 2022. As a preliminary matter, this court
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No. 2022AP877
concluded that Rose’s appeal is limited to the protective placement order because
her notice of appeal “does not refer, in any way, to the [WIS. STAT.] ch. 54
guardianship order.” This court then denied the County’s motion but directed the
parties to brief several issues related to Rose’s ability to bring this appeal.
¶7 First, this court ordered the parties to address whether WIS. STAT.
§ 55.20 bars Rose’s appeal. More specifically, the parties were directed to address
whether the word “may” in § 55.20 suggests that persons other than those listed in
the statute can appeal a protective placement order. In addition, this court directed
the parties to address “the significance, if any, of the provisions of … § 55.20 and
the ‘interested person’ definition in WIS. STAT. § 55.01(4)(a).” Finally, the parties
were ordered to address whether, “[s]etting aside … § 55.20, [Rose is] aggrieved
such that she has standing to appeal the … protective placement order.”2 Having
received the parties’ briefs, this court now concludes that Rose is not authorized to
appeal under § 55.20 and is not otherwise “aggrieved” to confer standing.
DISCUSSION
I. Rose Is Not Authorized to Appeal the Order Under WIS. STAT.
§ 55.20.
¶8 WISCONSIN STAT. § 55.20 addresses appeals of final orders and
judgments in protective placement and protective services proceedings. Whether
Rose has standing to maintain this appeal turns on the meaning of § 55.20.
2
The order also directed the parties to address whether Rose was “required to comply
with WIS. STAT. RULE 809.30.” Because this court concludes that Rose lacks standing to appeal
the protective placement order, we need not address this issue. See Sweet v. Berge, 113 Wis. 2d
61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one issue is dispositive of an appeal, this court
need not reach other issues).
4
No. 2022AP877
Statutory interpretation is a legal issue that this court resolves de novo. Coston v.
Joseph P., 222 Wis. 2d 1, 10, 586 N.W.2d 52 (Ct. App. 1998).
¶9 WISCONSIN STAT. § 55.20 reads as follows:
An appeal may be taken to the court of appeals from a final
judgment or final order under this chapter within the time
period specified in [WIS. STAT. §] 808.04(3) and in
accordance with [WIS. STAT. RULE] 809.30 by the subject
of the petition or the individual’s guardian, by any
petitioner, or by the representative of the public.
Section 55.20 went into effect in April 2006; before then, the text of the statute
(with minor differences not relevant here) was located in WIS. STAT. § 55.06(18)
(2003-04). See 2005 Wis. Act 264, § 155.
¶10 When interpreting statutory language, our aim “is to determine what
the statute means so that it may be given its full, proper, and intended effect.”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d
633, 681 N.W.2d 110. To do so, this court gives the language “its common,
ordinary, and accepted meaning, except that technical or specially-defined words
or phrases are given their technical or special definitional meaning.” Id., ¶45.
This court interprets statutory language “in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
Id., ¶46. “If this process of analysis yields a plain, clear statutory meaning, then
there is no ambiguity, and the statute is applied according to this ascertainment of
its meaning.” Id. (citation omitted).
¶11 WISCONSIN STAT. § 55.20 identifies four persons who may appeal a
protective placement order: (1) “the subject of the petition”; (2) “the individual’s
guardian”; (3) “any petitioner”; or (4) “the representative of the public.” Id. Rose
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No. 2022AP877
does not (and cannot) argue that she is one of these persons. Instead, she contends
that the word “may” in the statute suggests that persons other than those identified
in the statute can bring an appeal and that she, as an “[i]nterested person” under
WIS. STAT. § 55.01(4), is such a person.3
¶12 This court disagrees. As in other statutes, the word “may” is used in
WIS. STAT. § 55.20 to confer opportunity or permission to take an action. See
Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810
N.W.2d 465 (“The word ‘may’ is ordinarily used to grant permission or to indicate
possibility.”). In § 55.20, the verb phrase “may be taken” conveys permission (or
an opportunity) to appeal a final judgment or order in a chapter 55 proceeding.
