Racine County v. B.L.M. ( 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.
November 22, 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. 2023AP757 Cir. Ct. No. 2000GN206
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF
B.L.M.:
RACINE COUNTY,
PETITIONER-RESPONDENT,
V.
B.L.M.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Racine County:
WYNNE P. LAUFENBERG, Judge. Affirmed.
No. 2023AP757
¶1 LAZAR, J.1 Bonnie2 appeals from the 2021 order continuing her
protective placement. She raises (for the first time) the question of whether the
circuit court lost competency to proceed with the review of her protective
placement under WIS. STAT. ch. 55 when it failed to appoint (or reappoint) a
guardian ad litem under § 55.18 after Racine County filed an annual report in
2021. She further contends that this was a violation of a statutory time limit, and
as such, her challenge was not waived when she did not raise it before the circuit
court. The County notes that a guardian ad litem was appointed in 2019 and never
discharged until 2022, when a new guardian ad litem was appointed. It argues that
the circuit court retained competency over Bonnie’s protective placement
proceedings because the court was not required to reappoint a guardian ad litem
each year and that Bonnie either waived her right to challenge competency on
appeal or that any errors below in that regard were harmless.
¶2 After a careful review of statutory provisions and relevant case law,
this court concludes that the circuit court was not required to reappoint a guardian
ad litem each year. The circuit court retained competency, and there is no
potential violation of a statutorily mandated time limit. Thus, Bonnie’s challenge
could be—and was—waived when it was not raised in the circuit court.
Accordingly, this court affirms the order of the circuit court.
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
This court refers to the subject individual by a pseudonym pursuant to WIS. STAT.
RULE 809.19(1)(g), to protect her confidentiality.
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No. 2023AP757
BACKGROUND
¶3 As far back as 2000, the County first filed a petition for guardianship
for Bonnie when she was found unresponsive and ataxic.3 She was diagnosed
with alcohol dementia4 and significant memory impairment and found to be
unable to live independently. Since at least 2005, Bonnie has also been placed in
protective placement in Racine County (most often in a locked facility).
¶4 Every year before this appeal, the County filed petitions and annual
reports seeking to maintain Bonnie’s protective placement and the guardians ad
litem filed responsive reports. The Record shows that the first guardian ad litem
(GAL) Report, by Attorney Francis J. Endejan, was filed in June 2006.5 Attorney
3
The Merriam-Webster Dictionary defines “ataxia” as “an inability to coordinate
voluntary muscular movements that is symptomatic of some central nervous system disorders and
injuries and not due to muscle weakness.” Ataxia, MERRIAM-WEBSTER DICTIONARY,
https://merriam-webster.com/dictionary/ataxia (last visited Nov. 8, 2023).
4
Bonnie was further diagnosed with Wernicke’s encephalopathy as well as Korsakoff’s
syndrome. Wernicke’s encephalopathy is “an acute inflammatory hemorrhagic encephalopathy
that is caused by thiamine deficiency (such as that associated with chronic alcoholism or
malnutrition) and is characterized by loss of muscle coordination, visual disturbances (such as
abnormal eye movement and diplopia), and confusion and memory loss.”
Wernicke’s encephalopathy, MERRIAM-WEBSTER MEDICAL DICTIONARY, https://merriam-
webster.com/medical/Wernicke%27s%20encephalopathy (last visited Nov. 8, 2023). That
affliction can lead to Korsakoff’s syndrome, which is “a chronic memory disorder that is caused
by brain damage related to a severe deficiency of thiamine (as that associated with alcoholism or
malnutrition) and is characterized by impaired ability to form new memories and by memory loss
for which the patient often attempts to compensate through confabulation.”
Korsakoff syndrome, MERRIAM-WEBSTER MEDICAL DICTIONARY, https://merriam-
webster.com/medical/Korsakoff%20syndrome (last visited Nov. 8, 2023).
5
The order appointing that guardian ad litem is not in the Record.
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No. 2023AP757
Endejan filed a second GAL Report in May 2007.6 On March 13, 2008, Attorney
Endejan was discharged as guardian ad litem by court order. On April 30, 2008,
the probate court commissioner appointed Attorney Walter Joseph Kryshak as
Bonnie’s new guardian ad litem. No County petition had been filed nor were there
any pending hearings at that time. On September 8, 2008, Attorney Kryshak filed
his first GAL Report7 following the County’s August 15, 2008 petition for annual
review of protective placement.
