Douglas County v. M. L. ( 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.
December 28, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP141 Cir. Ct. No. 2015GN14
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE
PLACEMENT OF M. L.:
DOUGLAS COUNTY,
PETITIONER-RESPONDENT,
V.
M. L.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Douglas County:
KELLY J. THIMM, Judge. Affirmed.
No. 2022AP141
¶1 HRUZ, J.1 Mason2 appeals an order continuing his protective
placement pursuant to WIS. STAT. § 55.18. Mason asserts that the circuit court lost
competency over this matter due to Douglas County failing to timely file its
petition and report as required by § 55.18(1). Additionally, Mason argues that the
County presented insufficient evidence to continue his protective placement by
failing to present a witness qualified to opine on the four elements required by
WIS. STAT. § 55.08(1).
¶2 We conclude that Mason forfeited his right to object to the
timeliness of the annual petition and its impact on the circuit court’s competency.
We also conclude that the record contains sufficient evidence demonstrating that
Mason continues to meet the requirements for protective placement. Accordingly,
we affirm.
BACKGROUND
¶3 Since 2013, Mason has been hospitalized in an inpatient setting. In
2015, Mason was adjudicated incompetent, was protectively placed, and was
appointed a guardian ad litem pursuant to WIS. STAT. §§ 55.02, 55.08, and 55.10.3
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.
3
A summary hearing was held in 2017 on a petition for an annual review of the order for
involuntary administration of psychotropic medications. The circuit court found that Mason
continued to meet the standards for an order for involuntary administration of psychotropic
medication under WIS. STAT. § 55.14(8). A full due process hearing was held in 2020 on a
petition for an annual review of protective placement. The court found that Mason continued to
meet the standards for protective placement due to serious and persistent mental illness and other
like incapacities, and that protective placement was the least restrictive environment consistent
with Mason’s needs. The court then ordered that protective placement continue in the same
facility.
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No. 2022AP141
In June 2021, the County filed a petition for Mason’s continued protective
placement, which is the petition at issue in this case. A full due process review
hearing was held in September 2021. The sole witness at the hearing was Rachael
Jacobson, a community support manager employed at the secure care facility
where Mason resided.
¶4 Jacobson testified that Mason had been diagnosed with “a serious
and persistent mental illness.” She also stated that Mason was diagnosed with
polydipsia, a condition where he “[consumes] things that should not be
consumed,” including “hygiene supplies,” “cleaning supplies,” “art mediums,” and
“drywall.” Further, the polydipsia caused Mason to “consume fluids in excess,”
which could adversely affect his health, and necessitated Mason’s mental health
facility to set a water restriction for him. Jacobson testified that Mason
experienced daily paranoid or delusional thinking. Upon being asked if Mason
would be a risk to himself or others if he were allowed into the community,
Jacobson responded:
I don’t feel that [Mason] would make the best safe choices
for himself, due to historical things that he’s done in his
past with—pertaining to drug use and things like that. I
also do not believe that the community would be safe, due
to his historical behavioral challenges where he has
aggressed others and caused injury to them.
¶5 The record before the circuit court at the 2021 hearing contained a
comprehensive evaluation written by Dr. Elliot Lee. This evaluation was prepared
for Mason’s 2020 annual review hearing, during which the court took judicial
notice of the evaluation. The evaluation diagnosed Mason with schizoaffective
disorder, polydipsia, and an unknown substance-induced mild neurocognitive
disorder. The evaluation also noted that Mason’s schizoaffective disorder “is
likely to be permanent.” The record before the court at the 2021 hearing also
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No. 2022AP141
contained annual reports on Mason’s condition from 2016 through 2021. The
2016 report stated that Mason’s mental health had not improved in the last year.
The 2017 report stated that Mason’s health had worsened over the year prior. The
2018-2021 reports stated that there were no changes in Mason’s health.
¶6 At the end of the 2021 hearing, the circuit court found that Mason
continued to be in need of protective placement, ordered Mason’s protective
placement to be continued, and concluded that his current residency was the least
restrictive placement available for him. The court stated that Mason “does have a
primary need for residential … placement because he can’t care for himself.” The
court further explained that Mason “creates a substantial risk of harm to himself
and others” and that Mason demonstrates an “inability to control himself.” The
court described Mason as being in “a permanent situation as we [have] seen in the
past.”
¶7 Mason now appeals. Additional facts will be provided as necessary
below.