And though the statute is written in the passive voice, the legislature did not leave
the actors who are given that opportunity undetermined. To the contrary, in the
latter portion of the statute, it specifically identified the four persons who can
bring an appeal. Doing so is evidence of the legislature’s intent not to extend the
appeal right to others. See State v. Dylan S., 2012 WI App 25, ¶26, 339 Wis. 2d
442, 813 N.W.2d 229 (“Where a statute lists items included in its purview,
omission of an item is evidence that the legislature intended to exclude it.”). This
court sees nothing in the text of the statute itself to support Rose’s contention that
the legislature’s use of the word “may” signifies its intent to extend the statutory
right to appeal to persons other than those identified in the statute.
¶13 This court must also interpret WIS. STAT. § 55.20 in relation to
“surrounding or closely-related statutes.” See Kalal, 271 Wis. 2d 633, ¶46. The
3
The County does not dispute that Rose, an adult child of Mary, is an “[i]nterested
person” under WIS. STAT. § 55.01(4). This court agrees. See § 55.01(4)(a) (“‘Interested person’
means … [a]n adult relative or friend of an individual sought to be protected under this chapter.”).
6
No. 2022AP877
County cites several other provisions in WIS. STAT. ch. 55 in which the word
“may” is used in the permissive sense to empower specifically identified actors to
take some action. See, e.g., WIS. STAT. § 55.15(2) (identifying persons who “may
transfer an individual under a protective placement order”); WIS. STAT. § 55.16(2)
(identifying persons who “may file a petition … for modification of an order for
protective services or protective placement”); WIS. STAT. § 55.17(1) (identifying
persons who “may file a petition at any time for termination of an order for
protective placement or protective services”). Although these statutes are written
in the active (as opposed to passive) voice, they reflect a common usage of “may”
throughout chapter 55 to confer permission to take a particular action on the
persons listed in the statute.
II. Rose’s Status as an “Interested [P]erson” Does Not Give Her the
Right to Appeal.
¶14 Rose relies on her status as an “[i]nterested person” under WIS.
STAT. § 55.01(4), but that status undercuts her argument for standing more than it
helps. Chapter 55 specifically empowers interested persons to take specific
actions in protective placement proceedings. In particular, an interested person
may:
(1) “request[] protective services on behalf of an individual
in need of services,” WIS. STAT. § 55.05(2)(b), or “file a
petition for appointment of a guardian and for
protective services or protective placement for an
individual,” WIS. STAT. § 55.075(1);
(2) request that the hearing on a protective placement
petition be moved to a different location so that the
individual who is the subject of the petition can attend,
WIS. STAT. § 55.10(2);
(3) “file a petition … objecting to a proposed transfer or to
an emergency transfer” of an individual subject to a
protective placement order, WIS. STAT. § 55.15(6);
7
No. 2022AP877
(4) “file a petition … for modification of an order for
protective services or protective placement,” WIS.
STAT. § 55.16(2)(a); and
(5) “file a petition … for termination of an order for
protective placement or protective services,” WIS.
STAT. § 55.17(1).
In each of these provisions, the legislature included the term “interested person” to
signify that such a person may take the specified action. Notably, the legislature
provided the opportunity for appeal of an adverse decision by those empowered to
take such actions as a “petitioner” under WIS. STAT. § 55.20. In contrast, the
legislature did not include an interested person among those in § 55.20 who may
appeal a protective placement order, though it could have done so.
¶15 When these statutes are viewed together, it becomes apparent that
the legislature has taken care to identify the actors who can take certain actions in
relation to proceedings under WIS. STAT. ch. 55. Given the express inclusion of
“interested person” in the provisions listed above, the absence of that term in WIS.
STAT. § 55.20 is significant evidence that the legislature did not intend an
interested person to be able to appeal a chapter 55 order.
¶16 This court’s decision in Knight v. Milwaukee County, 2001 WI App
147, 246 Wis. 2d 691, 633 N.W.2d 222, rev’d on other grounds, 2002 WI 27, 251
Wis. 2d 10, 640 N.W.2d 773 (Knight I), provides additional guidance that merely
being an “interested person” does not confer standing to appeal a protective
placement order. In that case, two persons who served as a ward’s “power-of-
attorney agents” and described themselves as “interested persons” sought to appeal
orders appointing a guardian for the ward and directing her protective placement.