¶5 On April 21, 2009, a new guardian ad litem (James W. Pruitt) was
appointed.8 On August 4, 2009, the County filed its petition for annual review,
and Attorney Pruitt filed his GAL Report9 on September 8, 2009. For the next
nine years, Attorney Pruitt filed GAL Reports following each petition for annual
review by the County.10 All GAL Reports were on the same state forms with the
6
The May 2007 report filed by Attorney Endejan was submitted on the State of
Wisconsin’s fillable Form GN-4110 entitled “Report and Recommendation of Guardian ad Litem
(Annual Review of Protective Placement)” pursuant to WIS. STAT. § 55.18(2). The form states
that it cannot be modified and it begins with the preliminary phrase that the “report is being filed
within 30 days of [the GAL’s] appointment.” Obviously, that statement was not correct.
7
This GAL Report was also on Form GN-4110 and contained the certification that it was
being filed within 30 days of the GAL’s appointment. Again, that statement is not accurate.
8
There is no order in the Record indicating that Attorney Kryshak’s guardian ad litem
appointment was terminated.
9
This Report, too, was filed on Form GN-4110 and contained the same certification.
10
After the August 13, 2010 petition, a GAL Report by Attorney Pruitt was filed on
September 14, 2010. Petitions and GAL Reports, respectively, were then filed as follows:
August 15, 2011, and September 13, 2011; August 9, 2012, and August 31, 2012; August 8,
2013, and September 13, 2013; August 7, 2014, and September 9, 2014; August 6, 2015, and
September 2, 2015; August 15, 2016, and September 13, 2016; August 17, 2017, and
September 12, 2017; and July 26, 2018, and September 11, 2018.
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same certification.11 Only one time during those ten years was Attorney Pruitt
appointed again as Bonnie’s guardian ad litem.
¶6 Attorney Noah Wishau was appointed12 guardian ad litem on
June 12, 2019. From 2019 through 2022 (when a new13 guardian ad litem was
appointed), Attorney Wishau filed three GAL Reports following petitions for
review by the County, all but one within thirty days from the petition filing date.
(The petition dates and GAL Report dates are as follows: August 27, 2019, and
September 16, 2019; September 18, 2020, and October 19, 2020; and August 19,
2021, and October 18, 2021.)
¶7 All of Bonnie’s guardians ad litem used the same form for their
GAL Reports: Wisconsin State Form GN-4110. While the form was revised four
times over the course of Bonnie’s guardianship and protective placement, it
consistently contained the boilerplate certification that the report was being filed
within thirty days after appointment of a guardian ad litem. In almost every filing
since 2006, that certification was inaccurate in Bonnie’s case. There is no way to
modify or remove that line from the form.
11
A different GAL Report (for guardianship due to incompetency), Wisconsin Form
GN-3160, was also filed by Attorney Pruitt on October 7, 2011 in response to a request to change
Bonnie’s guardian. That form did not include the thirty-day certification.
12
Without explanation in the Record, another attorney was appointed guardian ad litem
on January 24, 2019, but that attorney never filed a report and Attorney Wishau was appointed six
months later. No County reports were on file and no hearings were pending when either guardian
ad litem appointment was made.
13
Attorney Megan McGee Norris was appointed on July 27, 2022, and, following a
petition by the County on August 11, 2022, she filed a GAL Report on September 6, 2022.
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No. 2023AP757
¶8 Bonnie’s appeal looks back only to 2019 when Attorney Wishau was
appointed as her fifth guardian ad litem. She asserts that, because his appointment
was not made again in 2020 (after the County filed its September 2020 petition for
review and continuation of Bonnie’s protective placement) or in 2021 (after the
County’s August 2021 petition) the circuit court lost competency to hold the
review hearing following Attorney Wishau’s October 18, 2021 GAL Report. The
circuit court did hold a due process hearing on December 20, 2021, and ordered a
continuation of Bonnie’s protective placement that same date.
¶9 The court also ordered continuation of protective placement on
October 28, 2022. Bonnie appealed on May 2, 2023, challenging the
December 2021 circuit court order. Bonnie’s competency challenge is first raised
before this court.