DISCUSSION
¶8 Mason argues that the circuit court lost competency to hear the
County’s petition for his continued protective placement due to the County failing
to comply with the timing requirement to file a report for annual review pursuant
to WIS. STAT. § 55.18(1). Mason further argues that the County presented
insufficient evidence to establish that he continues to meet the standards for
protective placement.
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No. 2022AP141
I. Circuit Court Competency to Hear Petition for Continued Protective
Placement
¶9 Whether the circuit court lost competency due to the timing
requirement in WIS. STAT. § 55.18(1) presents an issue of statutory construction,
which we review de novo. See State ex rel. Robinson v. Town of Bristol, 2003
WI App 97, ¶12, 264 Wis. 2d 318, 667 N.W.2d 14. Under § 55.18(1), a county
must “annually review the status of each individual who has been provided
protective placement.” Sec. 55.18(1)(a). The statute sets forth the process that a
county must follow to initiate that review:
[n]ot later than the first day of the 11th month after the
initial order is made for protective placement for an
individual and, except as provided in par. (b), annually
thereafter, the county department shall do all of the
following:
1. File a report of the review with the court that ordered the
protective placement….
….
2. File with the court under subd. 1. a petition for annual
review by the court of the protective placement ordered for
the individual.
3. Provide the report under subd. 1. to the individual and
the guardian of the individual, and to the individual’s agent
under an activated power of attorney for health care, if any.
Sec. 55.18(1)(a) (emphasis added).
¶10 It is undisputed that the order for Mason’s continued protective
placement from the prior year was entered on June 30, 2020. Pursuant to either
WIS. STAT. § 55.18(1)(a) or (b), the County was required to file its petition to
continue Mason’s protective placement, or initiate a review leading to the same,
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No. 2022AP141
no later than May 1, 2021.4 The County filed its petition for annual review of
Mason’s protective placement on June 17, 2021. Even if we assume, without
deciding, that the County failed to comply with the statutory time limit in
§ 55.18(1)(a), we conclude that Mason forfeited his competency argument by
failing to timely object to the circuit court proceeding with the review hearing.
See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.
¶11 “Whether a party has forfeited its right to raise an issue on appeal is
a question of law that we review independently.” Loren Imhoff Homebuilder,
Inc. v. Taylor, 2022 WI 12, ¶10, 400 Wis. 2d 611, 970 N.W.2d 831. “Wisconsin
courts have ‘continuously emphasized the importance of making proper objections
as a prerequisite to assert, as a matter of right, an alleged error on appeal.’” State
v. Saunders, 2011 WI App 156, ¶30, 338 Wis. 2d 160, 807 N.W.2d 679 (citation
4
The parties disagree on whether WIS. STAT. § 55.18(1)(a) or (1)(b) applies to Mason’s
recommitment. Section 55.18(1)(a) states, “Not later than the first day of the 11th month after the
initial order is made for protective placement for an individual and, except as provided in par. (b),
annually thereafter, the county department shall … [f]ile a report of the review with the court that
ordered the protective placement.” (Emphasis added.) Section 55.18(1)(b) states that “the county
is not required to initiate a subsequent review of the individual’s status under par. (a) until the
first day of the 11th month after the date that the court issues a final order after the hearing.”
(Emphasis added.) The dispute, thus, is whether the County was required to file its petition or
initiate its review.
Citing to the plain language of WIS. STAT. § 55.18(1)(a), Mason argues that this
paragraph applies to all annual reviews of a protective placement. Citing to the language in
§ 55.18(1)(b) and to Milwaukee County v. C.L.-K., No. 2015AP2031, unpublished slip op.
(WI App May 24, 2016), the County argues that § 55.18(1)(b) applies after the first review of a
protective placement. We conclude that, regardless of which paragraph applies, Mason forfeited
this argument by failing to challenge the circuit court’s competency in the circuit court.
Accordingly, we do not further address the parties’ arguments on which paragraph applies. See
Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals
need not address all issues raised by the parties if one is dispositive).
Unpublished opinions authored by a single judge and issued on or after July 1, 2009, may
be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
6
No. 2022AP141
omitted). An objection to the court’s lack of competency can be forfeited if not
timely raised in the circuit court. See City of Eau Claire v. Booth, 2016 WI 65,
¶11, 370 Wis. 2d 595, 882 N.W.2d 738; Village of Trempealeau v. Mikrut, 2004
WI 79, ¶30, 273 Wis. 2d 76, 681 N.W.2d 190 (holding that, generally, “challenges
to the circuit court’s competency are [forfeited] if not raised in the circuit court”).