Knight I, 246 Wis. 2d 691, ¶1. This court held that the agents lacked standing to
appeal the orders under a probate statute, WIS. STAT. § 879.27. Knight I, 246
8
No. 2022AP877
Wis. 2d 691, ¶1. Our supreme court reversed after concluding that the agents did
have standing under that statute. Knight v. Milwaukee County, 2002 WI 27, ¶1,
251 Wis. 2d 10, 640 N.W.2d 773 (Knight II). But this court in Knight I also
examined whether the agents had standing to appeal under WIS. STAT. § 55.06(18)
(1999-2000), the predecessor to WIS. STAT. § 55.20. On that issue, this court
concluded that the agents did not have standing because they had not filed the
petition seeking protective placement over the ward and thus were not
“petitioner[s]” under the statute. Knight I, 246 Wis. 2d 691, ¶22. Notably, this
court did not conclude that the agents could bring the appeal merely because they
were interested persons; they had to be one of the persons authorized in
§ 55.06(18) (1999-2000). See Knight I, 246 Wis. 2d 691, ¶22. The Wisconsin
Supreme Court did not address this conclusion in its decision but instead expressly
limited its holding to § 879.27. Knight II, 251 Wis. 2d 10, ¶19 n.5. Accordingly,
this court’s analysis of § 55.06(18) (1999-2000) in Knight I retains precedential
value. See State v. Schmidt, 2016 WI App 45, ¶48 n.11, 370 Wis. 2d 139, 884
N.W.2d 510 (“[T]he general rule is that holdings of [the court of appeals] not
specifically reversed on direct appeal to the supreme court retain precedential
value.”).
¶17 Rose’s argument regarding her “[i]nterested person” status is
grounded in two cases decided by this court, Coston, 222 Wis. 2d 1, and Carla S.
v. Frank B., 2001 WI App 97, 242 Wis. 2d 605, 626 N.W.2d 330.4 In Coston,
4
Rose cites and extensively discusses Carla S. v. Frank B., 2001 WI App 97, 242
Wis. 2d 605, 626 N.W.2d 330, for the first time in her reply brief, leaving the County without an
opportunity to respond. For this reason, this court could decline to address the case. See
Techworks, LLC v. Wille, 2009 WI App 101, ¶28, 318 Wis. 2d 488, 770 N.W.2d 727. However,
for the sake of completeness, this court will address it.
9
No. 2022AP877
two interested persons—the niece and sister of Joseph P.—appealed from orders
appointing guardians for Joseph and ordering protective placement. Coston, 222
Wis. 2d at 4. The niece and sister argued that, as “[i]nterested person[s]” under a
guardianship statute, WIS. STAT. § 880.01(6) (1995-96),5 they had the right to
participate at the circuit court hearing on the petitions and to object to the court’s
reliance on certain evidence. Coston, 222 Wis. 2d at 4, 6. They argued that the
circuit court erred in not holding a full evidentiary hearing on the merits of the
petitions. Id.¶18 To address these arguments, this court examined the rights of
interested persons in guardianship and protective placement proceedings.
Specifically, this court identified certain rights conferred upon interested persons
in the guardianship statutes but noted that “[n]o statute provides for interested
persons to demand a trial, present evidence, or raise evidentiary objections in
guardianship and protective placement hearings—whether contested or
uncontested.” Id. at 21.6 Accordingly, this court concluded that no statute or case
law “provides interested persons with unlimited rights to participate in the
hearing.” Id. at 12-13 & n.8. Though “the statutory provisions for an interested
person’s formal participation in guardianship and protective placement hearings
are specific and limited,” this court recognized that the circuit court retained
5
WISCONSIN STAT. § 880.01(6) (1995-96) was subsequently repealed, and the definition
of “[i]nterested person” was amended and relocated to WIS. STAT. § 54.01(17). See 2005 Wis.
Act 387, §§ 100, 300.