STANDARD OF REVIEW
¶10 This court reviews independently the question of law whether a
circuit court has lost competency. Village of Trempealeau v. Mikrut, 2004 WI
79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190. “Whether an objection to the
competency of the circuit court can be waived is also a question of law that [this
court] review[s] de novo.” Id. Likewise, questions involving statutory
interpretation are questions of law that this court reviews de novo. Fond du Lac
County v. Helen E.F., 2012 WI 50, ¶10, 340 Wis. 2d 500, 814 N.W.2d 179; Reyes
v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999); see also
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶44-51, 271
Wis. 2d 633, 681 N.W.2d 110. “Finally, when engaging in statutory
interpretation, [this court is] assisted by prior decisions that have examined the
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No. 2023AP757
relevant statutes.” State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d
848.
¶11 To the extent that there are any circuit court findings of fact that are
on appeal, they are not to be overturned unless they are “clearly erroneous.”
Walworth County v. Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671
N.W.2d 377 (quoting Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct.
App. 1998)). A circuit court’s “factual findings will be upheld as long as they are
supported by any credible evidence or reasonable inferences that can be drawn
therefrom.” Insurance Co. of N. Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845,
586 N.W.2d 691 (Ct. App. 1998) (quoting Schreiber v. Physicians Ins. Co. of
Wis., 217 Wis. 2d 94, 102, 579 N.W.2d 730 (Ct. App. 1998), aff’d, 223 Wis. 2d
417, 588 N.W.2d 26 (1999)).
DISCUSSION
¶12 The legislature took care to enact a statutory provision to provide a
protective placement system for certain vulnerable citizens that was “designed to
encourage independent living and to avoid protective placement whenever
possible.” County of Dunn v. Goldie H., 2001 WI 102, ¶29, 245 Wis. 2d 538, 629
N.W.2d 189 (quoting WIS. STAT. § 55.02). The purpose of WIS. STAT. ch. 55 is
spelled out in § 55.001:
The legislature recognizes that many citizens of the state,
because of serious and persistent mental illness, …
developmental disabilities, or other like incapacities, are in
need of protective services or protective placement. [These
services] should, to the maximum degree of feasibility …
allow the individual the same rights as other citizens, and
… protect the individual from financial exploitation, abuse,
neglect, and self-neglect. This chapter is designed to
establish those protective services and protective
placements, to assure their availability to all individuals
when in need of them, and to place the least possible
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restriction on personal liberty and exercise of constitutional
rights consistent with due process and protection from
abuse, financial exploitation, neglect, and self-neglect.
¶13 Our supreme court, concerned that protective placements under WIS.
STAT. ch. 55 were “indefinite in duration and thereby [were] tantamount to a life
sentence to a nursing home or other custodial setting,” held that the former
statutory provisions violated equal protection because there were “no periodic,
automatic reexaminations of the need for continued placement.” State ex rel.
Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 76-77, 362 N.W.2d 104(1985). Accordingly, “[t]he Watts court established rules for extending Chapter
55 protective placements.” Goldie H., 245 Wis. 2d 538, ¶25.
It required an annual review by a judicial officer and the
appointment of a guardian ad litem, who is to meet with the
protectively placed person, review the protective service
agency’s report, and after consultation with the protectively
placed individual, report to the court with recommendations
regarding the need for protective placement.
Id.¶14 This appeal asks this court to examine part of that annual judicial
review procedure and challenges the competency of the circuit court due to the
fact that a guardian ad litem was not reappointed every year for Bonnie.
I. The circuit court did not lose competency.
¶15 “The circuit court’s competency refers to its ‘ability to exercise the
subject matter jurisdiction vested in it’ by Article VII, Section 8 of the Wisconsin
Constitution.” State v. Green, 2021 WI App 18, ¶64, 396 Wis. 2d 658, 957
N.W.2d 583 (quoting Mikrut, 273 Wis. 2d 76, ¶¶8-10). A circuit court’s
competency is implicated “when the failure to abide by a statutory mandate is
‘central to the statutory scheme.’” Mikrut, 273 Wis. 2d 76, ¶10 (citation omitted).
8
No. 2023AP757
A. The statute does not require annual reappointments of guardians
ad litem.
