Outagamie County Department of Health and Human Services v. L. C. E. ( 2024 )

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.
June 4, 2024
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. 2023AP929 Cir. Ct. No. 2018GN122
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP AND
PROTECTIVE PLACEMENT OF L. C. E.:
OUTAGAMIE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
L. C. E.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Outagamie County:
VINCENT R. BISKUPIC, Judge. Reversed.
No. 2023AP929
¶1 STARK, P.J.1 Lauren2 appeals an order for her protective
placement pursuant to WIS. STAT. ch. 55.3 Lauren argues that the Outagamie
County Department of Health and Human Services failed to prove, by clear and
convincing evidence, that she is so totally incapable of providing for her own care
or custody as to create a substantial risk of serious harm to herself or others as
required under WIS. STAT. § 55.08(1)(c). We agree, and, accordingly, we reverse
Lauren’s protective placement order.
BACKGROUND
¶2 In 2018, Lauren was found to be incompetent due to a
developmental disability and was appointed a guardian of her person and a
guardian of her estate, pursuant to WIS. STAT. ch. 54.4 During Lauren’s protective
placement hearing in 2021, community support specialist Kim Luke testified that
as of 2018, Lauren’s housing situation was “very transient,” and she spent time
living with friends and family before obtaining her own apartment.
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.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
3
Our appellate record indicates that Lauren filed a postdisposition motion in this case
and that, following a hearing, the circuit court entered an order denying her motion. Lauren’s
notice of appeal states that only the order for protective placement is being appealed, and Lauren
does not raise any arguments on appeal regarding the denial of her postdisposition motion.
Similarly, Lauren does not raise any arguments on appeal regarding her guardianships. We
therefore address only the order for Lauren’s protective placement.
4
The guardian of Lauren’s estate was granted the power to perform all duties under WIS.
STAT. § 54.19 and the right to exercise the powers listed in WIS. STAT. § 54.20(3).
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No. 2023AP929
¶3 In early 2019, Lauren was evicted from her apartment and was
thereafter involuntarily committed, on an inpatient basis, pursuant to WIS. STAT.
ch. 51. While committed, Lauren eloped from her mental health facility, moved
back into the apartment from which she was evicted, and then eloped to Chicago.
Luke testified that in April 2019, Lauren was returned to her mental health facility
and spent time at both the mental health facility and a hospital due to her being
“acutely psychotic.”
¶4 In August 2019, Lauren was placed at an apartment that was
managed by a mental health provider and had staff to assist Lauren with
medication management, shopping, cleaning, and other various activities of daily
living. According to Luke, this housing arrangement was “contingent upon
or … managed through” Lauren’s WIS. STAT. ch. 51 commitment.
¶5 In 2020, Lauren’s WIS. STAT. ch. 51 commitment was extended
following a hearing. In September 2021, this court reversed the order extending
Lauren’s commitment. See Outagamie County v. L.C.E., No. 2021AP324,
unpublished slip op. (WI App Sept. 8, 2021).5 The County subsequently
petitioned to have Lauren protectively placed pursuant to WIS. STAT. ch. 55. At
the protective placement hearing, the County called both Luke and physician
Michele Andrade to testify.
5
We cite our prior opinion in Outagamie County v. L.C.E., No. 2021AP324,
unpublished slip op. (WI App Sept. 8, 2021), not as precedential or persuasive authority but to
provide relevant background information regarding Lauren’s case. See WIS. STAT.
RULE 809.23(3)(a). This court reversed the order extending Lauren’s commitment due to the
circuit court’s failure to make specific factual findings as to Lauren’s dangerousness. See L.C.E.,
No. 2021AP324, ¶9.
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No. 2023AP929
¶6 Luke’s testimony consisted largely of the facts set forth above, see
supra ¶¶2-5, and she provided information concerning Lauren’s condition at the
apartment. She stated that Lauren “would prefer to have no involvement with any
kind of [C]ounty management” services and that Lauren would like to leave her
apartment. Luke opined that money available through a protective placement to
pay for goods and services would not be a motivator for Lauren to stay at her
apartment because she is “spontaneous and impulsive.” Luke also opined that if
Lauren left the supported apartment, she would be “vulnerable to the abuse of
other people,” she might stop taking her medication, and her mental health
symptoms might reappear.” Luke further opined that Lauren might not be able to
perform all of her activities of daily living without prompts from mental health
workers.
¶7 Doctor Andrade testified that she examined Lauren and diagnosed
her with a mild intellectual developmental disorder and an unspecified bipolar
disorder. Andrade opined that Lauren’s incapacity was permanent or likely to be
permanent and that, due to her incapacity, Lauren was “so incapable of providing
for her own care or custody as to create a substantial risk of serious harm to herself
or others.” Andrade further stated that Lauren did not “keep up with her personal
environment” and that her apartment was “[q]uite dirty.” Andrade stated that if
Lauren was not protectively placed, she would be concerned “that [Lauren’s]
physical environment would deteriorate even worse and become an issue.”