¶12 Here, any issue regarding the County’s untimely petition should
have been raised prior to, or during, the annual review hearing. Mason
acknowledges that he raised no contemporaneous objection to the circuit court’s
competency to conduct the review hearing.
¶13 “We will not … blindside [circuit] courts with reversals based on
theories which did not originate in their forum.” State v. Rogers, 196 Wis. 2d 817,
827, 539 N.W.2d 897 (Ct. App. 1995). Furthermore, addressing an issue that an
appellant has raised for the first time on appeal constitutes a waste of judicial
resources, both in the circuit court and on appeal. See Green v. Hahn, 2004
WI App 214, ¶21, 277 Wis. 2d 473, 689 N.W.2d 657. Indeed, by failing to raise
his competency argument below, Mason allowed the court to move forward with,
and ultimately complete, the due process annual review hearing and rule on the
merits of the County’s petition. Accordingly, Mason failed to timely assert his
right to object to the circuit court’s competency. See Ndina, 315 Wis. 2d 653 ¶29.
¶14 In reply, Mason cites Green County Department of Human
Services v. H.N., 162 Wis. 2d 635, 469 N.W.2d 845 (1991), a case which held that
a competency challenge based on noncompliance with statutory time limits cannot
be forfeited. See id. at 656-58. We first note that H.N. is materially
distinguishable from the case at hand. H.N. dealt with a dispositional order
involving two children under WIS. STAT. § 48.435(6). H.N., 162 Wis. 2d at 645.
7
No. 2022AP141
H.N.’s dispositional order had expired prior to the extension hearing, and the case
concerned the circuit court’s failure to hold a hearing prior to the expiration of the
order. Id. at 642-43, 650. Our supreme court explicitly addressed its concern with
the court’s failure to follow the statutory time limits, noting that if “the circuit
court were allowed to conduct a hearing … the dispositional order would have to
be ‘extended’ until the new hearing date,” which was “something the statutes do
not permit.” Id. at 650. Thus, the court lacked competency to proceed with the
hearing, as the dispositional order had already expired. Id. at 654. Conversely,
here the timing issue concerned the County’s failure to timely file an annual
petition for an individual whose order had yet to expire. See WIS. STAT.
§ 55.18(1).
¶15 Further, H.N. does not reflect the most recent Wisconsin
jurisprudence on the issue of competency. See State v. Bollig, 222 Wis. 2d 558,
566, 587 N.W.2d 908 (1998) (“[N]oncompliance with a mandatory statute does
not always require a loss of competence.”); see also Mikrut, 273 Wis. 2d 76, ¶27
(“[T]he common-law waiver rule applies to challenges to the circuit court’s
competency, such that a challenge to the court’s competency will be deemed
waived if not raised in the circuit court.”); Booth, 370 Wis. 2d 595, ¶11.
Accordingly, we reject Mason’s argument that a competency challenge cannot be
forfeited.
II. Sufficiency of the Evidence
¶16 Mason also argues that the County failed to prove, by clear and
convincing evidence, each of the four elements required for continued protective
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No. 2022AP141
placement under WIS. STAT. § 55.08(1)(a)-(d).5 Whether the County presented
sufficient evidence to support the circuit court’s determination that Mason
continues to meet the standards for protective placement presents a mixed question
of fact and law. See Walworth County v. Therese B., 2003 WI App 223, ¶21, 267
Wis. 2d 310, 671 N.W.2d 377. The court’s factual findings at the continued
protective placement hearing “will not be overturned unless clearly erroneous.”
Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998).
“[W]hether the evidence satisfies the legal standard for incompetency and whether
the evidence supports protective placement are questions of law, which we review
de novo.” Id. at 23.
¶17 For a circuit court to order a continuation of protective placement, it
must find, by clear and convincing evidence, that the following elements are
present:
(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
5
Mason also argues that in a protective placement proceeding, an expert witness is
“required to establish whether a person is incompetent, suffers from a qualifying mental disorder,
and whether the qualifying mental disorder is permanent.” To support this assertion, Mason cites
Walworth County v. Therese B., 2003 WI App 223, ¶13, 267 Wis. 2d 310, 671 N.W.2d 377,
where we stated that, to meet its burden of proof, “the government must present a witness who is
qualified by experience, training and independent knowledge of [the individual’s] mental health
to give a medical or psychological opinion on each of these elements.” Id. Therese B. is
distinguishable because it concerned a guardianship proceeding in tandem with an initial
protective placement, unlike this case. Guardianship proceedings, which are governed by WIS.