¶16 The statute in question does not reference the duration or termination
of a guardian ad litem. WISCONSIN STAT. § 55.18(2) states only that “[a]fter a
county department has filed a report with the court under sub. (1)(a)1., the court
shall appoint a guardian ad litem in accordance with s. 757.48(1).” The referenced
statutory provision, WIS. STAT. § 757.48(1), likewise does not list the duration of a
guardian ad litem’s service, nor does it state when the appointment should be
terminated. It merely speaks to the necessary qualifications of a guardian ad litem.
¶17 “[S]tatutory language is interpreted 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.”
Kalal, 271 Wis. 2d 633, ¶46. It necessarily follows that the court may not add
language to a statute. This canon of construction was nicely summarized by our
supreme court in State v Neill, 2020 WI 15, ¶¶22-23, 390 Wis. 2d 248, 938
N.W.2d 521, as follows:
We also attempt “to give reasonable effect to every
word, in order to avoid surplusage,” [Kalal, 271 Wis. 2d
633, ¶46], and apply the fundamental canon of statutory
construction that “[n]othing is to be added to what the text
states or reasonably implies[.]” Id.; Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 93 (2012). “A matter not covered is to be
treated as not covered.” Lopez-Quintero v. Dittmann,
2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480(quoting Scalia & Garner, Reading Law 93).
“One of the maxims of statutory construction is that
courts should not add words to a statute to give it a certain
meaning.” Fond du Lac Cty. v. Town of Rosendale, 149
Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)
(citation omitted); see also Dawson v. Town of Jackson,
2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316 (“We
decline to read into the statute words the legislature did not
see fit to write.” (citation omitted)); State v. Wiedmeyer,
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2016 WI App 46, ¶13, 370 Wis. 2d 187, 881 N.W.2d 805(“It is not up to the courts to rewrite the plain words of
statutes[.]”). “[R]ather, we interpret the words the
legislature actually enacted into law.” State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165.
Id. (alterations in original).
¶18 Bonnie appears to be asking this court to add words into the relevant
statute. She argues that it is not just that a circuit court “shall” appoint a guardian
ad litem after an annual report is filed, but that the appointment must be made
immediately after such a filing. And, she asserts that the appointment somehow
expires right after a hearing is held so that it must be made immediately after each
filing. None of those words are included in the statute. It is not this court’s
“function to add language or exceptions to a statute because the statute, as written,
may seem unwise.” A. & A.P. v. Racine County, 119 Wis. 2d 349, 355, 349
N.W.2d 743 (Ct. App. 1984). In this case, it cannot even be said that the statute as
written is unwise. Bonnie is correct that the County’s filing of a report “triggers”
the appointment of a guardian ad litem, but she is incorrect that the statute
demands that a guardian ad litem appointment is terminated after a hearing or that
reappointments are required annually. Her position, aside from being contrary to
the plain language of the statute, is frankly absurd and unreasonable for several
reasons.
¶19 First, the legislature has clearly sought to protect the rights and
interests of individuals deemed to need guardianships and protective placements.
See WIS. STAT. § 55.001. That explains why guardians ad litem are to be
appointed for these vulnerable individuals. Watts, 122 Wis. 2d at 84-85. Such
guardians ad litem are to speak with and garner the wishes of their wards; they are
to understand what is in the best interest of their wards. See Goldie H., 245
Wis. 2d 538, ¶25.
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No. 2023AP757
¶20 This leads to the second reason: a guardian ad litem who has had the
opportunity to speak with and observe the ward over more than just a month or
two provides better assistance to the circuit court and support to the ward. See
Helen E.F., 340 Wis. 2d 500, ¶26 (guardians ad litem provide “a second set of
watchful eyes sensitive to [the ward’s] needs at each step of the commitment
process”). Individuals who are subject to protective placements may have mental
or physical disabilities that change over time and a guardian ad litem who has a
relationship built over time with the ward has a better ability to more fully apprise
the court of the ward’s current condition, circumstances, and wishes.
¶21 Also, it makes little sense to terminate guardians ad litem after the
court’s hearing and protective placement order; better that they should remain in
place in case the ward has any issues or concerns that arise in the time between a
court order and the next petition. An automatic termination of the appointment
runs the significant risk that the ward would be left without an advocate for ten
months out of each year. As our supreme court explains in Helen E.F., a guardian
ad litem “must file periodic reports with the court outlining the need for continued
protective placement and services, see [WIS. STAT.] § 55.18(2), and the need for
continued involuntary administration of psychotropic medication, see [WIS. STAT.]