Andrade also opined that absent protective placement, Lauren might not take her
4
No. 2023AP929
medication, which would “exacerbate her safety factors.” In support of this
statement, Andrade mentioned that Lauren “jumped out of a two-story window.”6
¶8 Lauren testified that she did not jump out of a two-story window,
that she had been searching for apartments to live in if she were not protectively
placed, that she would take her medication without the help of the County, and
that her family would be willing to help her.
¶9 The circuit court found that Lauren had a primary need for
residential care and custody and that she was incompetent due to her
developmental disorder.7 In making these findings, the court stated that it took
notice of Lauren’s WIS. STAT. ch. 51 “file” and of Dr. Andrade’s report.
¶10 The circuit court further found that Lauren’s incapacity “renders her
so incapable of providing for her own care or custody as to create a substantial risk
of serious harm to herself or others.” The court based this finding on Lauren’s
“overall history, including things such as absconding from facilities,” “jumping
out of a two-story window,” and Lauren’s noncompliance “with her treatment plan
and her medication” without daily support. The court also stated that Lauren is
“not able to meet the essential requirements of her own personal health and
personal safety. She’s not able to manage her property and financial
affairs…. She’s not able to provide her own support. She’s not able to prevent
6
Doctor Andrade did not state when Lauren was alleged to have jumped out of a
two-story window.
7
Notably, the circuit court did not make an explicit finding that Lauren suffers from a
disability that is permanent or likely to be permanent. See WIS. STAT. § 55.08(1)(d). However,
Lauren does not contest that her disability is permanent or likely to be permanent. See infra ¶13
n.8.
5
No. 2023AP929
herself from being exploited financially.” The court entered an order for Lauren’s
protective placement, and Lauren now appeals.
DISCUSSION
¶11 Lauren contends that the County failed to prove, by clear and
convincing evidence, that she is so totally incapable of providing for her own care
or custody as to create a substantial risk of serious harm to herself or others.
Specifically, Lauren argues that the County presented only speculative and vague
testimony about her dangerousness.
¶12 Our review of the circuit court’s order to protectively place a ward
presents a mixed question of fact and law. We will uphold the circuit court’s
factual findings unless they are clearly erroneous. Walworth County v.
Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. “A
finding of fact is clearly erroneous if it is against the great weight and clear
preponderance of the evidence.” Metropolitan Assocs. v. City of Milwaukee,
2018 WI 4, ¶62, 379 Wis. 2d 141, 905 N.W.2d 784. Whether the evidence
supports the legal standard for protective placement is a question of law that we
review de novo. Therese B., 267 Wis. 2d 310, ¶21.
¶13 Among other requirements set forth in WIS. STAT. § 55.08(1), and as
relevant to this appeal,8 in order for the circuit court to order that Lauren be
8
Lauren does not contest that she has a primary need for residential care and custody,
that she is an adult who has been determined to be incompetent by a circuit court, and as noted
above, that she has a disability that is permanent or likely to be permanent. See WIS. STAT.
§ 55.08(1)(a), (b), (d).
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No. 2023AP929
protectively placed under WIS. STAT. ch. 55, the County was required to prove by
clear and convincing evidence that
[a]s a result of developmental disability, degenerative brain
disorder, serious and persistent mental illness, or other like
incapacities, [Lauren] is so totally incapable of providing
for … her own care or custody as to create a substantial risk
of serious harm to … herself or others. Serious harm may
be evidenced by overt acts or acts of omission.
See § 55.08(1)(c). “The risk of harm must be substantial. Mere speculation as to
difficulties [a ward] may encounter is not sufficient. Specific harm must be
foreseeable to fulfill this requirement. Furthermore, the foreseeable harm must be
serious…. [M]inor accidents, injuries and illness are not sufficient to satisfy this
requirement.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15, 275
N.W.2d 143 (Ct. App. 1979). “Residential care” means “the provision of a
person’s daily needs in the place where the person resides.” Jackson Cnty. Dep’t
of Health and Hum. Servs. v. Susan H., 2010 WI App 82, ¶13, 326 Wis. 2d 246,
785 N.W.2d 677. “Custody” means “control and supervision in order to provide”
protection “from abuse, financial exploitation, neglect, and self-neglect.” Id., ¶14
(quoting WIS. STAT. § 55.001).
¶14 In Wood County v. Zebulon K., Nos. 2011AP2387, 2011AP2394,
unpublished slip op. (WI App Feb. 7, 2013),9 this court reversed the protective
placement of two brothers because the County failed to prove that the brothers
were so totally incapable of providing for their own care and custody as to create a
substantial risk of serious harm to themselves. Id., ¶17. There, the County
9
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).