6
See also WIS. STAT. § 55.10(4)(c) (permitting only the individual who is the subject of
a protective placement hearing, the individual’s attorney, and the individual’s guardian ad litem
“to present and cross-examine witnesses” at a hearing on a petition for protective services or
protective placement).
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No. 2022AP877
“discretion to allow interested persons to participate [in a hearing] to the extent it
would deem appropriate.” Id. at 21.
¶19 Three years later, in Carla S., this court considered an appeal
brought by the daughter of a ward who sought review of an order authorizing her
father’s guardian to terminate the father’s life estate in his home. Carla S., 242
Wis. 2d 605, ¶1. The circuit court determined that the daughter had standing to
contest the order because she was an “[i]nterested person” under WIS. STAT.
§ 880.01(6) (1997-98), which accorded that status to an “adult relative … of a
person to be protected” under the guardianship statute. Sec. 880.01(6) (1997-98);
Carla S., 242 Wis. 2d 605, ¶4. The guardian challenged the daughter’s standing to
bring the appeal. Carla S., 242 Wis. 2d 605, ¶4. In a split decision, this court
concluded that the daughter had standing. Id., ¶10.
¶20 In reaching that conclusion, the majority reviewed some of the
common law standards governing standing, including the “appellate requirement
that the right to appeal is limited to persons ‘aggrieved’ by a final judgment or
order.” Id., ¶6 (quoting Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217,
418 N.W.2d 14 (Ct. App. 1987)). The majority then observed that “[i]t would be
strange indeed if a person who has been recognized by the legislature as an
‘interested person’ and whose standing has been recognized by the trial court,
would nonetheless lack standing to appeal the very determination for which he or
she had standing in the trial court.” Carla S., 242 Wis. 2d 605, ¶6.
¶21 Finally, the majority explained that “interested persons have been
judicially recognized as having standing in appellate courts.” Id. In support, it
cited Bryn v. Thompson, 21 Wis. 2d 24, 123 N.W.2d 505 (1963), a guardianship
case in which our supreme court stated that “[i]n addition to a direct appeal of the
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No. 2022AP877
initial order, any interested party at any time during the guardianship may petition
for a rehearing seeking revocation of the guardian-ward status.” Carla S., 242
Wis. 2d 605, ¶7 (quoting Bryn, 21 Wis. 2d at 29). The Carla S. majority then
cited this court’s decision in Coston, which it said had “affirmed” the
aforementioned statement in Bryn. Carla S., 242 Wis. 2d 605, ¶7. Though
nothing in Coston indicates that any party challenged the ability of the interested
persons to appeal the guardianship and protective placement orders, the majority
in Carla S. stated that this court “would have dismissed the appeal” in Coston if it
had “concluded … that the [interested persons] lacked standing.” 7 Carla S., 242
Wis. 2d 605, ¶7.
¶22 None of these cases establishes Rose’s right to appeal the protective
placement order. The discussion in Coston focused on the rights of interested
persons to participate in proceedings held in the circuit court. In that discussion,
this court focused primarily on rights afforded to interested persons under the
guardianship statutes, which were then codified in subchapter I of WIS. STAT.
ch. 880 (1995-96). See Coston, 222 Wis. 2d at 11-13 & n.8, 20-22.8 This court
7
The dissenting judge in Carla S. noted that the standing of the interested persons in
Coston “was apparently not challenged” and that the court in Coston did not specifically address
the issue of standing. Carla S., 242 Wis. 2d 605, ¶22 (Deininger, J., dissenting). The dissent
concluded further that the daughter was not “aggrieved by the order authorizing her father’s
guardian to terminate the life lease” because she was not statutorily entitled to notice of, or to
participation in, proceedings to terminate the life lease and because her arguments on appeal
“relate[d] to alleged violations of [her father]’s rights and interests—not hers.” Id., ¶¶23-24.
8
Notably, the legislature subsequently codified Coston’s holding, adding a provision to
the guardianship statute which provides that “[a]n interested person may participate in the hearing
on the petition at the court’s discretion.” WIS. STAT. § 54.44(5m); see also 2005 Wis. Act 264,
§ 207 (acknowledging in a legislative note that the text currently found in § 54.44(5m) was
enacted to codify the holding in Coston). There was no modification of WIS. STAT. § 55.20 to
recognize a right to appeal by an interested person. See Strenke v. Hogner, 2005 WI 25, ¶28, 279
Wis. 2d 52, 694 N.W.2d 296 (“The legislature is presumed to act with full knowledge of existing
case law when it enacts a statute.”).