§ 55.19(2).” 340 Wis. 2d 500, ¶27. Thus, there are duties that remain even after a
protective placement order has been executed.
¶22 Finally, turning to practical and logistical matters, there is a limited
pool of individuals who are available for guardian ad litem appointments.
Reappointments may diminish that pool or create conflicts of interest. And
continually appointing, terminating and reappointing the same attorney could
cause multiple billing accounts and a waste of judicial time and resources.
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No. 2023AP757
¶23 “The purposes underlying a statute are also useful in ascertaining a
statute’s meaning.” Soto, 343 Wis. 2d 43, ¶20. WISCONSIN STAT. ch. 55
“implicate[s] the rights of thousands of persons who have been protectively placed
in Wisconsin institutions because of the infirmities of age, chronic mental illness,
developmental disabilities, or similar incapacities.” Goldie H., 245 Wis. 2d 538,
¶4. It was enacted to “address the legislature’s concern that these citizens be given
the maximum freedom with the minimum restriction that their troubled conditions
allow.” Id. There is no question that “[t]he legislature has consistently
demonstrated its concern for the protection of individuals suffering from mental
[and other] infirmities.” Helen E.F., 340 Wis. 2d 500, ¶11.
¶24 WISCONSIN STAT. chs. 51 and 55 provide distinct and unique
protective statutes that were designed to protect distinct sets of individuals. Watts,
122 Wis. 2d at 74-75. It is only in ch. 55, however, that the legislature has
mandated that wards shall have their interests protected by a guardian ad litem.
Helen E.F., 340 Wis. 2d 500, ¶24; § 55.10(4)(b). This is because “[t]he
appointment of a GAL ensures that individuals like [Bonnie] are provided
adequate and specialized care.” See Helen E.F., 340 Wis. 2d 500, ¶24. The
legislature put this provision in place
because it recognized that individuals subject to the chapter
need an additional advocate for their best interests, given
that ch. 55 is focused on the provision of long-term care to
individuals with incurable conditions. See § 55.195(1-9)
(explaining the duties of the GAL); see Jennifer M. v.
Maurer, 2010 WI App 8, ¶7, 323 Wis. 2d 126, 779 N.W.2d
436 (stating that a GAL provides “an advocate for the best
interest of the ward.”)[.]
Helen E.F., 340 Wis. 2d 500, ¶25. When compared to ch. 51, ch. 55 “is designed
for long-term management of disorders that cannot be treated, and therefore are
unlikely to subside, meaning that the individual in need of protection is unlikely to
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No. 2023AP757
return to society.” Helen E.F., 340 Wis. 2d 500, ¶25. This, our supreme court
explains, is precisely why “periodic assessments by a GAL of the individual’s
situation are essential to the continual provision of appropriate care.” Id.¶25 If Bonnie’s argument is successful, it will have the immediate and
dire consequence that individuals in protective placement will automatically lose
their guardian ad litem’s advocacy after protective placement is reordered each
and every year and will be at the mercy of their guardian and their county of
residence until a petition and annual report is filed ten or eleven months later. Any
issues that a guardian ad litem could learn during that timeframe, and any new
information that could have been seen by that “second set of watchful eyes” would
remain undisclosed to the court for almost one full year. See id., ¶26. This was
the underlying rationale that led our supreme court to extend statutory protections
to wards under WIS. STAT. ch. 55’s auspices in Watts. Bonnie’s interpretation
would lay waste to this additional layer of protection.
¶26 This unreasonable reading of the statute would leave a large
population of vulnerable individuals unprotected for a majority of the time. As
our supreme court noted in Watts, the procedure by which a guardian or ward can
seek court modification of an order for protective placement (now codified at WIS.
STAT. § 55.16) is inherently inadequate:
“[T]heir protection is illusory when a large segment of
the protected class cannot realistically be expected to set
the proceedings into motion in the first place. It is the state,
after all, which must ultimately justify depriving a person
of a protected liberty interest by determining that good
cause exists for the deprivation.”
Watts, 122 Wis. 2d at 78 (alteration in original) (quoting Doe v. Gallinot, 657 F.2d
1017, 1023 (9th Cir. 1981)).