7
No. 2023AP929
presented evidence that the brothers suffered from developmental disabilities, did
not understand how their disabilities affected their lives, and, because of their
disabilities, were unable to “prevent financial exploitation” and were not safe from
being manipulated. Id., ¶¶4, 15. The County also presented evidence of concerns
regarding the brothers’ hygiene and “the cleanliness of their person and clothing.”
Id., ¶15. On appeal, this court concluded that, while there were concerns about the
brothers’ abilities to provide for their own care, “nothing in the record establishes
that they are incapable of providing for their own care or custody and nothing in
the record establishes that their incapacities create a ‘substantial risk of serious
harm’ to themselves or others.” Id., ¶16.
¶15 Like the evidence in Zebulon K., Luke’s testimony does not prove
by clear and convincing evidence that Lauren is so incapable of providing for her
own care or custody as to create a substantial risk of serious harm to herself or
others. Luke opined that absent protective placement, Lauren would be
“vulnerable to the abuse of other people,” might stop taking her medication, and
might not be able to perform all the activities of daily living. However, all of
these statements are speculative and vague. Luke did not specify what kind of
abuse Lauren would be “vulnerable” to; why Lauren takes the medication and
what symptoms may reappear if she stops taking medication; what activities of
daily living Lauren may not be able to perform on her own; how any of these
factors would affect Lauren’s ability to care for herself; or how any of these
concerns would lead to serious harm to Lauren or others. This evidence does not
rise to the level of the specific and substantial risk of serious harm required by
WIS. STAT. § 55.08(1)(c). See Zander, 87 Wis. 2d at 514-15; Zebulon K.,
Nos. 2011AP2387, 2011AP2394, ¶16.
8
No. 2023AP929
¶16 We also note that, regardless of the outcome of Lauren’s protective
placement, she will continue to be subject to a guardianship of her person and a
guardianship of her estate. As such, the record does not support the circuit court’s
finding that Lauren would be at risk of financial exploitation, or why her inability
to manage her financial affairs or provide for her own support would provide a
basis for her protective placement.
¶17 Similarly, Dr. Andrade’s testimony does not prove by clear and
convincing evidence that Lauren is so incapable of providing for her own care or
custody as to create a substantial risk of serious harm to herself or others.
Andrade testified that Lauren’s apartment was “[q]uite dirty” and could worsen if
Lauren were not protectively placed. However, this vague concern does not
demonstrate that Lauren is totally incapable of providing for her own care. See
Zebulon K., Nos. 2011AP2387, 2011AP2394, ¶16.
¶18 Doctor Andrade did testify that Lauren’s failure to take her
medication may “exacerbate her safety factors,” and she gave the example of
Lauren jumping out of a two-story window. We also note that the circuit court
found that “multiple witnesses testified about [Lauren] jumping out of a two-story
window.” However, Andrade was the only witness who testified that Lauren
jumped out of a two-story window, and Lauren explicitly testified that she did not
do so. Accordingly, there was no evidentiary basis for the court to find that
multiple witnesses testified to Lauren jumping out of a two-story window. This
finding was clearly erroneous.
¶19 The circuit court was certainly permitted to find Dr. Andrade’s
testimony more credible than Lauren’s testimony. See Cogswell v. Robertshaw
Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979). Andrade, however,
9
No. 2023AP929
had no firsthand knowledge of Lauren jumping out of a two-story window.
Further, in our opinion reversing Lauren’s involuntary commitment order—which
the circuit court explicitly took judicial notice of—we noted that the statement of
emergency detention and the police reports state that Lauren did not actually jump
out of a two-story window. L.C.E., No. 2021AP324, ¶6 n.3. The record therefore
does not support either Andrade’s testimony or the court’s finding.
¶20 The record is devoid of any evidence of a specific and foreseeable
harm that Lauren will suffer due to her disability if she is not protectively placed.
Cf. Douglas County v. J.M., No. 2022AP2035, unpublished slip op. ¶34 (WI App
Nov. 28, 2023), review denied (WI Apr. 16, 2024) (concluding there was
sufficient evidence that a ward’s incapacity would result in substantial harm based
on testimony that, due to his incapacity, the ward was unable to obtain housing by
himself, unable to cook, got into physical altercations with others, and
demonstrated increasingly harmful behaviors). While the County presented
evidence that Lauren may not always make the best decisions, the County failed to
provide sufficient evidence that Lauren presents a substantial risk of a specific,
foreseeable, and serious harm to herself or others.10
By the Court.—Order reversed.
10
Lauren raises two additional arguments: (1) that the circuit court impermissibly relied
on hearsay evidence from Luke’s and Dr. Andrade’s testimony; and (2) that her trial counsel
failed to provide constitutionally effective assistance of counsel. Because we conclude that there
was insufficient evidence to prove that Lauren presents a substantial risk of serious harm to
herself or others, we need not address these additional arguments. See Turner v. Taylor, 2003
WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (this court need not address all issues
raised by the parties if one is dispositive).
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No. 2023AP929
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
11