STAT. ch. 54, do require medical expert testimony; conversely, continued protective placement
proceedings, which are governed by WIS. STAT. ch. 55, do not have any such requirement. See
Douglas County v. J.M., No. 2022AP2035, unpublished slip op. ¶¶20-22 (WI App Nov. 28,
2023); Price County v. C.W., No. 2023AP18-FT, unpublished slip op. ¶¶18-20 (WI App Sept. 6,
2023).
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No. 2022AP141
guardianship has been submitted, or is an adult who has
been determined to be incompetent by a … court.
(c) As a result of developmental disability, degenerative
brain disorder, serious and persistent mental illness, or
other like incapacities, the individual is so totally incapable
of providing for his or her own care or custody as to create
a substantial risk of serious harm to himself or herself or
others. Serious harm may be evidenced by overt acts or
acts of omission.
(d) The individual has a disability that is permanent or
likely to be permanent.
WIS. STAT. § 55.08(1); see WIS. STAT. §§ 55.10(4)(d), 55.18(3)(e).
¶18 A circuit court is required to make one of three conclusions at the
end of an annual review hearing. WIS. STAT. § 55.18(3)(e)1.-3. As relevant here,
if the court concludes that the individual continues to meet the requirements for
protective placement and is located in the least restrictive setting possible, the
court shall order the person to continue being protectively placed in the facility in
which the individual resides at the time of the hearing.6 Sec. 55.18(3)(e)1.
¶19 Here, the circuit court concluded that Mason met the required
elements for continued protective placement under WIS. STAT. § 55.18(3)(e)1.,
including the standards under WIS. STAT. §§ 55.08(1) and 55.12(3)-(5). The court
referenced Mason’s past primary need for placement and his prior risk of harm to
others, and it implied a finding of permanency.
¶20 We first summarize the evidence before the circuit court at the
hearing. The court had access to—and could consider—all reports and documents
6
The circuit court’s two other possible conclusions under WIS. STAT. § 55.18(3)(e)2. and
3. are “ordering transfer of the individual to … a protective placement that is the least restrictive
environment” or “terminat[ing] the protective placement.” Sec. 55.18(3)(e)2., 3.
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No. 2022AP141
previously admitted into evidence, as well as all facts that had been adjudicated in
prior proceedings. See WIS. STAT. §§ 55.11(1), 55.12(1), 55.18(1), 902.01; see
also Douglas County v. J.M., No. 2022AP2035, unpublished slip op. ¶¶20-22
(WI App Nov. 28, 2023).7 These reports and documents include Dr. Lee’s 2020
comprehensive evaluation, which diagnosed Mason with schizoaffective disorder
that “is likely to be permanent,” polydipsia, and an unknown substance-induced
mild neurocognitive disorder; the 2016-2021 annual reports that stated Mason’s
mental health had either not improved or had worsened; and the court’s order for
guardianship, wherein it first found Mason incompetent.
¶21 The circuit court also heard testimony from Rachael Jacobson, who
testified regarding Mason’s living situation at his secure care facility. Jacobson
testified regarding the number of staff members supervising Mason and assisting
him with cooking and cleaning. She noted that Mason suffers from polydipsia,
experiences daily paranoid or delusional thinking, and has an unspecified
diagnosis of a serious and persistent mental illness.8 Jacobson also testified that
she believed Mason was at risk of harming himself, in that, during his protective
placement, he had snorted “drywall” and “art mediums.” Further, Jacobson stated
7
In J.M., No. 2022AP2035, we concluded that WIS. STAT. §§ 55.11(1), 55.12(1),
55.18(1), and 902.01 permit the circuit court to take judicial notice of reports and documents
previously admitted into evidence, particularly when the “documentation [is] submitted in
conjunction with the petition under review—such as the required comprehensive evaluation from
the initial placement and the required annual written review pursuant to … §§ 55.11(1) and
55.18(1), respectively.” J.M., No. 2022AP2035, ¶20.