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¶27 In general, the appointment of a WIS. STAT. ch. 55 guardian ad litem
continues until a circuit court terminates the appointment, appoints a new guardian
ad litem, or the guardian ad litem withdraws from the appointment.14 Bonnie is
incorrect in asserting that the statutes mandate annual reappointments of guardians
ad litem in order for a circuit court to maintain competency.
¶28 So, what happened here, and did it follow the legislature’s mandate?
Racine County filed a petition for annual review on July 26, 2018. A guardian ad
litem was already in place; that attorney filed a GAL Report, the circuit court
conducted a hearing, and a new protective placement order was issued on
November 8, 2018. But on January 24, 2019, for unknown reasons, the circuit
court appointed a different guardian ad litem for Bonnie. That guardian ad litem
never filed a report. And, on June 12, 2019, the court appointed Attorney Wishau
as Bonnie’s new guardian ad litem. On August 27, 2019, the County filed a
petition for annual review and Attorney Wishau filed a GAL Report on
September 16, 2019.
¶29 That means that the circuit court appointed a guardian ad litem for
Bonnie after the 2010 annual report was filed, and he remained in place until
January, 2019; that satisfied the statutory requirement. Then, the court appointed
14
Bonnie’s reference to the state forms as evidence that a guardian ad litem may only
file a GAL Report within thirty days of their appointment gives undue weight to a form; it
elevates a form over the statute’s clear language. It further misconstrues the language in the
form.
The order states that a “matter is pending” in the circuit court and Bonnie “requires the
appointment of a guardian ad litem.” The order did not state how long the appointment of
Attorney Wishau as guardian ad litem was to last, and it did not state that a guardian ad litem
would have to be reappointed every year if a subsequent petition for annual review was filed by
the County. Nor did the order state that the appointment of Attorney Wishau was solely with
respect to a specific hearing or hearings.
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a guardian ad litem after the 2018 petition for annual review. That makes clear
that the circuit court complied with WIS. STAT. § 55.18(2) and did appoint a
guardian ad litem after the County filed a report. In point of fact, the court kept in
place the prior 2010 guardian ad litem and then appointed two more guardians ad
litem in 2019. Thus, there was a guardian ad litem for Bonnie when the County
filed its 2019 petition for annual review. The legislature’s statutory mandate that
Bonnie have a guardian ad litem representing her interests whenever an annual
report was filed was satisfied. Her interests in the ten months in between were
also protected by the continual service of the appointed guardian ad litem. There
remained “a second set of watchful eyes sensitive to [Bonnie’s] needs at each step
of the commitment process and on a regular basis after the issuance of a protective
order.” Helen E.F., 340 Wis. 2d 500, ¶26.
B. Case law confirms there is no reappointment requirement.
¶30 In determining which option to select in order to remedy the
unconstitutionality of the guardianship law, the Watts court stated it could
“[r]equire annual implementation of the procedure ... for initial guardianship and
protected placement actions,” but it expressly declined to do so:
We hold it is not necessary for equal protection purposes to
annually commence the procedure as if it were the initial
petition for placement. A periodic consideration by a court
affords an independent, impartial reconsideration of the
existing circumstances of the placed person.
Watts, 122 Wis. 2d at 83-84. This is further evidence that neither Watts nor the
statutes require annual guardian ad litem appointments under WIS. STAT. ch. 55.
¶31 Finally, without a conclusion directly on this point, the state supreme
court in Helen E.F. implicitly indicated in three separate statements that guardians
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ad litem need not be reappointed annually but rather may have an appointment that
spans more than one year. First, the court held that “periodic assessments by a
GAL of the individual’s situation are essential to the continual provision of
appropriate care.” Helen E.F., 340 Wis. 2d 500, ¶25 (emphasis added). The court
mentioned assessments (plural) and continual care, implying guardian ad litem
service of more than one year. Next, the court stated that “[a]lthough Helen’s
appointed counsel also had Helen’s best interests in mind, a GAL would have
provided a second set of watchful eyes sensitive to Helen’s need at each step of
the commitment process and on a regular basis after the issuance of a protective
order.” Id. at ¶26 (emphasis added). Again, this implies that a guardian ad litem
has more duties to the ward than just filing one report. Finally, the court explained
that
the GAL must file periodic reports with the court outlining
the need for continued protective placement and services,
and the need for continued involuntary administration of
psychotropic medication. In short, the GAL would have
provided the court with advice as to Helen’s best interest
regarding psychotropic medication throughout the
pendency—and continuance—of the protective placement
under [WIS. STAT.] ch. 55. Such advice would have given
the court valuable assistance in overseeing Helen’s care
with particular sensitivity to her unique needs.