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No. 2022AP877
did not cite any specific rights granted in the chapter governing protective
services, WIS. STAT. ch. 55. Moreover, no party in Coston appears to have cited
WIS. STAT. § 55.06(18) (1995-96), the predecessor to WIS. STAT. § 55.20, or even
questioned the interested persons’ standing to appeal the guardianship and
protective placement orders. And because standing “is not a matter of jurisdiction,
but of sound judicial policy” in Wisconsin, Friends of Black River Forest v.
Kohler Co., 2022 WI 52, ¶17, 402 Wis. 2d 587, 977 N.W.2d 342 (citation
omitted), this court did not need to raise the issue sua sponte before reaching the
substantive issues raised by the parties. See Waushara County v. Graf, 166
Wis. 2d 442, 451, 480 N.W.2d 16 (1992) (explaining that “appellate courts need
not and ordinarily will not consider or decide issues which are not specifically
raised on appeal”).
¶23 Bryn and Carla S. also do not control the outcome here. Both of
those decisions arose out of guardianship proceedings; neither involved WIS.
STAT. ch. 55. Though the procedures that govern guardianship and protective
placement proceedings are similar in some respects, see, e.g., Racine County v.
P.B., 2022 WI App 62, ¶¶12-13, 405 Wis. 2d 383, 983 N.W.2d 721, the
guardianship statutes in effect when this court decided Carla S. (WIS. STAT.
§§ 880.01-.39 (1997-98)) lacked a provision similar to WIS. STAT. § 55.20 that
identified the persons who could appeal a guardianship order. No such provision
has been added to the guardianship statute since Carla S. Thus, the language
regarding the standing of interested persons to appeal in Bryn and Carla S. is best
understood as applying only to guardianship proceedings and not to protective
placement actions under chapter 55.
¶24 We further note that Wisconsin courts must also interpret statutory
language “to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46.
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No. 2022AP877
Rose fails to explain why a conclusion that she may not appeal the protective
placement order under WIS. STAT. § 55.20 would be absurd or unreasonable. The
legislature could reasonably decide to extend to an “interested person” the right to
take certain actions in WIS. STAT. ch. 55 proceedings but not to appeal a
chapter 55 order unless the interested person is a petitioner. As noted above, the
legislature provided adult relatives and even friends the opportunity to petition the
circuit court to initiate a protective placement proceeding as well as to modify or
terminate a protective placement order. Thus, an adult relative or friend has other
avenues to pursue, should those options be appropriate. Moreover, our supreme
court has affirmed “that the constitution requires that individuals who are
protectively placed under [chapter] 55 receive periodic, automatic judicial review
of their placement[s].” Knight II, 251 Wis. 2d 10, ¶47; see also WIS. STAT.
§ 55.18; State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 77-78,
362 N.W.2d 104 (1985).
¶25 The legislature’s decision to allow an adult relative or friend to
initiate proceedings in the circuit court and to engage, at the discretion of the
circuit court, in the hearing makes sense because such proceedings also provide
for the involvement of the subject and his or her advocacy counsel, who
represents the subject. See WIS. STAT. § 55.10(4)(a). Guardians are obligated to
advocate for the subject’s bests interests. See WIS. STAT. §§ 54.18(2)(b),
55.10(4)(b). In other words, multiple participants provide input at the circuit court
level.
¶26 By contrast, an adult relative or friend has no duty to advocate for
the best interests of the individual. Where, as here, an appeal is not taken by the
subject or those appointed by the court to advocate for that individual’s bests
interests, the adult relative’s or friend’s interests may not be aligned with those of
14
No. 2022AP877
the individual. As the County notes, allowing an interested person to appeal a
protective placement order which the subject chooses not to contest would expose
that individual to further litigation and possible changes in placement conditions
the individual did not seek and does not want. As such, it is neither absurd nor
unreasonable that the legislature has not allowed interested persons to appeal
protective placement orders, particularly when it allows them to petition for
modification or termination and to participate in circuit court proceedings in which
others who are obligated to act in the subject’s best interests are involved.