8
Jacobson testified that Mason’s paranoid thinking included delusions about “being
poisoned with different things[,] such as arsenic” or “Ativan,” and being “physically harmed,”
“[s]uch as being raped, molested, shot,” or having “his neck broken.” She also testified that
Mason believed that the FBI, CIA, FCC and other “various different agencies” were working at
his mental health facility and were causing him “physical harm and mental anguish.”
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No. 2022AP141
that Mason was under a water restriction because otherwise he would “continue to
consume fluids in excess that could be unsafe for his health.”
¶22 Regarding his behavior at the facility, Jacobson stated that Mason
can “[s]ometimes” be compliant with staff and with rules and “sometimes not,”
which occasionally requires “a physical intervention where staff have to go
physically … place him in a physical skeletal lock until he deescalates for his and
[the staff’s] safety.” Jacobson then stated that Mason has made threats against the
staff, and she recounted an instance wherein a staff member “gently touched
[Mason’s] shoulder” and Mason responded, “Don’t touch me or I’ll hit you in your
face.” Jacobson also recounted an incident where Mason “elope[d]” from the
facility, and, upon encountering a staff member, Mason put the staff member “in a
headlock and bash[ed] their head into the ground approximately four to five times
before” other staff could restrain Mason. Jacobson opined that Mason “has
moments” of “lucidity where he can be insightful into his illness, but those
moments are fleeting, far and few between, and he typically presents in a state of
psychoses.” Finally, Jacobson testified,
I don’t feel that [Mason] would make the best safe choices
for himself, due to historical things that he’s done in his
past with—pertaining to drug use and things like that. I
also do not believe that the community would be safe, due
to his historical behavioral challenges where he has
aggressed others and caused injury to them.
¶23 We now turn to whether the evidence before the circuit court
established, by clear and convincing evidence, the four elements for continued
protective placement under WIS. STAT. § 55.08(1)(a)-(d). Doctor Lee’s 2020
comprehensive evaluation stated that Mason has a “[p]rimary need for residential
care and custody” because “[Mason] has severe schizoaffective disorder that is
likely permanent as well as a cognitive impairment resulting both from prolonged
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No. 2022AP141
illicit drug use and mental illness. He requires 24[-]hour supervision as he may
become violent and unpredictable.” Also in evidence was the 2021 annual report
stating that there was no change in Mason’s mental health in the last year.
Jacobson’s testimony—summarized above—further supported a determination
that Mason has a primary need for residential care and custody. On this record,
we conclude that there is clear and convincing evidence that Mason has primary
need for residential care and custody pursuant to § 55.08(1)(a).
¶24 With respect to WIS. STAT. § 55.08(1)(b), it is uncontested that
Mason is an adult. Thus, we next focus on whether he has been determined
incompetent by a circuit court. Within the record before the court were prior court
orders setting forth numerous adjudicative facts regarding Mason’s incompetency.
See WIS. STAT. § 902.01. These orders include the 2015 guardianship order; the
2017 guardianship order; and the 2020 order for continuing protective placement,
each of which contained a finding that Mason was incompetent. Thus, we
conclude that there is clear and convincing evidence that Mason is an adult who
has been determined to be incompetent by a court pursuant to § 55.08(1)(b).
¶25 Regarding the third element, Dr. Lee’s evaluation observes that
Mason’s schizoaffective disorder is “severe”; that Mason’s behavior is “frequently
violent, demonstrating little or no control over his impulses,” which caused him to
remain “in the most secure unit since his arrival”; and that Mason is “unable
to … make any informed decisions regarding his care and placement.” Jacobson’s
testimony also provides sufficient evidence to support a finding that Mason is so
totally incapable of providing for his own care as to create a substantial risk of
serious harm to himself or others as a result of his severe schizoaffective disorder
and polydipsia, pursuant to WIS. STAT. § 55.08(1)(c). See supra, ¶¶21-22.
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No. 2022AP141
¶26 Finally, Dr. Lee’s evaluation states that Mason’s “severe
schizoaffective disorder” is “likely to be permanent.” See WIS. STAT.
§ 55.08(1)(d). This conclusion is consistent with the 2016-2021 annual reports,
each of which show either no change or a decline in Mason’s mental health. Thus,
the record contains clear and convincing evidence that Mason’s disability is
permanent or likely to be permanent. Accordingly, and in sum, we conclude that
there was sufficient evidence for the circuit court to conclude that Mason
continues to meet the requirements for protective placement under § 55.08(1).
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
14