Id. at ¶27 (emphasis added; citations omitted).
¶32 Each of these references can be read to indicate that a guardian ad
litem could serve—and maybe should serve—for an extended period of time in
order to provide the most assistance to both the ward and the circuit court. There
is a strong presumption that the more knowledge a guardian ad litem has of the
ward, the better that ward’s interests would be protected both during the time
between annual reports and at any due process hearings before the circuit court.
This further negates Bonnie’s interpretation of the statutory language.
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C. The local rules also support the County’s interpretation.
¶33 Finally, the County argues that the Racine County Circuit Court
Rules further support the statutory interpretation that guardians ad litem in chapter
55 protective placements continue to serve until they are terminated. The rules
provide with respect to the “ANNUAL REVIEW OF PROTECTIVE
PLACEMENT (WATTS REVIEW) §55.18 AND ANNUAL REVIEW OF
INVOLUNTARY MEDICATION ORDER UNDER §55.19” that “[t]he GAL
appointment will continue for all annual reviews. If a new GAL is needed, the
court will appoint one.” Racine County Circuit Court Rules, Rule V.O.b. (2022).15
¶34 Bonnie correctly notes that if procedures set forth in local rules
conflict with a statute, the statute applies. But the local rule here does not conflict
with the statute. They actually both stand for the same proposition: a guardian ad
litem, appointed by the circuit court after a petition for annual review, remains in
place until that appointment is terminated by the court. Bonnie is incorrect when
she asserts that the tethering of the GAL’s Report deadline to the appointment date
necessarily means that a guardian ad litem must be reappointed each and every
year.
¶35 This court concludes that there is no requirement for an annual
reappointment of a guardian ad litem for wards under state protective placement
services. It is correct that a guardian ad litem shall be appointed after a petition is
filed, but, once that appointment is made, the circuit court retains competency over
the protective placement proceedings until the appointment is terminated and a
15
The Racine County Circuit Court Rules are available at
https://www.racinecounty.com/home/showpublisheddocument/44321/638142972264670000.
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No. 2023AP757
new guardian ad litem is not appointed. Even though this conclusion fully
resolves this appeal, this court addresses the other competency question at issue.
II. The competency challenge could be and was waived.
¶36 There is a general rule that “challenges to the circuit court’s
competency are waived if not raised in the circuit court.” Tina B. v. Richard H.,
2014 WI App 123, ¶23, 359 Wis. 2d 204, 857 N.W.2d 432 (quoting Mikrut, 273
Wis. 2d 76, ¶30).
However, the Mikrut court noted a longstanding
qualification to the general rule, namely, an exception for
limitation periods within which courts must act as
mandated by statutes: [W]e have consistently ruled that a
court’s loss of power due to the failure to act within
statutory time periods cannot be stipulated to nor waived.
Tina B., 359 Wis. 2d 204, ¶23 (quoting Mikrut, 273 Wis. 2d 76, ¶25); see also
Sheboygan Cnty. Dep’t of Soc. Servs. v. Matthew S., 2005 WI 84, ¶37, 282
Wis. 2d 150, 698 N.W.2d 631 (“[A] competency challenge based on the violation
of the statutory time limitation of WIS. STAT. § 48.422(2) cannot be waived, even
though it was not raised in the circuit court.”).
¶37 In cases where a party need not first challenge competency in the
circuit court, a specific time limit or mandated deadline must be at issue. For
instance, a circuit court in a termination of parental rights case is required, under
WIS. STAT. § 48.422(2), to hold a fact-finding hearing within forty-five days of a
contest to the petition, and if it fails to do so, and no extensions or continuances
have been legally granted, that court not only loses competency but a parent may
raise that challenge for the first time on appeal. This is because it is such a
fundamental basis underlying the ultimate conclusions that it cannot be ignored no
matter when it is raised. See Tina B., 359 Wis. 2d 204, ¶¶19-20 (explaining that
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No. 2023AP757
circuit court lost competency when it held a hearing under WIS. STAT. ch. 54 more
than ninety days after the petition filing date even though all parties agreed to an
extension of time and no party raised a challenge to competency). There can be no
valid order or judgment when a court has no legal authority to act.