¶27 For these reasons, this court concludes that Rose’s status as an
“[i]nterested person” under WIS. STAT. § 55.01(4) does not give her the right to
appeal the protective placement order.
III. Rose Does Not Have Standing to Appeal Because She Is Not
Aggrieved by the Circuit Court’s Order.
¶28 Lastly, even if this court was to set aside WIS. STAT. § 55.20, Rose
would not have standing to appeal the circuit court’s order directing protective
placement for Mary under the common law rules that govern standing.
¶29 “The rule is that a person may not appeal from a judgment or order
unless aggrieved by it.” Kiser v. Jungbacker, 2008 WI App 88, ¶11, 312 Wis. 2d
621, 754 N.W.2d 180. “In order to be aggrieved by a judgment or order, that
judgment or order must operate on a person’s rights of property or bear directly on
some other interest.” Knight II, 251 Wis. 2d 10, ¶16. “A person is aggrieved if
the judgment or order bears ‘directly and injuriously’ upon his or her interests and
affects the person ‘in some appreciable manner.’” Kiser, 312 Wis. 2d 621, ¶11
(quoting Weina v. Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 345, 501 N.W.2d 465(Ct. App. 1993)). “The word ‘aggrieved’ refers to a substantial grievance, a denial
15
No. 2022AP877
of some personal or property right or the imposition of a burden or obligation.”
Town of Greenfield v. Joint Cnty. Sch. Comm., 271 Wis. 442, 447-48, 73 N.W.2d
580 (1955).
¶30 Rose’s argument on this point is not well developed. She argues that
she was aggrieved by the protective placement order because the circuit court
“allowed her to participate and state her objection to having her mother … placed
in a locked facility.” That argument is not sufficient to establish standing to
appeal for multiple reasons. First, Rose’s contention that she objected to her
mother’s placement in a locked facility is not factually supported because she cites
to her sister’s testimony at the hearing, not her own. Rose did not object to a
guardianship in her testimony—she merely wanted her sisters to be appointed
coguardians.
¶31 In addition, Rose was not asked questions about protective
placement during her testimony, but even if she had been and had opposed
protective placement, that would not be sufficient to establish that she is
“aggrieved” by the protective placement order. See Kiser, 312 Wis. 2d 621, ¶11.
Simply put, Rose has not explained how the protective placement order “directly
and injuriously” bears on any legally protected interest of hers. See id. (citation
omitted). She has not identified any way in which the order infringes on or denies
her personal or property rights or imposes any burden or obligation sufficient to
render her “aggrieved.” See Town of Greenfield, 271 Wis. at 447-48. Though
this court is to “liberally construe the law of standing,” Koller v. Liberty Mut. Ins.
Co., 190 Wis. 2d 263, 266, 526 N.W.2d 799 (Ct. App. 1994) (citation omitted),
Rose’s case for standing consists of mere disagreement with the court’s decision,
which is not enough. See L.P. v. B.G., 177 Wis. 2d 424, 427, 501 N.W.2d 90816
No. 2022AP877
(Ct. App. 1993) (“[A] strong desire to be heard by the court is not enough to
establish standing.”).
¶32 The lack of any legally cognizable injury specific to Rose is apparent
in the merits arguments she raises. She does not argue that the circuit court’s
order violates any of her rights or interests. Instead, Rose contends that her
mother “has a huge liberty interest at stake” and that the circuit court violated her
mother’s due process rights by basing its decision in part on the testimony of a
psychologist who had not personally examined her. Rose also argues that the
court erroneously exercised its discretion in finding that her mother was not
capable of caring for herself and posed “a substantial risk of serious harm to
herself or others.” These are Mary’s arguments to raise, not Rose’s. They allege
injury to Mary’s right to not be deprived of liberty without due process, not
Rose’s. They do not show that Rose is “aggrieved” by the protective placement
order sufficient to confer standing to appeal it.
By the Court.—Appeal dismissed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
17