¶38 But the statute at issue here requires that a guardian ad litem be
appointed by the circuit court after a petition for annual review regarding
protective placement services is filed by a county. See WIS. STAT. § 55.18(2).
There is no time limit in which that appointment must be made; the only
requirement is that it be made at some point in time. Thus, the competency
challenge made here by Bonnie is not based, as she asserts, on a violation of a
statutory time limit, much less one that cannot be waived even if it is not made in
front of the circuit court. See Matthew S., 282 Wis. 2d 150, ¶2; Mikrut, 273
Wis. 2d 76, ¶3 n.1.
¶39 Bonnie contends that statutory time limit violations may never be
waived in any type of case. The court in Matthew S. certainly implies the
same16—but that case focused on the Children’s Code (WIS. STAT. ch. 48) and not
guardianship (WIS. STAT. ch. 54) or protective placement services (WIS. STAT.
ch. 55) cases. A review of unpublished ch. 55 protective placement appellate
decisions is instructive; it reveals that, while circuit court competency challenges
have been raised in limited circumstances, they have only been successful if a
16
In fact, albeit in an unpublished opinion, the court in Constance N. v. Anna Maye Z.,
No. 2009AP795, unpublished slip op. ¶15 (WI App Feb. 9, 2010), distinguished the “never
waived” holding of Matthew S. even where there was a statutory time limit when the subject
individual sought the delay and expressly consented to an extension she stated was “necessary for
her to properly contest the petitions.” Unpublished Wisconsin cases, issued on or after July 1,
2009, may not be cited for precedential value, but may be cited for persuasive value. See WIS.
STAT. RULE 809.23(3)(a), (b).
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No. 2023AP757
statutory deadline has been missed. 17 Bonnie’s broad-stroke contention, however,
need not be resolved in this appeal because no statutory time limits or mandatory
deadlines are applicable to her competency challenge. See, e.g., State v.
Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (appellate courts need not
address nondispositive issues).
CONCLUSION
¶40 This court agrees with our state supreme court that “[t]aking a few
moments to protect the rights of our most vulnerable citizens is not an
unacceptable cost to society. It is an expression of our humanity.” Goldie H., 245
Wis. 2d 538, ¶35. Even more than that, “[i]t is a commitment that no person will
be warehoused and forgotten by the legal system.” Id. This appeal—and others
concerning wards under protective placement—is important and deserves careful
consideration.
¶41 Based upon the foregoing, this court concludes that there is no
statutory requirement that a circuit court in a WIS. STAT. ch. 55 protective
placement proceeding must annually reappoint a guardian ad litem for the ward.
The legislative mandate favors the continued service of a guardian ad litem to
provide “a second set of watchful eyes sensitive” to the ward’s needs “at each step
17
See Department on Aging v. R.B.L., No. 2022AP1431, unpublished slip op. ¶7 (WI
App June 27, 2023) (concluding circuit court lost competency when petition for annual review of
protective placement was filed after statutory deadline and R.B.L.’s physical presence at annual
review hearing was required and not properly waived); Lipp v. Outagamie Cnty. Dep’t of Health
& Hum. Servs., No. 2011AP152, unpublished slip op. ¶2 (WI App June 5, 2012) (concluding
“circuit court lost competency to act on the guardianship petition by failing to complete the
hearing within the statutorily mandated time limitation”); Brown County v. Marilyn M., No.
2005AP3051, unpublished slip op. ¶10 (WI App June 27, 2006) (determining that “the Watts rule
is not a mandatory statutory time limit” so a challenge to the circuit court’s competency to
proceed with a “Watts review” can be waived if not raised before the circuit court).
20
No. 2023AP757
of the commitment process and on a regular basis after the issuance of a protective
order.” Helen E.F., 340 Wis. 2d 500, ¶26. Accordingly, the circuit court in this
appeal did not lose competency over Bonnie’s protective placement proceeding.
¶42 In addition, while some competency challenges may never be
waived, the procedure at issue here is not subject to a statutorily mandated
deadline, and thus, Bonnie waived her right to challenge the circuit court’s
competency by failing to raise that objection below.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
21